1 Monica Hoeft

P.O. Box 6946

2 Reno, NV 89513
(775)544-7486
3
4
UNITED STATES COURT OF APPEALS
5 FOR THE NINTH CIRCUIT
*****
6
7
Monica Hoeft
8 Appellate Case No 07-15651
Plaintiff- Appellant
9 D.C. No. CV-N-05-0375-ECR (VPC)
vs
10
Michael J. Astrue1
11 Acting Commissioner of
Social Security Administration,
12 Defendant
Defendant - Appellee.
13 _______________________________/
1.
14
STATEMENT OF FACTS
15
16 Plaintiff - Appellant began showing signs of depression in her early years.
17 When Plaintiff-Appellant began High School it was requested by her teachers that she
18 take counseling to deal with her mood swings as reflected in the erratic quality of her
19 school work. This continued on throughout her college years where she ultimately
20 received an A.S. degree in Electronics. Upon graduation Plaintiff-Appellant worked
21 in the technical fields, traveled abroad, and in general lived comfortably. Plaintiff-
22 Appellant met Hiawatha Hoeft-Ross, an electronics engineer, in 1986, who worked
23 in the Silicon Valley Area as did she. They married in 1993. During the next year,
24 Plaintiff-Appellant did not have major difficulties with depression. On or about
25 November 24th, 1994 Plaintiff-Appellant’s husband was the victim of a major
26
27 1
*Michael J. Astrue is substituted for his predecessor Jo Anne Barnhart as Commissioner of the Social Security
28 Administration. Fed. R. App. P. 43(c)(2).
 1 automobile accident and sustained severe closed brain injuries. These injuries resulted
2 in Plaintiff-Appellant’s husband being declared fully and permanently disabled.
3 Suddenly Plaintiff-Appellant became the primary support and care-giver for two
4 young children and a disabled husband. Additionally the available family income
5 decreased by about 80%. The resulting stress not only added to Plaintiff-Appellant’s
6 existing hidden depression, but magnified it tenfold. Due to Plaintiff-Appellant’s
7 additional burdens, she had to discontinue full-time work in the electronics industry
8 and seek other employment that would fit her needs to care for the family. Plaintiff-
9 Appellant found such work at Hancock Fabrics.
10 It became necessary financially for Plaintiff-Appellant and her family to
11 relocate. Plaintiff-Appellant and her husband decided that Nevada appeared to have
12 a lower cost-of-living and would provide educational opportunities for their children.
13 Therefore, they moved from California to Reno Nevada and Plaintiff-Appellant
14 arranged to transfer her job with Hancock Fabrics from Campbell, CA to Sparks, NV.
15 Obviously these actions taken by Plaintiff-Appellant created a substantial increase in
16 stress and added to her medical problems. Plaintiff-Appellant and her husband
17 decided to use their nest-egg to purchase a home and property in Silver Springs,
18 Nevada. Unfortunately this purchase turned out to be a land fraud and left Plaintiff-
19 Appellant and her family without a home and without any remaining money.
20 Plaintiff-Appellant and her Husband attempted to locate an attorney to represent them
21 in recovery attempts. They were unsuccessful in their quest for legal assistance and
22 decided to represent themselves. Plaintiff-Appellant prepared the necessary
23 documents including all pleadings. This litigation took three years out of their lives
24 and resulted in no recovery or monies. The Honorable Judge Howard D. McKibben
25 suggested to Plaintiff-Appellant that in light of her documentation and presentation
26 she should seriously consider attending law school. Following the results of the
27 litigation, it was necessary for Plaintiff-Appellant and her family to return to the
28 Reno-Sparks area and locate housing where they could live frugally. Several moves
Page 2 of 32
 1 were necessary to avoid rising housing costs until Plaintiff-Appellant settled into a
2 low-income district. The obvious result of the actions occurring during the preceding
3 five years intensified not only the stress level but resulting depression suffered by
4 Plaintiff-Appellant.
5 The negative ambience due to bigotry regarding bi-racial families further
6 stressed Plaintiff-Appellant and affected her day-to-day life in an extremely negative
7 fashion. Plaintiff-Appellant not only lacked friendship from people she lived near or
8 worked with but also had to watch her family be discriminated against. This carried
9 over into her job to such an extent that her husband was not allowed into the Hancock
10 Fabrics store where she worked.
11 Plaintiff-Appellant was emotionally injured when the store she worked in
12 overtly discriminated against her husband, who is black, by not serving him.
