*1 times”). police nine See also Seidel v. Mer
kle, 1998) 146 F.3d 756-57 Clr.
(finding prejudice where failed to counsel
investigate his client’s health for a
possible imperfect theory -self-defense petitioner
where had been convicted of
knifing struggle). someone That entirely
context is absent here.
Finally, capacity, while diminished
аvailable, could serve aas defense even to significant premedita-
crimes involved
tion, Daniels, 1207-08, see 428 F.3d at no juror
reasonable would have discounted disturbing plausible
Hernandez’s ex-
planation of of mind raped as he his'state Ryan.
and murdered Bristol and The men-
tal health neurological pre-
sented explain collateral review cannot
away this such awareness rational
juror would Hernandez to have found lack required specific rape intent kill Ryan.
Bristol and
¾* n n
I respectfully from II of dissent Part
majority opinion deny would the habe- petition. WELLINGTON, L.
Laurie
Plaintiff-Appellant,
Nancy BERRYHILL, Acting A. Security,
Commissioner Social
Defendant-Appellee.
No. 16-15188 Appeals, Court of
United States
Ninth Circuit.
Argued September and Submitted Francisco, San California
Filed *3 Rohlfing D. (argued),
Lawrence Santa California, Springs, Fe for Plaintiff-Appel- lant. (argued)
Elizabeth Firer and Marcelo Illarmo, Special Assistant United States Stachel, Attorney; Regional Deborah Lee Counsel, IX; Regiоn Phillip Chief A. Tal- bert, Acting Attorney; United States Social Administration, Francisco, Security San California; for Defendant-Appellee. Before: RONALD M. GOULD and WATFORD, PAUL Judges, J. Circuit and SANDS,* Judge. W. LOUIS District by Judge Dissent Watford OPINION GOULD, Judge: Circuit Wellington appeals from the dis- Laurie affirming trict court’s order the Social Se- curity Administration Commissioner’s de- application Security nial of her for Social Disability partial benefits and Insurance application Supplemental of her for denial Security Income bеnefits. Administra- Judge Wellington tive Law concluded was not until after disabled both period which she was insured SSDI benefits and the date which appeal, On applied she for SSI benefits. * Sands, gia, sitting by designation. The Honorable W. Louis United States Judge District for the Middle District of Geor- 2008, however, Wellington
Wellington contends that ALJ erred and was repeatedly took medical leave by not job when store department fired help onset date from hearing to determine In the month did not return work. rеject this conten- she of her disabilities We fired, Wellington went before she was affirm. tion we times, eight emergency room for a three- one occasion admitted herself I appeared anxious day inpatient stay. She experienced psychological anxiety-related symptoms complained child, As a throughout her life. she trauma visits, the other visits in half of these while chronic sexual abuse shielded suffered migraine vertigo, treatment involved vio- siblings from domestic younger headaches, pain. or abdominal *4 adult, regu- she was home. lence at As an job, losing month after Well- In the her ex-boyfriend over larly beaten an emergency room to the ington went back emotionally eight years, of was course times, complaining again exhibiting four during their by her ex-husband abused of anxiety in half visits while these relationship, and was twelve-year stalked vertigo, treatment—for seeking unrelated after their by this divorce. ex-husband ears, and numbness—in ringing her arm in diagnosed post- Wellington with has been emergency gave An Well- the rest. doctor unspeci- disorder and traumatic stress manage for ington prescription Xanax anxiety disorder. fied to the anxiety, her and did not return she physical has several ailments Wellington next month ER for a afterward. from chronic suffers primarily as well. She anxiety now” she was “better visit said'her diagnosed with pain, she was muscle and vomiting. for treated acute and she was has a histo- in 2009. She also fibromyаlgia request- Wellington returned a week later pain, chest and some -pain and back ry appearing anxious. ing more Xanax and conditions. less serious three ran of medication wééks out She emergen- again back later and went physical and Despite psychological her room, prescribed a where was dif- cy she was able lead a impairments, Wellington drug. ferent many years. She life for productive 2009, 16, to a apparently Wellington On March went high sсhool and out dropped for first time on 20s, center in but she obtained health her did not work Klonopin pre- given a two-month completed then and was age at 32. GED She her Subsequent