Laurie Wellington v. Nancy Berryhill ( 2017 )


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  •                     FOR PUBLICATION
    
       UNITED STATES COURT OF APPEALS
            FOR THE NINTH CIRCUIT
    
    
     LAURIE L. WELLINGTON,                           No. 16-15188
                     Plaintiff-Appellant,
                                                       D.C. No.
                         v.                         1:14-cv-01207-
                                                         SMS
     NANCY A. BERRYHILL, Acting
     Commissioner Social Security,
                   Defendant-Appellee.                 OPINION
    
    
    
            Appeal from the United States District Court
                for the Eastern District of California
           Sandra M. Snyder, Magistrate Judge, Presiding
    
             Argued and Submitted September 14, 2017
                     San Francisco, California
    
                       Filed December 29, 2017
    
      Before: Ronald M. Gould and Paul J. Watford, Circuit
          Judges, and W. Louis Sands, * District Judge.
    
                       Opinion by Judge Gould;
                       Dissent by Judge Watford
    
    
        *
          The Honorable W. Louis Sands, United States District Judge for
    the Middle District of Georgia, sitting by designation.
    2                 WELLINGTON V. BERRYHILL
    
                              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
    
        **
           This summary constitutes no part of the opinion of the court. It
    has been prepared by court staff for the convenience of the reader.
                    WELLINGTON V. BERRYHILL                    3
    
    activity; and he would remand for the ALJ to appoint a
    medical advisor in the case.
    
    
                            COUNSEL
    
    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.
    
    
                            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.
    4               WELLINGTON V. BERRYHILL
    
                                  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
                   WELLINGTON V. BERRYHILL                    5
    
    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
    6                 WELLINGTON V. BERRYHILL
    
    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. Cushman 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
    
        1
          The Social Security Administration has said that GAF scores
    “should be considered as medical opinion evidence under 20 C.F.R.
    §§ 404.1527(a)(2) and 416.927(a)(2) if they come from an acceptable
    medical source.” Soc. Sec. Disab. Claims Handbook § 2:15 n.40 (citing
    AM-13066 REV).
                    WELLINGTON V. BERRYHILL                    7
    
    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,
    2008. 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 date
    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.
    8               WELLINGTON V. BERRYHILL
    
                                 III
    
        On appeal, Wellington contends that the ALJ erred by
    finding that her disability began the day she was examined
    by Dr. Cushman. She argues that Social Security Ruling
    (“SSR”) 82-30 required the ALJ to call a medical advisor at
    the hearing to help determine her disability onset date. We
    disagree.
    
                                  A
    
        The onset date of a disability can be critical to an
    individual’s application for disability benefits. A claimant
    can qualify for SSDI only if her disability begins by her date
    last insured, and these benefits can be paid for up to
    12 months before her application was filed. See 42 U.S.C.
    § 423(a)(1), (c)(2), (d)(1)(A). In contrast, a claimant is
    eligible for SSI once she becomes disabled, but she cannot
    receive benefits for any period before her application date.
    See 42 U.S.C. §§ 1382(c)(2), (c)(7), 1382c(a)(3)(A). For
    both programs, the onset date is the date when the claimant
    is unable to engage in any substantial gainful activity due to
    physical or mental impairments that can be expected to last
    for at least 12 months. 42 U.S.C. §§ 423(d)(1)(A),
    1382c(a)(3)(A).
    
       As we recently explained in Diedrich v. Berryhill, “[t]he
    ALJ is responsible for studying the record and resolving any
    conflicts or ambiguities in it.” 
    874 F.3d 634
    , 638 (9th Cir.
    2017) (citing Treichler v. Comm’r of Soc. Sec. Admin,
    
    775 F.3d 1090
    , 1098 (9th Cir. 2014)). “But in circumstances
    where the ALJ must determine the date of disability onset
    and medical evidence from the relevant time period is
    unavailable or inadequate, Social Security Ruling (“SSR”)
    83-20 states that the ALJ should call a medical advisor.” Id.
    SSR 83-20 provides:
              WELLINGTON V. BERRYHILL                  9
    
        Medical reports containing descriptions
    of examinations or treatment of the
    individual are basic to the determination of
    the onset of disability. The medical evidence
    serves as the primary element in the onset
    determination. . . .
    
