                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                    F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                                      June 9, 2006
                                 FOR THE FIFTH CIRCUIT                          Charles R. Fulbruge III
                                                                                        Clerk


                                         No. 05-40366



       GORDON D. MCLENDON,

                                                           Plaintiff-Appellant,

                                             versus

       JO ANNE B. BARNHART, COMMISSIONER
       OF SOCIAL SECURITY,

                                                           Defendant-Appellee.


                      Appeal from the United States District Court for
                               the Eastern District of Texas
                                (USDC No. 2:03-CV-1849)



Before REAVLEY, CLEMENT and PRADO, Circuit Judges.

PER CURIAM:*

       Reviewing under the same standard as the district court, we affirm the ALJ’s final

decision denying McLendon’s claim for disability insurance benefits under Title II of the



       *
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Social Security Act, 42 U.S.C. § 401 et seq., for the following reasons:

       1.     We find that the ALJ’s decision comports with the legal standards for

              disability determination set forth by this Court under the Act and relevant

              regulations, including our decisions in Likes v. Callahan, 112 F.3d 189 (5th

              Cir. 1997) and Ivy v. Sullivan, 898 F.2d 1045 (5th Cir. 1990).

       2.     We find there is substantial evidence of record supporting the ALJ’s

              determination that McLendon is not disabled within the meaning of the Act.

       3.     As McLendon’s Title II insured status expired on June 30, 1977, he must

              establish that he became disabled on or before that date to be eligible for

              benefits. Ivy, 898 F.2d at 1048. The mere presence of an impairment does

              not necessarily establish a disability. If a claimant has a degenerative or

              ongoing impairment, the relevant inquiry is whether the claimant was

              actually disabled during the relevant time, not whether a disease existed that

              ultimately progressed to a disabling condition. Evidence showing a

              degeneration of a claimant’s condition after the expiration of his Title II

              insured status is not relevant to the Commissioner’s Title II disability

              analysis. See Torres v. Shalala, 48 F.3d 887, 894 n.12 (5th Cir. 1995).

                     We have recognized, however, that retrospective medical diagnoses

              may constitute relevant evidence of pre-expiration disability, and that

              properly corroborated retrospective diagnoses can be used to establish

              disability onset dates. Likes, 112 F.3d at 190-91. An ALJ may not refuse

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     to consider retrospective diagnoses uncorroborated by contemporaneous

     medical reports, but corroborated by lay testimony. Id. We have also

     recognized that precise contemporaneous medical records are not always a

     prerequisite to establishment of a disability onset date. Ivy, 898 F.2d at

     1049.

4.   In this case, we do not think the ALJ ran afoul of either Likes or Ivy. In

     Likes, two mental health professionals expressly opined that Likes had

     suffered from chronic post traumatic stress disorder since well before his

     date last insured. 112 F.3d at 190.

             In Ivy, in addition to being corroborated by lay testimony, the

     medical evidence clearly demonstrated a long chronology and consistent

     history of serious obesity as well as severe hypertension, the chief

     impairment complained of. 898 F.3d at 1046-47. The ALJ faulted the

     contemporaneous records in that they did contain precise blood pressure

     readings and recordings of Ivy’s height and weight during the period of

     elevated blood pressure. Id. We rejected the ALJ’s insistence on such

     precision in the face of other overwhelmingly persuasive medical and lay

     evidence of severe impairment, which included the testimonial recollections

     of the doctor who treated Ivy contemporaneously with her alleged onset.

     Id. at 1048-49.

5.   Here, the problem is not a lack of record detail, but a complete dearth of

                                     3
     any medical evidence prior to 1986, coupled with a lack of any express

     retrospective medical opinion relating back to the insured period. While the

     ALJ had potentially corroborating lay evidence before her, no physician of

     record referred back in time or speculated as to McLendon’s condition on

     some prior date, much less expressed specific opinions about the onset date

     of McLendon’s lung or fatigue impairments.

            The only evidence before the ALJ relating to McLendon’s alleged

     pre-1977 disability was a single chart note made in 1986, which refers to

     McLendon’s own comments regarding his long-term fatigue, and an X-ray

     report made in 1996, noting signs of emphysema related to chronic

     obstructive pulmonary disease (COPD). Isolated comments regarding a

     patient’s complaints do not constitute medical findings as required by the

     Act. See 20 C.F.R. §§ 404.1528-1529. Aside from the passing

     retrospective X-ray chart entry, the record contains no medical conclusions

     about the existence of McLendon’s COPD or chronic fatigue syndrome

     impairment prior to June 30, 1977. This reference, when considered in

     light of the entire record, does not establish the existence of McLendon’s

     severe medical impairment as far back as that date.

6.   While a retrospective opinion can prove the existence of a disability, the

     retrospective opinion must refer clearly to the relevant period of disability

     and not simply express an opinion to the claimant’s current status. Records

                                    4
            describing a claimant’s current condition cannot be used to support a

            retrospective diagnosis of disability absent evidence of an actual disability

            during the time of insured status. Accordingly, the ALJ did not err in

            declining to give retrospective consideration to the reports and evaluations

            of McLendon’s post-1977 ailments.

    7.      Finally, we note that McLendon’s activities subsequent to the date last

            insured, while not always monetarily remunerated, belie his subjective

            contention that he was disabled prior to that date. See Reyes v. Sullivan,

            915 F.2d 151, 154-55 (5th Cir. 1990)(recognizing that a claimant’s daily

            activities are relevant in assessing subjective complaints).

AFFIRMED.




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