medical scription. in médical as- college program nine-month anxiety of her dis- nursing routine treatment show sisting and worked as certified Wellington a one-month until she hurt her order. received years for three assistant Klonopin May, prescrip- in but the injury is not refill of clear The extent of’this back. rеcord, appointment not at her Wellington stayed out tion was renewed from the but 2005, requested following Wellington month. years. In work force for six one-month refill another as a cashier at a and received she returned to work again Was store, July. prescription' for But the she worked where convenience following Wellington month. Wellington kept this years. half renewed two and a stressors and of increased life complained 50-hour job until she work was so weeks, аnxiety September, she received pain. her back aggravated which was increased stronger prescription that depart- at a part-time then worked She prescription in October. The once more eight ment months. store
.871 Welling- December slippers, was decreased and she eye would not make con- complaints anxiety, December, ton had no it and tact. In Wellington reported 2010, January was renewed the last that “everything got worse” after her fa- record from this office. These treatment ther month, 2011, died. next January Wellington notes indicate that like “doesn’t therapist Wellington’s observed that medication,” taking though recognized she depression was only getting worse prescriptions “help that her did with that anxiety her heights. had reached new pain anxiety.” and the Wellington filed for SSDI and SSI bene-
Wellington specialist first saw her 24, 2009, fits on alleging a dis- 26, mental health May troubles on 2010. onset date of December ability Dr. Cushman Wellington described as Her last date insured for De- SSDI was anxious, moderately but he that she noted cember 20Ó8.Wellington’s were claims last took Klonopin ago a leftover a month denied, initially appeal but after an helpful and that does it in man- “[s]he find remand, voluntary an ALJ issued a partial- aging anxiety.” He concluded ly favorable decision. The found reg- “have will difficulties with Wellington’s disability partic- ular attendance consistent making ineligible for SSDI ipation time, comрlaints of eligible for from that daté SSI for- pain, anxiety Still, Dr. and malaise.” Cush- Wellington’s ward. The ALJ determined *5 assigned Wellington a Assess- Global man disability onset date without a med- (“GAF”) of Functioning ment score expert hearing. ical He reasoned indicating Wellington that he believed had beginning that medical only psychological moderate symptoms.1 Dr. psychological date—with Cushman’s Wellington Dr. Cushman also noted that Wellington examination—showed be- benefit from counseling. would complеte came unable to a normal work- day up quarter to days pain seven due to Wellington took a for the turn worse anxiety. The and district court affirmed over the began next several months. She decision, Wellington ap- the ALJ’s and seeing June, therapist July and she peals. reported having panic that she was more trying attacks because her ex-husband was II
to contact
August,
her. In
Wellington was
de
novo We review
counseling
tearful
most of her
ses-
district
sion,
affirming
ordеr
and she
Commissioner’s
being emotionally
described
court’s
Astrue,
Berry
denial of
benefits.
overwhelmed because her
had
father
de-
cancer, other,
F.3d
We
veloped
family
terminal
will
affirm the
decision
not-getting along,
members were
Commissioner’s
unless
she
and
by
it
recently
supported
is
put
dog
Welling-
had to
evidence
her
down.
substantial
Id..
legal
or is
on a
ton was
to
Klonopin
advised
based
restart
and
error.
given
prescription.
a new
father
Her
III
passed away
following
month. At her
counseling appointment, appeal, Wellington
next
On
that the
contends
robe,
up in
pajamas,
hospital
finding
showed
by
and
erred
that her
Security
1. The
acceptable
Social
has said
come from
medical source.”
Administration
an
GAF
scores
be
"should
considered as
§
Sec.
Soc.
Claims
2:15 n.40
Disab.
Handbook
opinion
medical
evidence
REV),
20 C.F.R.
under
(citing AM-13066
404.1527(a)(2)
416.927(a)(2)
they
§§
if
primary
element
by Dr.
serves as
evidence
day
was examined
began the
she
...
onset
Security
determination.
argues that Social
Cushman. She
to
(“SSR”)
impairments,
the ALJ
slowly progressive
Ruling
82-30
With
hearing to
impossible to obtain
at the
it
is sometimes
call a medical advisor
establishing
pre-
disability onset date.
evidence
her
help determine
impairment
date an
became disabl-
cise
disagree.