13 Plaintiff-Appellant quit that job due to conflicts and received unemployment after six
14 (6) months of hearings. Plaintiff-Appellant tried to find work from October of 2000
15 to February of 2001 due to her agreement for benefits from the unemployment office.
16 Plaintiff-Appellant was turned down by several prospective employers that felt that
17 Plaintiff-Appellant was “too slow.”On November 3rd ,2000 to January 28th ,2002 (TR.
18 at 112 to 119) Plaintiff-Appellant was treated at HAWC Clinic and was diagnosed
19 with depression and given 20 mgs of Prozac to start out and to see if it would work.
20
21 At various times throughout the treatment Plaintiff-Appellant experienced
22 severe level of decompensation. The Prozac was increased to 40 mgs to aid in this.
23 By December 2000 the claimant reported that she was feeling much better with
24 improved appetite more restful sleep and increased energy. By January 2002 the
25 Prozac was decreased at the claimants claimant request due to improvement in
26 symptoms symptom of. anxiety (TR28) the claimant reported in mid-December that
27 she was still experiencing anxiety and depression sometimes the dosage of Prozac
28 was increased. (TR 28). The frequent decompensation of the Plaintiff-Appellant
Page 3 of 32
 1 rendered the HAWC Clinic relatively helpless.
2 Health Access Washoe County was unable to help the Plaintiff-Appellant
3 anymore and referred the Plaintiff-Appellant to Nevada Adult Mental Health.
4 A disability report (Adult) was filed on August 26th ,2002. Plaintiff-Appellant
5 claims severe depression, anxiety, sleep problems, unable to work with enthusiasm,
6 tired, unable to work 8-5 job, unable to stay awake for any extended periods of time
7 due to depression, the ability to not think straight, anxiety and blackout spells. (TR.69
8 – 78). An Application for DIB was filed August 27th, 2002 , citing severe clinical
9 depression as reason for inability to work. (TR. at 56-59). On September 7th 2002.
10 Also on September 22nd , 2002, Plaintiff-Appellant filed a Work Activity Report,
11 stating that Plaintiff-Appellant was fired due to lack of enthusiasm, and that prior to
12 Depression, Plaintiff-Appellant was gainfully employed. (TR.64 and at 79-86). An
13 acquaintance of Plaintiff-Appellant filed a third party Daily Activities Report. This
14 was reported by the ALJ as being a “friend” after Plaintiff-Appellant had stated that
15 she had no friends. This person was a friend of the Plaintiff-Appellant’s husband but
16 not of the Plaintiff-Appellant herself.( TR at26) (TR. at 90-95).
17 On September 25th , 2002 Plaintiff-Appellant was examined by the Social
18 Security Doctor, Dr. Julius Rogina, and was rated at a GAF of 45 which rated the
19 Plaintiff-Appellant’s condition as “guarded.”(TR. at 120-125). On October 3rd , 2002
20 Plaintiff-Appellants condition was evaluated by a Myrna C. Tashner, which Plaintiff-
21 Appellant never interviewed with that did not address all the criteria under Appendix
22 1, subpart P, Part 4 (TR. at 126 – 139). There was an undated Disability Field Report
23 done by a person that had no contact with Plaintiff-Appellant. Plaintiff-Appellant’s
24 initial determination was rejected October 3rd , 2002 (TR. at 40, 41) which was
25 submitted to Dennis Cameron, Plaintiff-Appellants former attorney. It was determined
26 that Plaintiff-Appellant was not restricted to any work based on Medical impairments
27 12.00 et seq. (TR. at 171-184).
28 On October 7th , 2002, a Social Security Notice was sent (TR .at 45-48). A
Page 4 of 32
 1 reconsideration Disability Report was filed on October 17th ,2002. (TR. at 96-101).
2 On October 18th ,2002, a request for reconsideration was filed (TR at 49). On June
3 20th ,2003 a Medical/vocational decision guide was submitted claiming that the
4 Plaintiff-Appellant was not disabled. On July 23rd, 2003 a notice of reconsideration
5 was sent, denying DIB (TR at 50-54). On August 6th, 2003 a request for hearing was
6 filed (TR at 55). An undated Claimants statement was submitted when request for
7 hearing was filed and the issue was disability. (TR. at 106-107).
