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Wellington v. Berryhill

United States Court of Appeals, Ninth Circuit

December 29, 2017

Laurie L. Wellington, Plaintiff-Appellant,
v.
Nancy A. Berryhill, Acting Commissioner Social Security, Defendant-Appellee.

          Argued and Submitted September 14, 2017 San Francisco, California

         Appeal from the United States District Court for the Eastern District of California D.C. No. 1:14-cv-01207-SMS Sandra M. Snyder, Magistrate Judge, Presiding

          Lawrence D. Rohlfing (argued), Santa Fe Springs, California, for Plaintiff-Appellant.

          Elizabeth Firer (argued) and Marcelo Illarmo, Special Assistant United States Attorney; Deborah Lee Stachel, Regional Chief Counsel, Region IX; Phillip A. Talbert, Acting United States Attorney; Social Security Administration, San Francisco, California; for Defendant-Appellee.

          Before: Ronald M. Gould and Paul J. Watford, Circuit Judges, and W. Louis Sands, [*] District Judge.

         SUMMARY[**]

         Social Security

         The panel affirmed the district court's order affirming the Social Security Administration Commissioner's denial of a claimant's application for Social Security Disability Insurance benefits and partial denial of the claimant's application for Supplemental Security Income benefits.

         The panel rejected claimant's contention that Social Security Ruling ("SSR") 82-30 required the administrative law judge ("ALJ") to call a medical advisor at the hearing to help determine claimant's disability onset date. The panel held that under ordinary circumstances, an ALJ was equipped to determine a claimant's disability onset date without calling on a medical advisor. The panel held that because the record was adequate even before claimant saw a mental health specialist and no reasonable medical expert could have inferred that her disability began before May 2010, SSR 83-20 did not require the ALJ to consult a medical advisor before determining claimant's disability onset date.

         Judge Watford dissented. Because the evidence was ambiguous as to when claimant's impairments became disabling, Judge Watford would hold that the ALJ erred in determining that the record conclusively supported May 26, 2010 as the date claimant's impairments became severe enough to prevent her from engaging in substantial gainful activity; and he would remand for the ALJ to appoint a medical advisor in the case.

          OPINION

          GOULD, Circuit Judge.

         Laurie Wellington appeals from the district court's order affirming the Social Security Administration Commissioner's denial of her application for Social Security Disability Insurance benefits and partial denial of her application for Supplemental Security Income benefits. The Administrative Law Judge concluded that Wellington was not disabled until May 26, 2010, after both the period in which she was insured for SSDI benefits and the date on which she applied for SSI benefits. On appeal, Wellington contends that the ALJ erred by not calling a medical advisor at the hearing to help determine the onset date of her disabilities. We reject this contention and we affirm.

         I

         Wellington experienced psychological trauma throughout her life. As a child, she suffered chronic sexual abuse and shielded her younger siblings from domestic violence at home. As an adult, she was regularly beaten by an ex-boyfriend over the course of eight years, was emotionally abused by her ex-husband during their twelve-year relationship, and was stalked by this ex-husband after their divorce. Wellington has been diagnosed with post-traumatic stress disorder and an unspecified anxiety disorder.

         Wellington has several physical ailments as well. She primarily suffers from chronic muscle pain, and she was diagnosed with fibromyalgia in 2009. She also has a history of back pain and chest pain, and some less serious conditions.

         Despite her psychological and physical impairments, Wellington was able to lead a productive life for many years. She dropped out of high school and apparently did not work in her 20s, but she obtained her GED at age 32. She then completed a nine-month college program in medical assisting and worked as a certified nursing assistant for three years until she hurt her back. The extent of this injury is not clear from the record, but Wellington stayed out of the work force for six years. In 2005, she returned to work as a cashier at a convenience store, where she worked for two and a half years. Wellington kept this job until she was required to work 50-hour weeks, which aggravated her back pain. She then worked part-time at a department store for eight months.

         In December 2008, however, Wellington repeatedly took medical leave and was fired from her department store job when she did not return to work. In the month before she was fired, Wellington went to the emergency room eight times, and on one occasion admitted herself for a three-day inpatient stay. She appeared anxious or complained of anxiety-related symptoms in half of these visits, while the other visits involved treatment for vertigo, migraine headaches, or abdominal pain.

         In the month after losing her job, Wellington went back to the emergency room four times, again exhibiting or complaining of anxiety in half of these visits while seeking unrelated treatment-for vertigo, ringing in her ears, and arm numbness-in the rest. An emergency doctor gave Wellington a prescription for Xanax to manage her anxiety, and she did not return to the ER for a month afterward. In the next visit she said her anxiety was "better now" and she was treated for acute vomiting. Wellington returned a week later requesting more Xanax and appearing anxious. She ran out of medication three weeks later and again went back to the emergency room, where she was prescribed a different drug.

         On March 16, 2009, Wellington went to a health center for the first time on record and was given a two-month Klonopin prescription. Subsequent medical records show routine treatment of her anxiety disorder. Wellington received a one-month refill of Klonopin in May, but the prescription was not renewed at her appointment the following month. Wellington requested and received another one-month refill in July. But the prescription again was not renewed the following month. Wellington complained of increased life stressors and anxiety in September, so she received a stronger prescription that was increased once more in October. The prescription was decreased in December when Wellington had no complaints of anxiety, and it was not renewed in January 2010, the last record from ...


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