Laurie Wellington v. Nancy Berryhill

878 F.3d 867
Court of Appeals for the Ninth Circuit·Decided December 29, 2017·No. 16-15188·Published·Cited by 515 cases

Opinions

Dissent by Judge Watford

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 médical 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 wééks 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 this office. These treatment notes indicate that Wellington “doesn’t like taking medication,” though she recognized that her prescriptions did “help with the pain and the anxiety.”

Wellington first saw a specialist for her mental health troubles on May 26, 2010. Dr. Cushman described Wellington as moderately anxious, but he noted that she last took a leftover Klonopin a month ago and that “[s]he does find it helpful in managing her anxiety.” He concluded that Wellington will “have difficulties with regular attendance and consistent participation at this time, with complaints of pain, anxiety and malaise.” Still, Dr. Cush-man assigned Wellington a Global Assessment of Functioning (“GAF”) score of 55, indicating that he believed Wellington had only moderate psychological symptoms.1 Dr. Cushman also noted that Wellington would benefit from counseling.

Wellington took a turn for the worse over the next several months. She began seeing a therapist in June, and in July she reported that she was having more panic attacks because her ex-husband was trying to contact her. In August, Wellington was tearful during most of her counseling session, and she described being emotionally overwhelmed because her father had developed terminal cancer, other, family members were not-getting along, and she recently had to put her dog down. Wellington was advised to restart Klonopin and was given a new prescription. Her father passed away the following month. At her next counseling appointment, Wellington showed up in a robe, pajamas, and hospital slippers, and she would not make eye contact. In December, Wellington reported that “everything got worse” after her father died. The next month, January 2011, the therapist observed that Wellington’s depression was only getting worse and that her anxiety had reached new heights.

Wellington filed for SSDI and SSI benefits on December 24, 2009, alleging a disability onset date of December 24, 2008. Her date last insured for SSDI was December 31, 20Ó8. Wellington’s claims were initially denied, but after an appeal and voluntary remand, an ALJ issued a partially favorable decision. The ALJ found that Wellington’s disability onset date was May 26, 2010, making her ineligible for SSDI but eligible for SSI from that daté forward. The ALJ determined Wellington’s disability onset date without calling a medical expert at the hearing. He reasoned that medical records beginning on this date—with Dr. Cushman’s psychological examination—showed that Wellington became unable to complete a normal workday up to seven days a quarter due to pain and anxiety. The district court affirmed the ALJ’s decision, and Wellington appeals.

II

We review de novo the district court’s order affirming the Commissioner’s denial of benefits. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). We will affirm the Commissioner’s decision unless it is not supported by substantial evidence or is based on a legal error. Id..

III

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Laurie Wellington v. Nancy Berryhill, 878 F.3d 867 (9th Cir. 2017).

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