Magnusson v. SSA CV-08-276-PB 04/13/09 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Laura Magnusson
Case N o . 08-cv-276-PB Opinion N o . 2009 DNH 054 Michael J. Astrue, Commissioner, US Social Security Administration
MEMORANDUM AND ORDER
Pursuant to 42 U.S.C. § 405(g), Laura Magnusson seeks review
of the Commissioner’s decision finding her disabled as of January
9, 2007. Magnusson argues that the finding of her disability
onset date is not supported by substantial evidence and faults
the Administrative Law Judge (“ALJ”) for failing to comply with
the requirements of Social Security Ruling 83-20. The
Commissioner objects and moves for an order affirming his
decision.
I . BACKGROUND1
A. Administrative Proceedings
Magnusson filed an application for a period of disability
and Disability Insurance Benefits (“DIB”) on February 1 3 , 2006,
1 Citations to the Administrative Transcript are indicated as “Tr.”. The parties have submitted a Joint Statement of Material Facts which, because it is part of the court’s record (Doc. N o . 1 1 ) , need not be recounted in full in this Order. Those facts most relevant to the disposition of this matter are summarized as appropriate. claiming that she became disabled on May 2 0 , 2005 due to breast
cancer and arthralgia (joint pain). T r . at 89-94, 9 8 . Her
application was denied, and Magnusson requested an administrative
hearing. Id. at 46-48, 5 2 . ALJ James J. D’Alessandro held the
hearing on April 2 9 , 2007, at which Magnusson, who was
represented by counsel, and a vocational expert appeared and
testified. Id. at 6-30, 4 1 . By the time of the hearing,
Magnusson also claimed that she suffered from depression and Post
Traumatic Stress Disorder (“PTSD”). Id. at 9-10. On May 2 5 ,
2007, the ALJ issued his decision, finding that Magnusson became
disabled due to her impairments on January 9, 2007, and thus she
was entitled to a period of disability beginning on that date and
to DIB. Id. at 38-45. The ALJ’s decision became ripe for review
as the final decision of the Commissioner when the Appeals
Council denied Magnusson’s request for review on June 2 , 2008.
Id. at 2-4.
B. Factual Background
Magnusson was forty-five years old at the time of the ALJ’s
decision. T r . at 3 8 . In her application, she alleged that she
had been disabled due to breast cancer and arthralgia since May
2 0 , 2005, when she stopped engaging in substantial gainful
activity. Id. Magnusson has a high school education, and past
-2- relevant work experience as a salon owner and operator, a child
care worker, a public school paraprofessional, a permanent
substitute teacher, a court monitor, a telephone company customer
service representative, and a retail salesclerk. Id. Most
recently, Magnusson worked four hours a day, five days per week
earning $9.00 an hour at a child-care center from November 2005,
through February 2006, and part time as a receptionist from March
2006, until shortly before the ALJ administrative hearing. Id.
at 1 5 , 1 1 0 , 113-14, 157. At the time of the hearing, Magnusson
was taking courses online towards a master’s degree in education.
Id. at 15-16.
C. Medical Evidence
a. Physical Impairments
In early May 2005, Magnusson found a lump in her right
breast, which was diagnosed as small, invasive grade III ductal
carcinoma. T r . at 1 6 7 , 226. On June 9, 2005, Magnusson
underwent a lumpectomy and complete right anxillary dissection,
which revealed one lymph node positive for metastatic disease,
requiring further treatment. Id. at 227. She was treated with
chemotherapy by D r . Denis Hammond, and thereafter received
radiation therapy from D r . Asa Nixon. Id. at 272-76, 263. Near
the end of Magnusson’s treatments in late October 2005, she began
-3- to experience hot flashes, for which D r . Nixon prescribed Paxil.
Id. at 265.
In November 2005, after the completion of her cancer
treatment, Magnusson began to complain of significant joint pain
in her shoulders, hips, elbows, and knees. Id. at 263, 329. D r .
Hammond referred Magnusson to D r . John Yost, who examined
Magnusson on January 1 6 , 2006 and assessed an atypical diffuse
pain syndrome. Id. at 313-14. Magnusson’s complaints to D r .
