UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 98-20215
USDC No. H:97-CV-1526
(Summary Calendar)
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ANN S. MOSS,
Plaintiff-Appellant,
versus
KENNETH S. APFEL,
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
February 12, 1999
Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Ann S. Moss appeals the district court’s summary judgment
ruling affirming the Commissioner's denial of her application for
disability insurance benefits. We review a grant of summary
judgment de novo, applying the same standard as the lower court.
See Brock v. Chater, 84 F.3d 726, 727 (5th Cir. 1996). Our review
is limited to whether the Commissioner applied the proper legal
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
standards, and whether the Commissioner’s decision is supported by
substantial evidence on the record. See Anthony v. Sullivan, 954
F.2d 289, 292 (5th Cir. 1992). Moss argues that the Administrative
Law Judge (“ALJ”) applied an improper legal standard in evaluating
her chronic fatigue syndrome (“CFS”), and that the ALJ's decision
was not supported by substantial evidence.
Moss alleges that the ALJ applied an improper legal standard
because the ALJ considered her subjective symptoms in accordance
with 20 C.F.R. § 404.1529, instead of evaluating her symptoms in
accordance with the Commissioner’s policy regarding CFS. See
Programs Operations Manual System § DI 24575.005 (1994). She
argues that the ALJ’s search for objective medical evidence led the
ALJ to discredit her testimony as not supported by the record as a
whole.
In order to obtain disability insurance benefits, Moss must
prove the existence of a disabling impairment between her alleged
onset date, January 1992, and the date last insured, March 31,
1992. See 20 C.F.R. § 404.320(b)(2). Moss must prove, therefore,
that her CFS prevented her from working during this time period.
Moss claims that Dr. Toll’s medical record from April 6, 1994
indicates that Dr. Toll suspected that Moss had CFS. This
mischaracterizes the medical record, which reveals that Moss
visited the doctor complaining of CFS and the doctor refrained from
making a diagnosis of CFS.1 Moss claims that Dr. Harrison’s
1
The medical record of April 6 has the word “chronic fatigue” at the
bottom, although it is impossible to tell whether this was the doctor’s
assessment and if so, whether the doctor thought that Moss had CFS before March
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medical record from April 5, 1994 indicates that Dr. Harrison
stated Moss had CFS for 1-1/2 years. First, the reference to CFS
is again found in the patient’s description of her medical
condition. The record does not support any basis for Moss’s
belief, which she related to Dr. Harrison, that she had CFS for 1-
1/2 years. Second, if Moss had CFS for 1-1/2 years before April,
1994, then the onset of CFS occurred around October, 1992, which is
well after the date Moss was last insured. Moss claims that in
October 1994 Dr. Pharo diagnosed Moss with CFS. Dr. Pharo’s
diagnosis does not suggest that Moss had CFS in 1992. Moss has
failed to prove that CFS disabled her before the date she was last
insured, and thus the ALJ did not err in considering her subjective
symptoms under 20 C.F.R. § 404.1529.2
Moss argues that the ALJ’s decision was not supported by
substantial evidence. Moss contends first that the ALJ erred by
adopting a diagnosis of hysterical neurosis and by rejecting a
31, 1992. Accompanying these words were the words “daily marijuana use.” The
record indicates that as part of the patient’s treatment “plan,” the doctor told
the patient to stop smoking drugs. The record also contains Dr. Toll’s progress
notes from a visit on June 6, in which she states that Moss “was seen
approximately two months ago with complaints of CFS. Patient and boyfriend
admitted to smoking marijuana daily for 10 years and was asked to get drug screen
then and return clean [after] 30 days. Patient agreed to this.” This confirms
that Dr. Toll’s reference to CFS in the April 6 medical record was at the
suggestion of Moss. It also indicates that Toll did not diagnose Moss with CFS
on April 6, and preferred to wait until Moss was drug-free to make a diagnosis.
2
The cases cited by Moss are distinguishable because the patients sought
treatment for the CFS symptoms during the time they were insured, and because
their doctors believed later that CFS existed during the time the patients were
insured. See, e.g., Rose v. Shalala, 34 F.3d 13 (1st Cir. 1994); Sisco v. United
States Dep’t of HHS, 10 F.3d 739 (10th Cir. 1993). The record shows that Moss
did not seek treatment for any CFS symptoms prior to March 31, 1992, and there
is no retrospective doctor opinion that Moss suffered from CFS during that time
period.
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diagnosis of CFS. There is substantial evidence in the record to
reject a diagnosis of CFS, as explained above, and to support a
diagnosis of hysterical neurosis. She contends second that the ALJ
improperly rejected the diagnosis of Dr. Pharo. The ALJ did not
err, because Dr. Pharo makes no opinion about Moss’s condition in
1992. Moss contends third that the ALJ erred in relying on the
testimony of the vocational expert, because the hypothetical posed
to the expert did not include Moss’s CFS. The ALJ found that Moss
could perform past work, and thus vocation testimony was not
necessary. See Williams v. Califano, 590 F.2d 1332, 1334 (5th Cir.
1980)(stating vocational testimony is not needed to find a claimant
can perform past work). Thus, the sufficiency of the hypothetical
posed to the vocational expert is irrelevant. Moss has not
established that she was unable to perform her past relevant work.
See 20 C.F.R. § 416.920.
Having reviewed the entire record, we find that the decision
was supported by substantial evidence and the proper legal
standards were used in evaluating the evidence. Accordingly, the
judgment of the district court is AFFIRMED.
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