        With slowly progressive impairments, it
    is sometimes impossible to obtain medical
    evidence establishing the precise date an
    impairment became disabling. Determining
    the proper onset date is particularly difficult,
    when, for example, the alleged onset and the
    date last worked are far in the past and
    adequate medical records are not available.
    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.
    
       ....
    
         In some cases, it may be possible, based
    on the medical evidence to reasonably infer
    that the onset of a disabling impairment(s)
    occurred some time prior to the date of the
    first recorded medical examination, e.g., the
    date the claimant stopped working. How
    long the disease may be determined to have
    existed at a disabling level of severity
    depends on an informed judgment of the facts
    in the particular case. This judgment,
    however, must have a legitimate medical
    basis. At the hearing, the administrative law
    10              WELLINGTON V. BERRYHILL
    
           judge (ALJ) should call on the services of a
           medical advisor when onset must be inferred.
    
    SSR 83-20, 
    1983 WL 31249
    , at *2–3.
    
        Although Social Security Rulings do not carry the “force
    of law,” they are nevertheless binding on ALJs. Molina v.
    Astrue, 
    674 F.3d 1104
    , 1113 n.5 (9th Cir. 2012). These
    Rulings “reflect the official interpretation of the [Social
    Security Administration] and are entitled to some deference
    as long as they are consistent with the Social Security Act
    and regulations.” Id. (citation omitted).
    
       Our cases have given some guidance as to situations in
    which SSR 83-20 requires an ALJ to seek a medical
    advisor’s help before determining a claimant’s disability
    onset date.
    
        In DeLorme v. Sullivan, 
    924 F.2d 841
     (9th Cir. 1991),
    we considered the case of a man with long-term disabling
    depression. Id. at 844. Although DeLorme’s incapacitating
    depression was not diagnosed until he belatedly saw a
    mental health specialist, it was “possible that the depression
    diagnosed [then] might be found to have an onset date at
    some other time prior to the expiration of insured status” two
    years earlier. Id. at 847–49. We held that on these facts,
    “SSR 83-20 requires the administrative law judge to call
    upon the services of a medical advisor and to obtain all
    evidence which is available to make the determination.” Id.
    at 848.
    
        Similarly, in Morgan v. Sullivan, 
    945 F.2d 1079
     (9th Cir.
    1991), we reversed the ALJ’s determination of the onset date
    of the claimant’s mental disorders because the ALJ did not
    consult a medical advisor. Id. at 1082–83. While the
    claimant’s mental disability may have been triggered by a
                    WELLINGTON V. BERRYHILL                     11
    
    hernia operation in 1977, the “first unambiguous evidence in
    the record of a mental impairment” occurred only in January
    1980, when he was treated at a clinic for anxiety and then
    referred to a counselor. Id. at 1081–82. Then in March 1980
    a rheumatologist characterized the claimant as “nearly
    incapacitated by severe depression and chronic anxiety.” Id.
    at 1082.       Examinations in 1984 revealed possible
    schizophrenia, which was confirmed in 1985. Id. On this
    record the panel thought hospital visits in 1979 showed
    “perhaps early evidence of progressive mental illness,” and
    that there were “indications that Morgan’s mental condition
    was disabling prior to December 31, 1979,” his date last
    insured for SSDI. Id. at 1082.
    
        Next, in Armstrong v. Commissioner of Social Security,
    
    160 F.3d 587
     (9th Cir. 1998), we held that the ALJ was
    required to call a medical advisor to assist in determining the
    onset date where “Armstrong’s depression could have been
    disabling long before” it was diagnosed. Id. at 590. After
    his wife left him in 1986, Armstrong began drinking alcohol
    excessively, living in his truck, and recycling aluminum cans
    to gain income. Id. at 588. In 1991 or 1992, he began
    suffering crying spells. Id. at 590. So even though
    Armstrong was not diagnosed with mental health disorders
    until 1994, a medical expert could have helped the ALJ infer
    a disability onset date before Armstrong’s date last insured
    in 1992. Id. at 588–89.
    