Hammond and D r . Nixon of joint paint and pain in her right breast
persisted throughout 2006 and early 2007. Id. at 3 3 1 , 349, 351.
b. Mental Impairments
Magnusson first reported anxiety and fatigue to her primary
care physician, D r . Kristin Vaughan, on June 2 9 , 2006. T r . at
308. She reported that she was not depressed, but that she was
experiencing stress. Id.
On October 1 8 , 2006, Magnusson saw psychiatrist D r . Amy
Feitelson at Seacoast Mental Health Center, seeking an evaluation
for medication. Id. at 341. Magnusson reported that she had
been in good health until May 2005 when a breast lump was found.
Id. She stated that she had been suffering from depression and
frequent crying spells since August 2006, making it difficult to
work. Id. Magnusson further reported that she had trouble
sleeping due to nightmares and racing thoughts, that she felt
-4- overwhelmed, and that her concentration was poor. Id. at 341-42.
She stated that her energy was low and she had anhedonia. Id. at
341. Magnusson cried throughout the interview with D r .
Feitelson. Id. at 342. D r . Feitleson noted that D r . Yost and
Dr. Vaughan had given Magnusson antidepressants, but Magnusson
reported that she had not taken the medication. Id. at 341.
Upon exam, D r . Feitelson noted that Magnusson’s mood was
depressed; her affect was constricted; her speech rate and rhythm
were regular; her thought content was positive for anxious
ruminations; her judgment and insight were good, and her
vegetative symptoms were positive for initial insomnia with
nightmare, increased startle reflex, low energy, anhedonia,
increased nighttime eating, anxious ruminations, and subjectively
poor concentration. Id. at 342. D r . Feitelson diagnosed
Magnusson with major depressive episode and assessed a Global
Assessment of Functioning (“GAF”) score of 6 5 . Id. Dr.
Feitelson prescribed Prozac and noted that psychotherapy would be
helpful. Id. at 343.
On October 3 1 , 2006, during a visit at D r . Hammond’s office,
a physician’s assistant noted that Magnusson was very teary-eyed
during the visit and very unhappy with her body image. Id. at
347. Magnusson reported crying many times throughout the day,
and that she was currently taking Prozac at the direction of D r .
-5- Feitelson. Id. The physician’s assistant further noted that a
bout with viral meningitis in August 2006, and a scare involving
a new breast cyst (which turned out to be benign) several months
earlier had caused Magnusson much anxiety. Id.
On November 2 , 2006, Magnusson saw D r . Molly Hendrick at
Seacoast Mental Health Center and reported symptoms of
hopelessness; irritability; mood changes; sadness; anger and
rage; feelings of guilt and shame; difficulty enjoying life;
problems sleeping; anxiety attacks; agitations; somatic
complaints; difficulty concentrating; ruminative worry;
distractability; low self-esteem; and social isolation. Id. at
345. D r . Hendrick noted that Magnusson’s status was unchanged
from her evaluation by D r . Feitelson and that her symptoms
appeared to be related to her breast cancer diagnosis and
chemotherapy. Id. D r . Hendrick assessed that Magnusson would
benefit from ongoing therapy, but Magnusson did not return to
Seacoast Mental Health Center due to financial issues. Id. at
2 0 , 345.
At the suggestion of her attorney, Magnusson underwent a
psychological evaluation by clinical psychologist D r . Tracey
Alysson on December 8 , 2006, and January 9, 2007. Id. at 353-64.
In a January 1 0 , 2007 report, D r . Alysson noted that, during the
evaluation, Magnusson reported difficulty with short-term memory;
-6- difficulty maintaining concentration; depression; depressed mood;
loss of pleasure in life; severe self-criticism and self-blame;
social isolation; vegetative symptoms of sleep disturbance,
irritability, change in appetite, decreased libido, and decreased
energy; restlessness; agitation; anger; and anxiety. Id. at 356-
58. D r . Alysson noted that Magnusson had reported symptoms that
are classic diagnostic indicators of trauma, including a startle
response and hyper-alertness. Id. Based on Magnusson’s self-
reported difficulties, D r . Alysson administered a series of
tests, the results of which were consistent with short-term
memory impairment; difficulty maintaining concentration; a
chronic, very high level of anxiety; a high level of felt anger
and, at times, expressed anger that was not inappropriate or out
of control; and a history of a significant traumatic experience
in her life. Id.