We
onset
ing. Determining the
date
proper
difficult, when, for exam-
particularly
is
A
alleged onset and
date last
ple, the
can be
of a
onset date
adequate
past
far in the
are
worked
for
application
to
individual’s
critical
In
records are
available.
qualify
A claimant can
disability benefits.
cases,
necessary to infer
it will
such
be
disability begins
only if her
for SSDI
the medical and
onset date from
insured,
benefits
and these
date last
history
that describe the
other evidence
up
to 12 months before
paid
can be
pro-
of the disease
symptomatology
42 U.S.C.
filed. See
application was
cess.
contrast,
(d)(1)(A).
423(a)(1), (c)(2),
§
be-
once she
eligible
claimant is
SSI
cases, may
possible,
it
be
In some
disabled,
cannot receive
she
comes
reason-
based
the medical
applica-
before her
any period
benefits for
disabling
onset
ably infer that the
1382(c)(2),
§§
tion
See
U.S.C.
date.
prior
some time
impairment(s) occurred
1382c(a)(3)(A).
(c)(7),
programs,
For both
first
recorded
the date
the claim-
is the date when
examination,
the claimant
e.g., the date
any
engage
substаntial
ant
unable
long
working. How
the disease
stopped
or mental
gainful activity
physical
due
to have
at a
may be
existed
determined
last
expected to
impairments that can be
depends on an
disabling
severity
level
*6
42 U.S.C.
for at
12 months.
least
of
in
judgment
the facts
the
informed
1382c(a)(3)(A).
423(d)(1)(A),
§§
however,
judgment,
This
particular case.
basis. At
legitimate
have a
medical
must
in
recently explained Died
As we
law
hearing,
the administrative
the
responsible
isALJ
Berryhill, “[t]he
rich v.
(ALJ)
should call
thе services
judge
resolving any
studying
record and
the
onset must be
a medical
of
advisor
in it.” 874 F.3d
ambiguities
conflicts or
inferred.
(9th
2017)
634,
(citing
v.
Treichler
638
Cir.
31249,
83-20,1983
*2-3.
at
WL
SSR
Admin,
1090,
F.3d
Comm’r
Sec.
775
of Soc.
Rulings
(9th
2014)).
Security
in
Although
“But
circum
Social
1098
Cir.
law,” they
of
are
carry
must
the “force
stances where the ALJ
determine
do
v.
binding
ALJs.
onset and medical nevertheless
Molina
disability
the date of
(9th
1104,
Astrue,
1113 n.5
Cir.
F.3d
period
time
674
evidence from the relevant
“reflect the official
Rulings
Security
These
inadequate,
unavailable or
Social
Sеcurity
of the
Ad
(“SSR”)
interpretation
[Social
Ruling
states that the
83-20
to
entitled
some def
and are
ministration]
Id.
83-
call a
advisor.”
SSR
should
they
long
are consistent with
erence as
provides:
regulations.”
Security Act and
the Social
containing descrip-
reports
Medical
(citation omitted).
Id.
or
tions of examinations
treatment
guidance as
given some
cases have
Our
individual are basic to
determination
requires
83-20
in which SSR
to situations
disability.
of
of
the onset
1998),
to
a
an ALJ
seek
help
medical advisor’s
held that the ALJ
required
we
determining
disability
before
claimant’s
to
call medical advisor to
in
assist
deter-
mining
onset date.
the onset date
“Armstrong’s
where
depression
disabling
could have been
long
Sullivan,
In DeLorme v.
Similarly, Morgan
onset date
Diedrich’s
under
1991),
F.2d 1079
we reversed the
presented.
circumstances
there
determination of
date of
ALJ’s
the onset
at
The majоrity
F.3d
reasoned
the claimant’s mental disorders because
83-20
be-
the ALJ did not consult a medical advisor.
large
there
gaps
cause
were
the medical
Id. at 1082-83. While the claimant’s mental
documenting
ill-
progress
slow
disability may
triggered
have been
ness;
alleged
“the
onset and the
last
operation
hernia
the “first unam-
far in
past”;
are
worked
ALJ’s
biguous
in the
of a
assessment
onset date
only
January
occurred
impairment”
speculation
have been
would
“mere
with-
whеn he was treated at a clinic
expert.”
out
the aid
a medical
Id.
anxiety
and then referred
a counselor.
638-39.
Id. at 1081-82. Then in
1980 a
March
rheumatologist
the claimant
characterized
cases,
Throughout our
have
we
*7
“nearly incapacitated by
depres-
severe
requires
that
only
observed
“SSR 83-20
anxiety.”
sion
chronic
at
Ex-
Id.