        Finally, in Diedrich v. Berryhill we held that the Social
    Security Commissioner erred by not calling a medical
    advisor at the hearing to help determine the precise onset
    date of Diedrich’s disability under the circumstances there
    presented. 874 F.3d at 639. The majority reasoned that SSR
    83-20 required a medical advisor because there were large
    gaps in the medical records documenting slow progress of
    12              WELLINGTON V. BERRYHILL
    
    illness; “the alleged onset and the date last worked are far in
    the past”; and the ALJ’s assessment of the disability onset
    date would have been “mere speculation without the aid of a
    medical expert.” Id. at 638–39.
    
        Throughout our cases, we have observed that “SSR 83-
    20 only requires that the ALJ assist the claimant in creating
    a complete record . . . which forms a basis for [the] onset
    date.” Armstrong, 160 F.3d at 590; see also DeLorme,
    924 F.2d at 849. The ALJ must develop an incomplete
    record by calling on a medical advisor when “medical
    evidence from the relevant time period is unavailable or
    inadequate.” Diedrich, 874 F.3d at 638. This requirement
    most readily applies when an incomplete record clearly
    could support an inference that a claimant’s disability began
    when there were no contemporaneous medical records. See,
    e.g., DeLorme, 924 F.2d at 847, 851 (holding that “the ALJ
    must fully develop the record” when the first examination by
    a psychiatrist documented a “long term functional
    nonpsychotic disorder” preventing the claimant from
    working). Because SSR 83-20 applies when “it may be
    possible” to infer disability onset during a significant gap in
    the medical records, the ALJ should also enlist a medical
    expert’s help when “the evidence is ambiguous regarding the
    possibility that the onset of her disability occurred” at that
    time. Grebenick v. Chater, 
    121 F.3d 1193
    , 1201 (8th Cir.
    1997).
    
        In those circumstances, “an ALJ’s assessment of the
    disability onset date would be mere speculation without the
    aid of a medical expert.” Diedrich, 874 F.3d at 639. “The
    requirement that, in all but the most plain cases, a medical
    advisor be consulted prior to inferring an onset date is merely
    a variation on the most pervasive theme in administrative
    law—that substantial evidence support an agency’s
                    WELLINGTON V. BERRYHILL                    13
    
    decisions.” Bailey v. Chater, 
    68 F.3d 75
    , 80 (4th Cir. 1995).
    Under SSR 83-20, “medical advisors are the prescribed
    mechanism for reaching the required evidentiary threshold.”
    Id.
    
                                  B
    
        Although in our prior cases we concluded that a medical
    advisor’s appointment was necessary, we decline to do so
    here. Under ordinary circumstances, an ALJ is equipped to
    determine a claimant’s disability onset date without calling
    on a medical advisor. We conclude that this case does not
    present the unusual circumstances envisioned by SSR 83-20,
    and so the ALJ did not err by determining Wellington’s onset
    date without calling on a medical advisor.
    
         Wellington contends that SSR 83-20 applies under our
    case law because her onset date could be retroactively
    inferred before the date of Dr. Cushman’s examination. The
    first hospital visit that could potentially cast a shadow of
    disability back in time is the first relevant examination by a
    qualified examiner. See Morgan, 945 F.2d at 1081–82;
    DeLorme, 924 F.2d at 843–44, 849. Accordingly, the date
    of Dr. Cushman’s psychological examination could trigger
    SSR 83-20’s requirements because this was the first
    examination by a doctor with expertise in mental health
    problems. Although Wellington was previously seen many
    times by emergency room physicians and health center
    medical providers, none of these doctors was specially
    trained to evaluate mental health, nor did any of these
    doctors rigorously evaluate Wellington’s psychological
    impairments.
    