8 Plaintiff-Appellants list of medications was Queitapine NIPD 400 mg up to 600
9 mg for mood stabilization; Seroquel 40 mg for psychosis; Prozac 60 mg for
10 depression; Trazodone 200-300 mg for sleep; Carbamazepine 400mg for mood
11 disorders; Wellbutrine 300mgs for lessening of sexual side effects. (TR at 111). The
12 final decision was rendered on March 25th, 2003 (TR. at 4). The appeals counsel
13 denied Plaintiff-Appellant’s request for reconsideration on March 25th, 2003 (TR at
14 4) therefore, administrative action is final in this case. Plaintiff-Appellant asked for
15 and received an extension of time on May 9th, 2005 to file with the Federal Court.
16 Plaintiff-Appellant fired her attorney on April 20th, 2005 due to lack of due diligence.
17 Plaintiff-Appellant filed another extension of time up to and including March 10th,
18 2006 due to medical conditions.
Plaintiff-Appellant filed a timely Security Act, 42 U.S.C. SS 401 et seq.,
19
alleging that she had been unable to work since on or about November of 2000 due
20
to Mental Disease to present. Claimant's application was denied initially and upon
21
reconsideration by the ALJ. The ALJ's decision became the final decision of the
22
Commissioner when the Appeals Council declined review. Claimant filed a timely
23
complaint for review by the federal district court. Claimant asked for and received an
24
extension of time up to and including March 10th, 2006. Plaintiff-Appellant Monica
25
Hoeft was under the impression that no reply brief was allowed, but was notified by
26
the court that an extension was granted to her to file an appeal brief until June 28th
27
2006. Plaintiff-Appellant file a timely reply on June 28th, 2006. The District Court
28

Page 5 of 32
 1 Magistrate file a Report and Recommendation of the U.S. Magistrate Judge on
2 February 1, 2007. Plaintiff-Appellant filed another extension of time due to illness
3 on February 28th, 2007 and motion was granted. Plaintiff-Appellant file a timely
4 objection to the Magistrates Report on June 28th, 2007.
5 2.
6 DISTRICT COURT’S DECISION
7 On March 12th, 2007, the District Court adopted the magistrates findings (Doc
8 33) making the decision of the Court final.
9 3.
10 JURISDICTIONAL STATEMENT
11 [F]ederal appellate courts have jurisdiction solely over appeals from "final
12 decisions of the district courts of the United States." 28 U.S.C.1291. A final decision
13 is one that "ends the litigation on the merits and leaves nothing for the court to do but
14 execute the judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945).
15
16 Plaintiff-Appellant’s In Forma Pauperis status was not remitted timely to the
17 High Court, and Plaintiff-Appellant moved for an extension of time pursuant to 9th
18 Cir.R. 31-2.2.(b). Plaintiff-Appellant received the extension of time and the due date
19 of the opening brief was moved from May 28th, 2007 to July 9th, 2007.
20
21 The Ninth Circuit has consistently held that procedural requirements are more
22 liberally construed for pro-se litigants. Abassi v. I.N.S., 305 F.3d 1028, 1032 (9th Cir
23 2002) citing Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir 1984) (“this circuit has
24 long had a rule of liberal construction of pleadings presented by pro-se litigants”).
25 Points and Authorities incorporated herein.
26
27
28

Page 6 of 32
 1
2 4.
3 LEGAL ISSUES PRESENTED UPON APPEAL
4 The ALJ Findings (TR 24-34);
Report and Recommendation of the U.S. Magistrate Judge (Document 28)
5 pages 3 and 4 of 22
6
7 I. (ALJ Finding No. 4) These medically determinable impairments
do not meet or medically equal one of the listed impairments in
8 Appendix 1, Subpart P, Regulation No. 4.
9 II. (ALJ Finding No. 5) The undersigned finds that the claimant’s
allegations regarding her limitations are not totally credible for
10 the reasons set forth in the body of the decision.
11 III (ALJ Finding No. 6) The claimant retains the residual functional
capacity to perform, on a regular basis, work at all levels of
12 physical exertion that does not involve frequent interaction with
the public.