Dr. Alysson noted that Magnusson’s reported symptoms and
test results suggested that she was suffering from PTSD. Id. at
358. Accordingly, D r . Alysson administered two additional tests
to assess specifically for PTSD. Id. at 359. On both tests,
Magnusson scored positive for PTSD, with accompanying high levels
of irritability, anxiety, and significant depression. Id. at
359, 363-64. Magnusson’s results further indicated that her
coping level was impaired, that i s , she was unable to fully face
-7- and resolve her traumatic issues, and that she was struggling
with her sense of identity. Id. at 359. In addition, D r .
Alysson noted that all of Magnusson’s PTSD symptoms were related
to her cancer history and experiences. Id.
Dr. Alysson diagnosed Magnusson with PTSD, subsequent to
cancer diagnosis and treatment, chronic major depression, and
severe social phobia. Id. at 360. In addition, D r . Alysson
noted that the onset and focus of the trauma originated around
May 2005, the time of Magnusson’s breast cancer diagnosis. Id.
at 361. D r . Alysson opined that although Magnusson’s symptoms
fit the definition of chronic PTSD (a duration of six months or
more), her disorder was not yet truly chronic, because she had
not stabilized herself nor reformed her identity and functioning
around a traumatic adjustment. Id. D r . Alysson assessed a GAF
score of 35 to 4 0 , which represents major impairment in several
areas, such as work, thinking, or mood. Id. at 360. She opined
that Magnusson was unable to work and unable to maintain
consistent standards of behavior and functioning at work or at
home; that she was severely depressed; and that she needed to
resolve significant changes in body image and sense of self. Id.
Dr. Alysson also noted a massive impact in Magnusson’s ability to
function socially. Id. at 361. Magnusson was fighting the
disorder, which boded well for her prognosis, but D r . Alysson
-8- urged that Magnusson find financial support to get appropriate
psychotherapy. Id. at 361-62.
On January 1 0 , 2007, D r . Alysson drafted a mental residual
functional capacity assessment (“MRFCA”) for Magnusson. Id. at
365-67. D r . Alysson opined that Magnusson was not able to
maintain memory for information shared, whether in verbal or
written form; she was not able to sustain concentration; she
suffered from significant intrusive thoughts and memories, which
generally impaired her ability to concentrate on the present; her
energy level was low; her persistence was brittle and erratic;
her moderate social phobia impaired her ability to go out into
the world and engage in work or other daily tasks; her high level
of irritability made social engagement difficulty; she easily
became reactive when frustrated; she could not be interrupted in
a task; she could not interface with people at work and maintain
a level of functioning; and, she did not have the flexibility to
cope with stress or change. Id. at 366-67.
On January 8 , 2007, Magnusson met with D r . Hammond and
reported increasing depression and frequent crying. Id. at 351.
Dr. Hammond noted that Magnusson was tearful during the interview
and obviously depressed, sitting slumped over. Id. D r . Hammond
urged Magnusson to fill a sleeping pill prescription ordered by
Dr. Vaughan and increased her Prozac to 40 milligrams per day.
-9- Id. During a subsequent visit on February 5 , 2007, D r . Hammond
noted that Magnusson continued to suffer from a profound degree
of anxiety and depression and that she cried throughout the
examination. Id. at 370.
On January 1 9 , 2007, Magnusson saw D r . Vaughan, who noted
that Magnusson complained that she could not stop crying. Id. at
369. Magnusson discussed D r . Alysson’s report with D r . Vaughan.
Id. After the visit, D r . Vaughan wrote a letter, ostensibly to
Magnusson’s professors, stating that she had significant anxiety
and other health issues, and thus could not be in class for more
than two hours. Id. at 368. On February 6, 2007, D r . Alysson
wrote a similar letter noting that it was difficult for Magnusson
to leave home and be around the normal flow of social
interaction. D r . Alysson wrote that Magnusson’s difficulties
were symptoms of PTSD, which is a result of a her battle with
cancer. Id. at 371.