        Here, the ALJ did not violate SSR 83-20 by finding that
    Wellington’s disability onset date coincided with the date of
    Dr. Cushman’s examination. An ALJ need not call on a
    14              WELLINGTON V. BERRYHILL
    
    medical advisor when the available evidence clearly could
    not support an inference of disability onset during a gap in
    the medical records. After all, “[t]he Ruling’s language does
    not expressly mandate that the ALJ consult a medical
    advisor in every case where the onset of disability must be
    inferred.” Bailey, 68 F.3d at 79.
    
       SSR 83-20 does not apply when the record has no
    meaningful gaps. A medical advisor is not required when,
    despite some inadequacies, “a relatively complete medical
    chronology” of the claimant’s condition during the relevant
    time period is available. Pugh v. Bowen, 
    870 F.2d 1271
    ,
    1278 & n.9 (7th Cir. 1989). In these situations, the ALJ’s
    duty to develop the record is discharged. See Armstrong,
    160 F.3d at 590; DeLorme, 924 F.2d at 849.
    
        Also, a medical advisor is unnecessary when, based on
    “the nature of the impairment (i.e., what medical
    presumptions can reasonably be made about the course of
    the condition),” an ALJ can reasonably and confidently say
    that no reasonable medical advisor could infer that the
    disability began during a period for which the claimant
    lacked medical documentation. SSR 83-20, 
    1983 WL 31249
    , at *3.
    
        Both of those exceptions from to SSR 83-20 apply here.
    The available records, tracking about three dozen encounters
    with medical providers, give an adequate chronology of
    Wellington’s mental health during the seventeen-month
    period between her alleged onset date and first psychological
    examination. These visits occurred at least once every two
    months, except for a three-month gap from February to April
    2010 that ended with visits in which Wellington reported and
    displayed no anxiety. Although her medical providers were
    not mental health professionals, they recognized and treated
    her anxiety. Despite the lag between Wellington’s alleged
                    WELLINGTON V. BERRYHILL                     15
    
    onset date and the date she was examined by a specialist,
    there are not so few relevant medical records on file as to
    evoke the ALJ’s duty to develop the record under SSR 83-
    20.
    
        Moreover, the nature of Wellington’s anxiety disorder is
    such that a medical expert could not reasonably infer that she
    became disabled for the purposes of SSDI or SSI before May
    2010. To be eligible for SSDI, a claimant’s disability must
    “be continuously disabling from the time of onset during
    insured status to the time of application for benefits.” Flaten
    v. Sec’y of Health & Human Servs., 
    44 F.3d 1453
    , 1460 (9th
    Cir. 1995). Eligibility for SSI similarly requires continuous
    disability after a claimant’s onset date. See 42 U.S.C.
    § 1382c(a)(3)(A). The record at the time of Wellington’s
    application reflected that her lifelong chronic anxiety
    disorder was exacerbated by stress and responded well to
    treatment. Her disability finding was based on record
    evidence, beginning with Dr. Cushman’s consultative
    psychological evaluation, the first examination showing
    significant mental limits. After that examination her
    disorder got worse so that even with treatment, unmitigated
    pain and anxiety were expected to keep her from completing
    a normal workday up to seven days a quarter. But the
    available evidence before then contradicts the possibility
    that Wellington’s anxiety was so severe and persistent as to
    keep her out of work continuously before May 2010.
    
        The existing medical record does not support the need
    for a medical advisor because SSR 83-20 states that even
    when onset of a disability can be inferred, that judgment
    requires a “legitimate medical basis.” SSR 83-20, 
    1983 WL 31249
    , at *3. We recognize that Wellington had experienced
    several distressing panic attacks in December 2008. But just
    a few months later, the record shows that Wellington’s
    16               WELLINGTON V. BERRYHILL
    