1082.
in
that the
assist the claimant
creat
possible
aminations
in 1984 revealed
ing
complete
a
...
a
record
which forms
schizophrenia,
confirmed in
which was
Armstrong,
onset
160
[the]
basis
date.”
panel thought
1985. Id. On this
the
record
590;
DeLorme,
also
924
F.3d at
see
F.2d at
hospital visits in
“perhaps
1979 showed
develop
incomplete
849. The ALJ must
an
early
progressive
evidence of
mental ill-
by calling
record
on a medical advisor
ness,” and that
there were “indications when “medical
from the relevant
Morgan’s
that
mental
disabl-
condition was
is
period
inadequate.”
time
unavailable
31, 1979,”
ing prior to
his
date Diedrich,
require
lаst insured for SSDI. Id. at 1082. readily applies incom ment most when an Next, Armstrong plete clearly support v. Commissioner an record could infer of (9th Security, disability began Social 160 Cir. that a F.3d 587 ence claimant’s
874
ap-
that
Wellington contends
83-20
SSR
contemporaneous
no
were
there
when
her onset
See,
DeLorme,
our
law because
plies
924
case
e.g.,
under
medical records.
retroactively inferred before
could be
“the ALJ
date
that
(holding
F.2d at
examinatiоn.
of Dr. Cushman’s
the
the
develop
when
date
fully
the record”
must
hospital
potential-
that could
The first
visit
docu
by
psychiatrist
a
first examination
disability
of
in time
back
nonpsy-
ly. cast a shadow
term functional
“long
a
mented
by quali-
a
examination
is the first relevant
the claimant
preventing
chotic disorder”
Morgan,
advisor Bailey, 68 be disability must inferred.” B F.3d Athough prior in our cases we apply appoint does that a advisor’s SSR 83-20 concluded meaningful gaps, so has no necessary, we decline when the do ment when, circumstances, A is not ordinary here. Under relatively inadequacies, “a despite claimant’s some equipped ALJ is to determine chronology” of the claim complete disability onset without *8 during time this сondition the conclude ant’s ‘relevant medical that advisor. We Bowen, Pugh circum v. 870 period unusual is available. present case does the 1989). (7th 1271, In 83-20, Cir. and so F.2d & n.9 by stances SSR 1278 envisioned situations, duty'to develop determining the ALJ’s by err these the did not Well discharged. Armstrong, is See a the record ington’s date without onset 590; DeLorme, 924 at 849. 160 F.2d F.3d at advisor. medical
875 Also, Wellington’s application advisor is a medical unneces reflected that her when, sary lifelong anxiety on “the nature оf the chronic based disorder was exac (i.e., medical, impairment presump by responded what erbated and stress well to can be made about reasonably disability tions the finding treatment. Her was condition),” evidence, of an ALJ course the can rea beginning based on record confidently, say. no sonably rea consultative-psychological and Dr. Cushman’s that evaluation, sonable medical advisor infer that examination showing the first .could disability began .рeriod significant the a for during After limits. that exami the docu got.worse which claimant lacked medical nation so her disorder that even 83-20, 31249, treatment, unmitigated 1983 WL at with pain and anxi mentation. *3. ety keep to expected were her from com workday to pleting up days normal seven Both exceptions of from those SSR--83- a quarter. But the evidence be available records, apply available here. The the possibility fore contradicts that then traсking dozen encounters about three Wellington’s anxiety was so severe and give adequate providers, with medical persistent keep to her out of as work Wellington’s chronology of mental health n May'2010. continuously before period be- the seventeen-month alleged onset date first tween her and existing The medical record does not psychological These visits oc- examination. support, medical the.need for a months, every curred at twо least once that SSR 83-20 states when because even for from except gap a three-month Febru- inferred, onset of disability can be that .a ary April 2010 that ended with visits “legitimate judgment requires. a medical Wellington displayed and reported, which 1983, 31249, 83-20, basis.” SSR at *3. WL providers no anxiety. Although her medical recognize experi- had We that professionals, they not mental health were distressing panic enced several attacks recognized De- anxiety. and treated ..her just But a few months . spite Wellington’s alleged lag the between later, Wellington’s that record shows onset date she examined disabling symptoms had- all disap- but. specialist, are not few rele- there so peared, Wellington began In March vant on file medical as records evoke treatment center stopped at health duty develop the ALJ’s un- record going to room. From emergency der SSR 83-20. time until the treatment of her end records