On June 2 0 , 2007, D r . Alysson wrote another letter, “To Whom
It May Concern,” clarifying her opinion expressed in her January
1 0 , 2007, report.2 Id. at 87-88. D r . Alysson noted that she did
not interview Magnusson with an intention to pinpoint the onset
2 This letter post-dates the ALJ’s decision and thus, was not part of the record before the ALJ. The letter was submitted as additional evidence with Magnusson’s request for review of the ALJ’s decision by the Appeals Council. T r . at 8 3 .
-10- of PTSD, but that comments made by Magnusson throughout out the
evaluation and the results of her psychological tests suggested
that the onset of Magnusson’s PTSD likely was close to the date
of her cancer diagnosis. Id. at 8 7 . D r . Alysson concluded that
her opinion had not been that Magnusson’s PTSD had onset or
worsened around January 1 0 , 2007. Id. Rather, Magnusson’s
symptoms and functional limitations, including those limitations
identified in the MRFCA completed by D r . Alysson, arose at the
time of her cancer diagnosis and treatment. Id.
D. Hearing Testimony
On April 1 9 , 2007, Magnusson testified that she was
diagnosed with breast cancer in 2005, felt very sick during her
cancer treatment, and did not have the energy to go back to work
in the fall of 2005. T r . at 11-12. Magnusson testified that she
first became depressed during the summer of 2005 when she was
receiving cancer treatment. Id. at 1 3 . She stated that she
wanted to go back to work after treatment, but that she had
trouble with job interviews. Id. at 1 4 . Magnusson testified
that she began to stay in bed, take lots of naps, and stay in the
house; she did not want people to see her because she felt ugly.
Id. Magnusson further testified that she believed that her
depression worsened over time. Id. She stated that originally
she tried to fight the depression. Id. She was taking Prozac,
but did not believe that it had helped. Id. at 1 9 . She stated
-11- that she was not seeing a therapist or psychiatrist because she
did not have insurance and could not afford the appointments.
Id. at 2 0 .
In addition, Magnusson testified that in the spring of 2006,
she began a receptionist job at a gym. Id. at 1 4 . In the
beginning, she worked about ten hours per week, but ten hours per
week proved to be too much, as often she was sent home because
she cried frequently and did not deal well with customers. Id.
at 1 5 . More recently, she had reduced her schedule to three
hours per week, and, just prior to the hearing date, had stopped
working altogether. Id. She stated that she was really stressed
out by having to go in for three hours, she did not want to get
out of bed, and she always clocked in twenty minutes late. Id.
Magnusson further testified that she would not return to her past
work as a licensed cosmetologist because of her inability to
stand all day due to her physical pain and her inability to deal
with customers. Id. at 20-21. Magnusson also testified that
most of her course work toward her master’s degree was completed
online and described how she had difficulty when she was required
to attend class. Id. at 15-17.
A vocational expert described Magnusson’s past relevant work
and testified that a hypothetical individual with the same
vocational background, limited to light work that is not high
stress and not high contact with other people, could not perform
-12- any of Magnusson’s past relevant work, but could perform the
light, unskilled positions of cleaner and stuffer. Id. at 26-28.
He further testified that, assuming the limitations identified by
Dr. Alysson in her MRFCA, the individual could not perform either
the cleaner or the stuffer job. Id. at 2 9 .
E. ALJ Decision
In his May 2 5 , 2007 decision, the ALJ followed the
sequential evaluation process for determining whether a claimant
is disabled. T r . at 43-44. First, the ALJ found that Magnusson
had not engaged in substantial gainful activity since May 2 0 ,
2005. Id. at 4 3 . Next, the ALJ found that Magnusson suffered
from the severe impairments of PTSD, breast cancer, and
arthralgia. Id. The ALJ then found that none of Magnusson’s
impairments, either alone or in combination, met or equaled an
impairment listed in Appendix 1 , Part 4 0 4 , Subpart P of the
Commissioner’s regulations. Id. Accordingly, the ALJ went on to
determine Magnusson’s residual functional capacity (RFC). Id. at
43-44.
