Likes v. Callahan

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 8, 1997
• Docket: 96-10875
• Status: Published

Opinion

United States Court of Appeals,

Fifth Circuit.

No. 96-10875

(Summary Calendar).

Danny E. LIKES, Plaintiff-Appellant,

v.

John J. CALLAHAN, Acting Commissioner of Social Security, Defendant-Appellee.

May 8, 1997.

Appeal from the United States District Court for the Northern District of Texas.

Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.

PER CURIAM:

Danny E. Likes appeals from the judgment affirming the

Commissioner's denial of Likes' claim for disability benefits under

the Social Security Act. Likes alleges that he was disabled before

his insured status ran out in 1985. Likes contends that his

disability is caused by post-traumatic stress disorder (PTSD)

stemming from his 1966 war duty in Vietnam.

Likes underwent an examination in July 1968, in conjunction

with a disability application from the Veteran's Administration

(VA) for his service-related injuries. In the report, Likes was

described as "a nervous person." The examiner wrote that Likes was

"a complaining type of individual who makes one wonder from the

very beginning if there is not a psychiatric function." The

examiner further commented, "There is mild anxiety reaction

manifest in complaints of his present illness and post military

1 period." There are no other medical reports mentioning Likes'

mental problems until Likes was diagnosed with chronic PTSD in

1991. Two mental health professionals have opined that Likes has

suffered from chronic PTSD since 1966. The record also includes

testimony by Likes' wife describing Likes' poor anger control and

dissociative episodes since 1981.

The ALJ found that Likes did not have a medically determinable

mental impairment and that he was not disabled as of, or prior to,

December 31, 1985. The ALJ accepted that Likes has suffered from

severe PTSD from 1991, but determined that the 1968 examination and

Likes' uncorroborated statements were not sufficient to establish

that he had a medically determinable mental impairment before his

insured status expired. The ALJ further determined that there was

no authority for relating Likes' present mental illness back to

December 1985 on the basis of the testimony of Likes and his wife,

which was not corroborated by "objective evidence, such as

psychiatric counseling."

The issue in this case is whether retrospective medical

diagnoses uncorroborated by contemporaneous medical reports but

corroborated by lay evidence relating back to the claimed period of

disability can support a finding of past impairment. Likes urges

us to adopt the reasoning applied in a recent Eighth Circuit

decision and remand this case to the ALJ to consider the

retrospective medical opinions and corroborating lay evidence. See

Jones v. Chater, 65 F.3d 102 (8th Cir.1995).

In Jones, the claimant alleged that he was disabled by PTSD

2 prior to 1975, before his insured status had expired. Id. at 103.

Jones' mental evaluation at his discharge in 1968 revealed

occasional insomnia, bad dreams, and mild depression; the report

concluded that these symptoms were in the normal range. Id. Jones

had no further medical reports mentioning mental problems until

1991, when Jones, upon learning of the existence of PTSD and

recognizing many of its symptoms in himself, sought diagnosis and

treatment for the condition. Id. Three mental health

professionals diagnosed Jones as suffering from PTSD, and found

implicitly that his PTSD symptoms had been present since he left

Vietnam in 1968. Id. The record also included statements from

Jones' relatives that his personality was changed dramatically for

the worse by his Vietnam experience. Id.

Like the ALJ here, the ALJ addressing Jones' application found

that although Jones' current diagnosis of PTSD may be valid, there

was no medical evidence showing that the condition had arisen by

1975, much less that it constituted a severe impairment. Id. The

ALJ did not mention the retrospective medical opinions or the

evidence of personality and behavior change. Id.

The Eighth Circuit concluded that the retrospective medical

diagnoses, uncorroborated by contemporaneous medical reports but

corroborated by lay evidence relating back to the claimed period of

disability, could support a finding of past impairment. Id. at

103-04. Because the court could not determine whether the ALJ

considered this evidence, it remanded the case to the ALJ "to

develop the record in such a way as to" determine whether the

3 impairment began before Jones' insured status expired. Id. at 104.

We find the Eighth Circuit's decision persuasive and

therefore adopt its rule for this circuit. As the Eighth Circuit

noted, "PTSD is an unstable condition that may not manifest itself

until well after the stressful event which caused it, and may wax

and wane after manifestation." Id. at 103. Retrospective medical

diagnoses constitute relevant evidence of pre-expiration

disability, and properly corroborated retrospective medical

diagnoses can be used to establish disability onset dates. As the

ALJ erred in failing to consider the retrospective medical

diagnoses and the corroborating lay evidence, the judgment is

reversed and the case is remanded for further proceedings in

accordance with this opinion.

REVERSED AND REMANDED.