    disabling symptoms had all but disappeared. In March 2009,
    Wellington began treatment at a health center and stopped
    going to the emergency room. From this time until the end
    of her treatment records in January 2010, Wellington’s
    medical provider prescribed anti-anxiety medication and
    commented in their records about her good progress on the
    drug. The provider renewed the prescription as needed,
    discontinuing the medication three times when Wellington’s
    symptoms faded to the point that she did not need it
    anymore.      In January 2010, after Wellington’s last
    prescription ended, she did not complain of anxiety or appear
    to be anxious at her regular appointment or at two visits to
    the emergency room that month for neck pain and bronchitis.
    The next medical records in May 2010 indicate muscle pain
    without anxiety early in the month, followed by an anxiety
    attack on May 23 and Dr. Cushman finding her anxious three
    days later. Given the increasing severity of Wellington’s
    symptoms and their resistance to treatment in subsequent
    months, substantial evidence supports the ALJ’s finding that
    May 2010, when Dr. Cushman examined Wellington and
    when the ALJ determined disability onset, stands as an
    important change in the course of her disorder, after which
    she could no longer attend work reliably.
    
        Symptoms may wax and wane during the progression of
    a mental disorder. See, e.g., Garrison v. Colvin, 
    759 F.3d 995
    , 1017 (9th Cir. 2014). Those symptoms, however, may
    also subside during treatment. “With adequate treatment
    some individuals with chronic mental disorders not only
    have their symptoms and signs ameliorated, but they also
    return to a level of function close to the level of function they
    had before they developed symptoms or signs of their mental
    disorders.” 20 C.F.R. pt. 404, subpt. P, app. 1 (2014). Such
    evidence of medical treatment successfully relieving
    symptoms can undermine a claim of disability. See
                    WELLINGTON V. BERRYHILL                     17
    
    20 C.F.R. §§ 404.1520a(c)(1), 416.920a(c)(1). That is what
    happened here until May 2010.
    
       Because the record was adequate even before Wellington
    saw a mental health specialist and no reasonable medical
    expert could have inferred that her disability began before
    May 2010, we conclude that SSR 83-20 did not require the
    ALJ to consult a medical advisor before determining
    Wellington’s disability onset date.
    
                                  IV
    
        We hold that the ALJ did not err by finding Wellington’s
    disability onset date without calling on a medical advisor at
    the hearing.
    
       AFFIRMED.
    
    
    
    WATFORD, Circuit Judge, dissenting:
    
        I agree with the court’s discussion of the legal principles
    that govern resolution of this appeal, but I disagree with the
    ultimate disposition in this case. As the court explains in
    section III.A, SSR 83-20 requires an ALJ to appoint a
    medical advisor to assist in determining a claimant’s
    disability onset date in either of two situations: (1) when
    there is a meaningful gap in the medical records; or (2) when
    the medical records are complete, but the available evidence
    is nonetheless ambiguous as to the onset date. While there
    is no significant gap in Nancy Wellington’s medical records,
    in my view the evidence is ambiguous as to when her
    anxiety, depression, and post-traumatic stress disorder
    became disabling. As a result, I think the ALJ was required
    to appoint a medical advisor here.
    18             WELLINGTON V. BERRYHILL
    
        Evidence in the record supports a disability onset date
    before May 26, 2010. In the six weeks leading up to
    December 24, 2008, when Wellington contends she became
    disabled, she visited the emergency room 11 times. In all of
    those visits, Wellington complained of, exhibited signs of,
    or was diagnosed with anxiety. During 2009, Wellington
    visited the emergency room six more times due at least in
    part to her anxiety and other mental disorders. During at
    least eight additional medical visits in 2009, doctors also
    noted and treated her anxiety. Her doctors increased her
    anxiety medication dosage at least three times over the
    course of that year. And on May 4, 2010, Wellington was
    admitted for a multi-day inpatient hospital stay related to
    anxiety, followed by an anxiety attack on May 23 and Dr.
    Cushman’s examination on May 26. This evidence
    demonstrates that Wellington continually struggled with her
    mental impairments for at least a year and a half before the
    date the ALJ determined her disability began.
    
        Because the evidence is ambiguous as to when
    Wellington’s impairments became disabling, I think the ALJ
    erred in determining that the record conclusively supports
    May 26, 2010, as the date Wellington’s impairments became
    severe enough to prevent her from engaging in substantial
    gainful activity. See SSR 83-20, 
    1983 WL 31249
    , at *3. I
    would remand for the ALJ to appoint a medical advisor in
    this case.