The ALJ determined that before January 9, 2007, Magnusson
retained the functional capacity to perform light work that does
not require toleration of high levels of stress or a high level
of contact with people. Id. at 4 3 . However, he ALJ found that
on after January 9, 2007, Magnusson’s RFC was further restricted
-13- by mental nonexertional limitations that prevented her from
performing her past relevant work or adjusting to work
that exists in significant numbers in the national economy. Id.
at 4 4 . Accordingly, the ALJ found that Magnusson was under a
disability as of January 9, 2007. Id.
Although D r . Alysson opined that Magnusson’s PTSD symptoms
had persisted for six months or more, the ALJ concluded that the
limitations found by D r . Alysson in Magnusson’s MRFCA could not
be applied retroactively prior to the date of her report because
these “work-related limitations must be based on objective
medical findings and there were not [sic] until the date of her
report.” Tr. 4 2 .
I I . STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), the court is empowered “to
enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.” My review is limited to whether the
Commissioner (through the ALJ and the Appeals Council) applied
the proper legal standards and found facts based upon the proper
quantum of evidence. Ward v . Comm’r of Soc. Sec., 211 F.3d 6 5 2 ,
655 (1st Cir. 2000); Nguyen v . Chater, 172 F.3d 3 1 , 35 (1st Cir.
1999). The Commissioner’s factual findings “shall be conclusive
-14- if supported by ‘substantial evidence.’” Irlanda Ortiz v . Sec’y
of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991)
(quoting 42 U.S.C. § 405(g)). Further, the Commissioner is
responsible for determining issues of credibility, drawing
inferences from the record evidence, and resolving conflicts in
the evidence. Id. The findings are not conclusive, however,
when they are derived by “ignoring evidence, misapplying the law,
or judging matters entrusted to experts.” Nguyen, 172 F.3d at
III. ANALYSIS
The issue presented by this case is whether the ALJ
correctly determined the onset date of Magnusson’s disability.
The onset date is the first day an individual is disabled as
defined by the Act and is critical because it may affect the
period for which a claimant can be paid and may even be
determinative of whether a claimant is entitled or eligible for
benefits. Social Security Ruling 83-20, Program Policy
Statement: Titles II and XVI: Onset of Disability (PPS-100), 1983
WL 31249 (S.S.A. 1983) (“SSR 83-20"). The ALJ found that
Magnusson was disabled as of January 9, 2007. Magnusson,
however, contends that she was disabled as of May 2 0 , 2005.
Magnusson argues that the ALJ violated SSR 83-20 by not treating
her PTSD as a disability of traumatic origin and failing to
-15- consult with a medical advisor before determining the onset date
of Magnusson’s disability. Further, Magnusson asserts that the
ALJ’s finding that her onset date was January 9, 2007 is not
supported by substantial evidence.3
A. The SSR 83-20 Framework
SSR 83-20 sets forth an analytical framework for assessing
the date of onset for a disability. For disabilities of
traumatic origin, the onset date is established by the date of
the injury. SSR 83-20 at * 2 . For disabilities of nontraumatic
origin, determination of the onset date is less precise and
factors to be considered include “the applicant’s allegations,
work history, if any, and the medical and other evidence
concerning impairment severity.” Id. SSR 83-20 notes that with
some slowly progressive impairments, including some mental
3 As a preliminary matter, I note that D r . Alysson’s June 2 0 , 2007 letter clarifying her opinion was submitted only to the Appeals Council and was not seen by the ALJ. In reviewing the Commissioner’s decision, I am limited to the evidence that was submitted to the ALJ. Mills v . Apfel, 244 F.3d 1 , 5 (1st Cir. 2001). When the Appeals Council denies review after new evidence has been presented, the court may review that decision only if the Council gave “an egregiously mistaken ground for this action.” Id. “Alternatively, the court may remand a case for further consideration if material new evidence is submitted and the party introducing the evidence shows good cause for failing to present that evidence to the ALJ.” Larocque v . Barnhart, 468 F. Supp. 2d 283, 287 (D.N.H. 2006) (citing § 405(g); Freeman v . Barnhart, 274 F.3d 606, 609-10 (1st Cir. 2001)). Magnusson has shown neither an egregious mistake by the Appeals Council nor good cause for not presenting the evidence to the ALJ. Thus, I will not review the Appeals Council decision and will not consider D r . Alysson’s June 2 0 , 2007 letter.
