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 .

Michael J. Astrue, Commissioner, US Social Security Administration

MEMORANDUM AND ORDER

Pursuant to

(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

(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.,

5 2 ,

655 (1st Cir. 2000); Nguyen v . Chater,

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.,

(1st Cir. 1991)

(quoting

(g)). Further, the Commissioner is

responsible for determining issues of credibility, drawing

inferences from the record evidence, and resolving conflicts in

the evidence.

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),

(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.”

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,

, 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.”

“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,

(D.N.H. 2006) (citing § 405(g); Freeman v . Barnhart,

(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.”

“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.”

“[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.”

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.”

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.

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,

(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,

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,

(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,

(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.

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,

; Walton v . Halter,

(3d Cir. 2001);

Grebenick v . Chater,

(8th Cir. 1997); Bailey

v . Chater,

5 , 79 (4th Cir. 1995); Spellman v . Shalala,

5 7 , 362 (5th Cir. 1993); DeLorme v . Sullivan,

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.

.

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.,

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,

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

(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-