13
IV (ALJ Finding No. 11) Considering the range of work at all
14 physical levels of exertion that the claimant is still functionally
capable of performing, in combination with her vocational factors
15 and using 204.00 of the medical-vocational guidelines as a
framework for decision-making, the claimant is not disabled.
16
V (ALJ Finding No. 12) The claimant was not under a “disability”
17 as defined in the social security Act, at any time through the date
of this decision (20 CFR §§ 404.1520(f))
18
19
20
21
22
23
24
25
26
27
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Page 7 of 32
 1 5.
2 LEGAL ARGUMENT
3 I
These medically determinable impairments do not meet or medically equal
4 one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4.
5
The ALJ did not review the following document ( this numbering system is
6
effective until July 2nd, 2007) as is clearly indicated by a review of the submitted
7
portions of the material.
8
9
Appendix 1 to Subpart P of Part 404—Listing of Impairments
10
12.04 Affective Disorders: Characterized by a disturbance of mood, accompanied
11 by a full or partial manic or depressive syndrome. Mood refers to a prolonged
emotion that colors the whole psychic life; it generally involves either depression or
12 elation.
13 The required level of severity for these disorders is met when the requirements in
both A and B are satisfied, or when the requirements in C are satisfied.
14
A. Medically documented persistence, either continuous or intermittent, of one of the
15 following:
16 1. Depressive syndrome characterized by at least four of the following:
17 a. Anhedonia or pervasive loss of interest in almost all activities; or
18 b. Appetite disturbance with change in weight; or
19 c. Sleep disturbance; or
20 d. Psychomotor agitation or retardation; or
21 e. Decreased energy; or
22 f. Feelings of guilt or worthlessness; or
23 g. Difficulty concentrating or thinking; or
24 h. N/A
25 i. Hallucinations, delusions, or paranoid thinking; or
26 2. Manic syndrome characterized by at least three of the following:
27 a. N/A
28 b. N/A
Page 8 of 32
 1 c. Flight of ideas; or
2 d. Inflated self-esteem; or
3 e. Decreased need for sleep; or
4 f. Easy distractability; or
5 g. Involvement in activities that have a high probability of painful consequences
which are not recognized; or
6
h. Hallucinations, delusions or paranoid thinking;
7
or
8
3. Bipolar syndrome with a history of episodic periods manifested by the full
9 symptomatic picture of both manic and depressive syndromes (and currently
characterized by either or both syndromes);
10
AND
11
B. Resulting in at least two of the following:
12
1. Marked restriction of activities of daily living; or
13
2. Marked difficulties in maintaining social functioning; or
14
3. Marked difficulties in maintaining concentration, persistence, or pace; or
15
4. Repeated episodes of decompensation, each of extended duration;
16
OR
17
C. Medically documented history of a chronic affective disorder of at least 2 years'
18 duration that has caused more than a minimal limitation of ability to do basic work
activities, with symptoms or signs currently attenuated by medication or psychosocial
19 support, and one of the following:
20 1. Repeated episodes of decompensation, each of extended duration; or
21 2. A residual disease process that has resulted in such marginal adjustment that even
a minimal increase in mental demands or change in the environment would be
22 predicted to cause the individual to decompensate; or
23 3. Current history of 1 or more years' inability to function outside a highly supportive
living arrangement, with an indication of continued need for such an arrangement.
24
Plaintiff-Appellant has all of the above indicated disorders as set forth in the
25
Physicians’ medical histories (Dr. Chen, Dr. Rogina and Dr. John Chappel). These
26
cover a period beginning in November of 2000 and continuing to date. The medical
27
histories contained in the record submitted to this court are unanimous in the finding
28

Page 9 of 32
 1 of multiple mental affective disorders. It seems apparent that the ALJ only addressed
2 one disorder and ignored the other medical findings. This is contrary to Sousa v.
3 Callahan, 143 F. 3d 1240, 1243 (9th Cir. 1998) wherein the court held; [b]ut the
4 commissioner’s decision “cannot be affirmed by simply isolating a specific quantum
5 of supporting evidence.” Rather, a court must ‘consider the record as a whole,
6 weighing both evidence that supports and evidence that detracts from the Secretary’s
7 conclusion.” See Penny v. Sullivan, 2 F.3d at 956 (9th Cir. 1993). If a treating
8 physician’s opinion is not given “controlling weight” because it is not
9 “well-supported” or because it is inconsistent with other substantial evidence in the
10 record, the Administration considers specified factors in determining the weight it
11 will be given. Those factors include the “[l]ength of the treatment relationship and the
12 frequency of examination”. In Plaintiff-Appellant’s case, the treating physician; at the
13 time of his report had only twenty(20) minutes with Plaintiff-Appellant and he made
14 a diagnosis. The “nature and extent of the treatment relationship” between the patient
15 and the treating physician was minimal. Id 20 CFR § 404.1527(d)(2)(i)-(ii).