-16- impairments, “it is sometimes impossible to obtain medical
evidence establishing the precise date an impairment became
disabling.” Id. “In such cases, it will be necessary to infer
the onset date from the medical and other evidence that describe
the history and symptomatology of the disease process.” Id.
“[T]he date alleged by the individual should be used if it is
consistent with all the evidence available. . . . However, the
established onset date must be fixed based on the facts and can
never be inconsistent with the medical evidence of record.” Id.
at * 3 .
Because the judgment about how long an impairment may have
existed at a disabling level of severity must have a “legitimate
medical basis,” SSR 83-20 provides that an ALJ “should call on
the services of a medical advisor when onset date must be
inferred.” Id. In sum,
[t]he onset dates should be set on the date when it is most reasonable to conclude from the evidence that the impairment was sufficiently severe to prevent the individual from engaging in SGA (or gainful activity) for a continuous period of at least 12 months or result in death. Convincing rationale must be given for the date selected.
Id.
B. Magnusson’s Arguments
1 . Traumatic Origin Provision of SSR 83-20
First, Magnusson argues that her PTSD is a disability of
traumatic origin and, accordingly, that SSR 83-20 mandated the
-17- ALJ to find the onset of Magnusson’s PTSD as the date of her
traumatic injury, i.e., her breast cancer diagnosis.
Whether a disability is of traumatic or nontraumatic origin
under SSR 83-20 is question that an ALJ must resolve. See Blea
v . Barnhart, 466 F.3d 903, 910-11 (10th Cir. 2006). Accordingly,
the ALJ is not required to use the date of Magnusson’s cancer
diagnosis as her onset date. Furthermore, while PTSD is caused
by a traumatic event, it does not necessarily manifest itself
simultaneously with the causal event. See American Psychiatric
Ass’n, Diagnostic & Statistical Manual of Mental Disorders 34
(4th ed. 2000); see also Jones v . Chater, 65 F.3d 1 0 2 , 103 (8th
Cir. 1995)(“Although PTSD may not be degenerative in the same
classic sense as a condition like diabetes, PTSD is an unstable
condition that may not manifest itself until well after the
stressful event which caused i t , and may wax and wane after
manifestation.”); Morgan v . Sullivan, 945 F.2d 1079, 1081 (9th
Cir. 1991) (“Mental disorders may manifest themselves over a
period of time.”).
In this case, the ALJ’s implicit decision to treat PTSD as a
nontraumatic injury for purposes of establishing its onset date
is supported by substantial evidence because, while the genesis
of Magnusson’s PTSD may have been her breast cancer diagnosis, it
is not readily apparent that her PTSD was disabling at the time
of her cancer diagnosis. Although D r . Alysson opined in a
-18- retrospective diagnosis that Magnusson’s PTSD arose from her May
2 0 , 2005 cancer diagnosis, no other evidence in the record
indicates that at the time of her cancer diagnosis Magnusson was
expected to be unable to engage in substantial gainful activity
due to PTSD. See Jones, 65 F.3d at 103 (holding that
retrospective medical diagnoses constitute relevant evidence to
establish onset dates, but alone will usually not suffice unless
the claimed disability date is corroborated by other evidence.)
For example, while Magnusson testified that she first became
depressed during the summer of 2005, she also testified that she
believed her depression had worsened over time. T r . at 1 3 , 1 7 .
In August 2005, Magnusson reported to a physician’s assistant
that she was in “good spirits,” and did not report her first
symptoms of mental impairments until June 2 9 , 2006. Id. at 2 7 4 ,
308. Further, D r . Feitelson’s assessment of Magnusson in October
2006 indicated that she had some difficulty in social or
occupational functioning, but was not disabled. Therefore, I
conclude that the ALJ’s implicit decision to treat Magnusson’s
PTSD as a disability of nontraumatic origin in order to determine
its onset date comports with the substantive requirements of SSR
83-20 and was supported by substantial evidence.
