* 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opinion should not be published and is not precedent except under the limited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.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 98-20215

USDC No. H:97-CV-1526

(Summary Calendar)

_________________

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
 

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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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
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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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
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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.