16 “For example, the treating relationship of both physicians provides a “unique
17 perspective” on [Orn’s] condition. See 20 C.F.R. § 404.1527(d)(2). In addition, the
18 nature and extent of the physicians’ relationships with [Orn] adds significant weight
19 to their opinions. Id. 20 CFR § 404.1527(d)(2)(i)-(ii).” As in Orn, Plaintiff-Appellant
20 was seen by the non-treating physician over one hour before diagnosis was made, this
21 was at least three times as long as Plaintiff-Appellant’s “treating physician” had seen
22 her during her assessment.
23 The established criteria to be met requires that the impairment “meet or equal”
24 one of a list of specific impairments described in the regulations. If so, the claimant
25 is “disabled” and therefore is entitled to disability insurance benefits. If a claimant
26 meets or equals a listed impairment he or she will be found to be disabled at this step
27 without further inquiry. See 20 CFR § 404.1520(d); Tackett v. Apfel, 180 F.3d 1094.
28 Claimants are conclusively disabled if their condition either meets or equals a listed
Page 10 of 32
 1 impairment. Lester v. Chater, 81 F.3d 821, 828 (9th Cir 1996). According to the
2 Listing of Impairments, contrary to the ALJ’s findings, Plaintiff-Appellant is
3 disabled.
4
5 II
The undersigned finds that the claimant’s allegations regarding her
6 limitations are not totally credible for the reasons set forth in the body of the
decision.
7
The magistrate found in the ALJ’s report, that the ALJ “largely however relied
8
on the fact that the Plaintiff had enrolled in, attended and nearly completed a law
9
school degree during the time she was allegedly disabled.” It is very clear to
10
Plaintiff-Appellant that the legal community which has dealt with her are totally
11
unfamiliar with the type of law school that she attended. The school was known as
12
Saratoga University School of Law and operated solely on the Internet. It is currently
13
the defendant in a fraud action brought by the California State Bar Association and
14
the Bureau of Private Postsecondary and Vocational Education of California.
15
Students attending this institution were not required to take any examination prior to
16
entry and allowed to complete classes at their own schedule and leisure.
17
Plaintiff-Appellant began law studies for several reasons. Chief among these
18
being the strong suggestion that she do so as soon as possible by Chief Justice
19
Howard D. McKibben of the District Court of Northern Nevada, following a matter
20
she had handled pro se. This suggestion coincided with her own desires, beliefs and
21
delusions that she could become a very successful attorney and thus regain the
22
financial and social status she had enjoyed prior to her husband’s devastating
23
disability. Plaintiff-Appellant’s husband supported her and urged her to go forward
24
with her plans. He enabled her to begin this course prior to her medical diagnoses by
25
supporting her financially, emotionally and by undertaking all the “normal” chores
26
performed by the traditional wife. Plaintiff-Appellant suffered a severe emotional
27
setback when the law school went defunct.
28

Page 11 of 32
 1 Plaintiff-Appellant had and continues to have extreme difficulties in finding
2 a set of medications that will properly stabilize her multiple disorders. The ALJ noted
3 that Plaintiff-Appellant had inconsistent reports on medication side-effects since her
4 disorder varied from one visit to another, being dependent upon her manic-depressive
5 state at the time. Plaintiff-Appellant is dependent upon public facilities and thus has
6 an erratic schedule of reporting medication side-effects since the visits were at
7 varying times of days and monthly intervals. Plaintiff-Appellants’ record is very slim
8 due to the lack of proper care and the large intervals of seeing her medicating
9 physician. An ALJ is not “required to believe every allegation of disabling pain” or
10 other non-exertional impairment. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.
11 1989). However, to discredit a claimant’s testimony when a medical impairment has
12 been established, the ALJ must provide “ ‘specific, cogent reasons for the disbelief.’