2. Evidence of Onset Date
The issue of whether the ALJ’s finding of a January 9, 2007
onset date comports with the requirements of SSR 83-20 and has a
-19- legitimate basis is a much closer question. SSR 83-20 provides
that “medical evidence serves as the primary element in the onset
determination,” but if medical evidence is not available to
establish the precise date an impairment became disabling “it
will be necessary to infer the onset date.” SSR 83-20 at * 2 . In
addition, SSR 83-20 ordinarily requires an ALJ to consult a
medical advisor when the onset of a disability must be inferred
from ambiguous evidence to insure that the determination is based
upon a ‘legitimate medical basis.’ See, e.g., Blea, 466 F.3d at
911; Walton v . Halter, 243 F.3d 703, 709 (3d Cir. 2001);
Grebenick v . Chater, 121 F.3d 1193, 1201 (8th Cir. 1997); Bailey
v . Chater, 68 F.3d 7 5 , 79 (4th Cir. 1995); Spellman v . Shalala, 1
F.3d 3 5 7 , 362 (5th Cir. 1993); DeLorme v . Sullivan, 924 F.2d 8 4 1 ,
848 (9th Cir. 1991).
Magnusson contends that a medical advisor was necessary
because the medical evidence of the onset date of her disability
is ambiguous. She alleges that ambiguity existed because D r .
Alysson’s PTSD diagnosis and opinion of 2005 onset conflicted
with D r . Feitelson’s treatment notes, which contain no diagnosis
of PTSD and no opinion of onset. Magnusson also points to the
fact that the difference in GAF scores given to her by D r .
Alysson and D r . Feitelson show a significantly different
assessment of Magnusson’s ability to function. D r . Feitelson
diagnosed Magnusson with depression with a GAF of 6 5 , which is
-20- not consistent with disabling mental nonextertional limitations.
Dr. Alysson diagnosed Magnusson with PTSD, social phobia, and
depression with a GAF of 45-40, consistent with very serious
impairment in occupational functioning.
Rather than finding an inconsistency in the medical evidence
that required calling on the services of a medical advisor, the
ALJ attributed the discrepancies between D r . Feitelson’s and D r .
Alysson’s findings to a worsening of Magnusson’s mental
functioning. T r . at 4 0 . Further, the ALJ found that D r .
Alysson’s assessment of Magnusson’s functional capacity could not
be applied retroactively because there was no evidence to
corroborate disability prior to D r . Alysson’s assessment. Id. at
42.
I agree that, although Magnusson’s PTSD may have had roots
at a time well before its documentation by D r . Alysson in 2007,
there is little evidence to corroborate D r . Alysson’s opinion
that Magnusson’s PTSD was disabling beginning on May 2 0 , 2005.
See Deblois v . Sec’y of Health & Human Servs., 686 F.2d 7 6 , 79
(1st Cir. 1982) (holding that it is insufficient to establish
that a mental impairment had its roots during a particular time
period, there must be evidence of when the mental impairment
became disabling); see also Flint v . Sullivan, 951 F.2d 2 6 4 , 267
(10th Cir. 1991) (retrospective diagnosis of PTSD and subjective
testimony without other evidence of actual disability is
-21- insufficient for an award of benefits). Although Magnusson has
not engaged in substantial gainful activity since May 2 0 , 2005,
medical evidence indicates that she was not disabled due to her
mental condition at that time. In August 2005, Magnusson
reported to a physician’s assistant that she was in “good
spirits.” T r . at 274. Her first reports of symptoms of mental
impairments didn’t occur until June 2 9 , 2006 when she complained
to D r . Vaughan of anxiety and fatigue. Id. at 308. The medical
record does not reveal any further such complaints until October
1 8 , 2006 when Magnusson first saw D r . Feitelson, who diagnosed
Magnusson with major depressive episode and assessed a GAF score
of 6 5 , indicating that she had some difficulty in social or
occupational functioning, but generally functioned pretty well
and was not disabled. Furthermore, on November 2 , 2006, D r .
Hendrick noted that Magnusson’s condition was unchanged from her
visit with D r . Feitelson. Finally, although Magnusson originally
filed her disability application in February 2006, she did not
allege any mental impairments until she submitted a medical
update form to the Commissioner in late 2006, alleging
depression. Id. at 159-60.