Moreover, Wellington’s January nature of pro- Well anti-anxiety ington’s anxiety vider prescribed disorder such medication reasonably expert infer and commented in their records could not about her good drug. for the The purposes progress provider she disabled became needed, of prescription or 2010. To renewed the SSDI SSI before. be dis- n SSDI, eligible claimant’s three continuing times medication continuously disabling symptoms Wellington’s must faded “be from the anymore. point it during' time of insured stаtus to the that she did ndt need for benefits.” Flaten January Wellington’s pre- application time last after ended, Sec’y Servs., Health & scription she Human complain F.3d did anxiety appear to be at Eligibility anxious regular at appointment or visits to similarly requires SSI continuous two for neck See emergency after room that month pain a claimant’s-onset date. U.S.C. 1382e(a)(3)(A). § The next time bronchitis. *9 advisor at the calling on a medical without pain muscle without 2010 indicate Mаy
in hearing. month, by an followed anxiety early in May on 23 and Dr. Cush-
anxiety attack AFFIRMED. later. days three finding her anxious
man WATFORD, Judge, dissenting: Circuit increasing severity Welling- Given to and their resistance symptoms ton’s I with court’s discussion agree months, subsequent substan- in treatment govern legal that resolution principles finding supports the ALJ’s tial evidence disagree with the ulti- but I appeal, 2010, when Dr.'Cushman exam- May that this case. As the court disposition in mate deter- Wellington and when the ALJ ined III.A, 83-20 re- in section SSR explains onset, impor- disability as an stands mined advisor appoint an ALJ to quires disorder, of her change in the course tant dis- determining in a claimant’s to assist longer she could no attend after which in situa- ability either two onset reliably. work (1) gap meaningful is a tions: when there (2) records; or when the medical during may wax and wane Symptoms complete, are See, of a progression mental disorder. ambigu- nonetheless available Colvin, 995, 759 F.3d e.g., Garrison is no to While there ous as date. hоwever, symptoms, Those gap Nancy Wellington’s med- significant ‘With may also subside treatment. records, my ical view evidence is adequate treatment some individuals anxiety, depres- ambiguous as when have only chronic mental disorders sion, stress disorder post-traumatic ameliorated, but symptoms signs their result, I think the disabling. As became of function close they to a level also return appoint a medical ALJ was they had before to the level of function here. advisor of their they symptoms signs or developed a dis- supports in the record Evidence 404, pt. 20 C.F.R. mental disorders.” 26, May 2010. ability onset date before (2014). P, subpt. app. Such evidence 24, leading up to December the six weeks relieving successfully treatment 2008, she be- contends can a claim of dis- symptoms undermine disabled, emergency she visited the came 404.1520a(c)(l), §§ ability. 20 C.F.R. See visits, In all of those Well- room 11 times. 416.920a(c)(l). happened That here is what of, of, signs ington complained exhibited Mаy until 2009, anxiety. During diagnosed with was adequate even Because emergency room six Wellington visited health Wellington saw a mental before part least in more times due at ex- specialist and no reasonable medical Dur- other disorders. anxiety and that her pert could have inferred medical visits ing eight additional least that May we began before conclude and treated her also noted doctors require the ALJ 83-20 did anxiety anxiety. Her doctors increasеd her before determin- consult medical three times dosage at least medication ing Wellington’s onset date. on year. of that over the course And Wellington was admitted stay related to multi-day inpatient hospital
IV anxiety attack anxiety, followed Dr. examination by May not err Cushman’s the ALJ did We hold demonstrates May 26. This evidence Wellington’s disability onset date finding *10 Wellington continually struggled impairments year for at least half before the date the ALJ determined disability began. ambiguous
Because the evidence Wellington’s impairments became I
disabling, think ALJ erred deter-
mining conclusively sup- the record 26, 2010,
ports Welling- as the date enough
ton’s impairments became severe prevent engaging her from in substan- 83-20, See gainful activity.
tial
WL at *3. I would for the remand to appoint advisor in this
case. America,
UNITED STATES
Plaintiff-Appellee,
v. ALDANA, Defendant-Appellant.
Rafael America,
United States
Plaintiff-Appellee, Suarez,
Julio Cesar Defendant-
Appellant. 16-50372,
No. No. 16-50385 Appeals,
United States Court of
Ninth Circuit.
Argued September and Submitted
1, 2017, Pasadena, California
Filed