13 ” Morgan, 169 F.3d at 599 (quoting Lester, 81 F.3d at 834). The ALJ must “cit[e] the
14 reasons why the [claimant’s] testimony is unpersuasive.” Id. Where, as here, the ALJ
15 did not find “affirmative evidence” that the claimant was a malingerer, those “reasons
16 for rejecting the claimant’s testimony must be clear and convincing.” Id. Factors: that
17 an ALJ may consider in weighing a claimant’s credibility include reputation for
18 truthfulness, inconsistencies in testimony or between testimony and conduct, daily
19 activities, and “unexplained, or inadequately explained, failure to seek treatment or
20 follow a prescribed course of treatment.” Fair, 885 F.2d at 603; see also Thomas, 278
21 F.3d at 958-59 In assessing a claimant's testimony, the ALJ is responsible for
22 determining credibility and resolving conflicts and ambiguities. Meanel v. Apfel, 172
23 F.3d 1111, 1113 (9th Cir. 1999), Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
24 1995). The ALJ is also responsible for resolving conflicts in medical testimony... The
25 ALJ' s findings, however, must be supported by specific, cogent reasons, Rashad v.
26 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Once the claimant produces medical
27 evidence of an underlying impairment, the Commissioner may not discredit the
28 claimant' s testimony as to the severity of symptoms merely because they are
Page 12 of 32
 1 unsupported by objective medical evidence. Bunnell v. Sullivan 947 F.2d 341, 343
2 (9th Cir. 1991) (en banc). Unless there is affirmative evidence showing that the
3 claimant is malingering, the Commissioner' s reasons for rejecting the claimant' s
4 testimony must be "clear and convincing." Lester v. Chater, 81 F.3d 821, 834 (9th
5 Cir. 1996) (internal quotation marks omitted); Swenson, 876 F.2d at 687. "General
6 findings are insufficient; rather, the ALJ must identify what testimony is not credible
7 and what evidence undermines the claimant' s complaints." Lester, 81 F.3d at 834;
8 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). As cited in Reddick v. Chater,
9 157 F.3d 715 (9th Cir. 1998). In Plaintiff’s case the only reason for determining lack
10 of credibility was Plaintiff-Appellants attempt at law school, and not based on the
11 medical evidence before him.
12 Several courts, including this one, have recognized that disability claimants
13 should not be penalized for attempting to lead normal lives in the face of their
14 limitations. See, e.g., Cohen, 964 F.2d at 530-31 (ruling that a claimant should not be
15 penalized for attempting to maintain some sense of normalcy in her life); Cooper v.
16 Bowen, 815 F.2d 557, 561 (9th Cir. 1987)(noting that a disability claimant need not
17 "vegetate in a dark room" in order to be deemed eligible for benefits). See also Fair
18 v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) ("Many home activities are not easily
19 transferable to . . . the more grueling environment of the workplace, where it might
20 be impossible to periodically rest or take medication." ). Only if the level of activity
21 were inconsistent with Claimant' s claimed limitations would these activities have any
22 bearing on Claimant's credibility. See Reddick v. Chater, 157 F.3d 715 (9th Cir.
23 1998).
24 “Because Orn “was able to testify in a responsive manner without any
25 noticeable problems with memory or thought content,” the ALJ’s observations of a
26 claimant’s functioning may not form the sole basis for discrediting a person’s
27 testimony. See SSR. 96-7p at 8 (“[T]he adjudicator is not free to accept or reject the
28 individual’s complaints solely on the basis of . . . personal observations.”), available
Page 13 of 32
 1 at 61 Fed. Reg. at 34,488. Instead, an ALJ’s personal observations may be used only
2 in “the overall evaluation of the credibility of the individual’s statements.” Id.
3 The ALJ’s personal observations regarding Plaintiff-Appellant’s failed attempt
4 at law school and his observation that such an undertaking precludes disability is
5 contrary to Orn. “[T]he ALJ rejected Orn’s testimony because his activities of
6 “read[ing], watch[ing] television and color[ing] in coloring books” “indicate that he
7 is more functional than alleged.” “This court has repeatedly asserted that the mere fact
8 that a plaintiff has carried on certain daily activities . . .does not in any way detract
9 from her credibility as to her overall disability.” Vertigan v. Halter, 260 F.3d 1044,
10 1050 (9th Cir. 2001).” As cited in Orn v. Astrue, 495 F.3d 625 (9th Cir. 2007).