But despite the lack of evidence corroborating an onset date
of May 2 0 , 2005, there is substantial evidence indicating the
existence of symptoms consistent with PTSD prior to January 9,
2007 and a worsening of Magnusson’s condition over time.
-22- Magnusson’s symptoms began at least in 2006 and her complaints to
doctors increased throughout that year. Then in January and
February 2007, the medical evidence indicates that the severity
of Magnusson’s complaints and symptoms became more pronounced.
In addition, Magnusson’s history of a consistently decreasing
work schedule during the relevant time period corroborates the
worsening of her condition over time. Magnusson herself
testified that she believed her mental impairments “worsened over
time.” T r . at 1 7 .
Given the apparent worsening of Magnusson’s condition, the
evidence concerning onset date of Magnusson’s disability is
ambiguous because it is unclear when Magnusson’s mental
impairment first restricted her functional capacity. Dr.
Alysson’s January 1 0 , 2007 report is the first assessment that
Magnusson’s PTSD and mental impairments were disabling. With a
slowly progressive condition such as Magnusson’s mental
condition, however, the onset date is generally sometime earlier
than the date of diagnosis and the medical evidence must be
studied retrospectively to determine when the condition actually
became disabling.
Although an onset date earlier than November 2 , 2006 may be
inconsistent with the other medical evidence of record, no doctor
asserts that January 9, 2007 was the day that Magnusson’s mental
-23- impairments became disabling. There is no evidence to indicate
why January 9, 2007 is significant to Magnusson’s disability
other than the fact that it was one of two days she was evaluated
by D r . Alysson and the day after she met with D r . Hammond for an
evaluation of her oncology progress. D r . Alysson’s January 1 0 ,
2007 report diagnosing Magnusson’s PTSD was based on extensive
testing conducted on December 8 , 2006 and January 9, 2007, and
Dr. Alysson clearly opined that Magnusson had endured the
symptoms of PTSD for six months or more. Even if it was unclear
that D r . Alysson’s retrospective diagnosis of Magnusson’s
disability extended back to May 2005, at the very least, there is
no doubt that D r . Alysson believed Magnusson to be as limited by
her mental impairments on December 8 , 2006 as she was on January
9, 2007. However, the ALJ offers no convincing rationale for
choosing January 9, 2007 as Magnusson’s onset date rather than
December 8 , 2006 or another date. Although Magnusson’s visit
with D r . Hammond on January 8 , 2007 intervened between her two
meetings with D r . Alysson, D r . Hammond noted that Magnusson
displayed symptoms of mental impairments, did not assess the
limiting effects of these impairments, and did not opine on
Magnusson’s disability status. Thus, D r . Hammond’s report was
not inconsistent with a finding that Magnusson was disabled due
to her mental impairments prior to January 9, 2007. If anything,
-24- the medical evidence created an ambiguity as to the onset date of
Magnusson’s disability.
The ALJ’s fixing of January 9, 2007 as the onset date of
Magnusson’s disability without a legitimate medical basis or the
testimony of a medical advisor was a violation of SSR 83-20.
Under SSR 83-20, if onset date cannot be determined from the
medical evidence, a medical advisor must be called to testify to
onset date. In this case, the onset date of Magnusson’s mental
disability was, at best, ambiguous. Rather than calling a
medical advisor to testify to onset date, the ALJ fixed January
9, 2007 as the onset date of Magnusson’s disability without any
supporting evidence. Thus, without the testimony of a medical
advisor, there was no legitimate medical basis for the onset date
imposed by the ALJ. A remand is necessary because the ALJ’s
reasoning failed to comport with the substantive requirement of
SSR 83-20 that judgments must have a legitimate medical basis.
IV. CONCLUSION
For the foregoing reasons, I vacate the Commissioner’s
decision and remand this case for further proceedings pursuant to
sentence four of 42 U.S.C. § 405(g). Magnusson’s motion to
remand (Doc. N o . 9 ) is granted. The Commissioner’s motion to
affirm (Doc. N o . 10) is denied. The clerk is directed to enter
judgment accordingly.
-25- SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
April 1 3 , 2009
cc: Jonathan Baird, Esq. Gretchen Leah Witt, AUSA
-26-