11 Plaintiff’s reading and writing and listening tapes does not detract from her credibility
12 as to her disability.
13 The third party daily activities questionnaire is based upon Plaintiff-
14 Appellant’s husband’s friend who she sees on those occasions when the party is
15 visiting her husband and children. Plaintiff-Appellant is virtually isolated from “face-
16 to-face” visits from any person other than her husband’s family and/or friends,
17 whereas the ALJ found the Plaintiff-Appellant to be incredible because the ALJ stated
18 that the questionnaire was filled out by a “friend” when Plaintiff-Appellant claimed
19 she had no friends.
20 The ALJ found the plaintiff’s subjective complaints and alleged limitations not
21 fully supportive by the evidence.
22 As for the former justification, it is exactly the type we have
previously recognized the regulations prohibit. See SSR 96-7p, 1996
23 WL 374186, at *1; Light, 119 F.3d at 792 “In this case, the ALJ
disbelieved Light because no objective medical evidence supported
24 Light’s testimony regarding the severity of subjective symptoms from
which he suffers, particularly pain. An ALJ may not discredit a
25 claimant’s subjective testimony on that basis. To find the claimant not
credible, the ALJ must rely either on reasons unrelated to the subjective
26 testimony (e.g., reputation for dishonesty), on conflicts between his
testimony and his own conduct, or on internal contradictions in that
27 testimony.”). Robbins v. SSA, 466 F.3d 880 (9th Cir. 2006)
28 “[D]isability benefits may not be denied because of the failure to obtain
Page 14 of 32
 1 treatment because he cannot obtain for lack of funds.” Gamble v. Chater, 68 F.3d 319,
2 321 (9th Cir. 1995). Plaintiff-Appellant is living near poverty level has no insurance
3 nor a means to get proper treatment outside of state facilities. Plaintiff-Appellant has
4 no funds to seek outside evaluation from sources that are able to spend more than
5 twenty minutes per session with her at intervals of three months, and make a thorough
6 evaluation of her mental and emotional condition. See Lester, 81 F.3d at 833 ("The
7 treating physician' s continuing relationship with the claimant makes him especially
8 qualified to evaluate reports from examining doctors, to integrate the medical
9 information they provide, and to form an overall conclusion as to functional
10 capacities and limitations, as well as to prescribe or approve the overall course of
11 treatment." ). Reddick v. Chater, 157 F.3d 715 (9th Cir. 1998). The treating physician
12 at the time of assessment for disability was extremely limited. Dr. Chen had only
13 seen Plaintiff-Appellant for twenty(20) minutes before making an evaluation, and no
14 continuing relationship was present at the time of the report.
15
16 III
The claimant retains the residual functional capacity to perform, on a regular
17 basis, work at all levels of physical exertion that does not involve frequent
interaction with the public.
18
Once a claimant has established that he or she suffers from a severe impairment
19
that prevents the claimant from doing any work he or she has done in the past, the
20
claimant has made a prima facie showing of disability. At this point, step five, the
21
burden shifts to the Commissioner to show that the plaintiff can perform some other
22
work that exists in “significant numbers” in the national economy, taking into
23
consideration the claimants residual functioning capacity, age, education and work
24
experience. 20 CFR § 404.1560(b)(3). There are only two ways for the commissioner
25
to meet this burden of showing that there is work in “significant numbers”n in the
26
national economy that claimant can perform: (a) by the testimony of a vocational
27
expert, or (b) by reference to the Medical-Vocational Guidelines at 20 CFR pt 404
28

Page 15 of 32
 1 subpart P, appendix 2. See Derosiers v. Secretary of Health and Human Services, 846
2 F.2d 573, 577-78 (9th Cir. 1988). Social Security regulations define residual
3 functional capacity as the "maximum degree to which the individual retains the
4 capacity for sustained performance of the physical-mental requirements of jobs." 20
5 CFR 404, Subpt. P, App. 2 § 200.00(c) (emphasis added). In evaluating whether a
6 claimant satisfies the disability criteria, the Commissioner must evaluate the claimant'
7 s "ability to work on a sustained basis." 20 CFR § 404.1512(a); Lester, 81 F.3d at 833
8 (internal quotation marks omitted). The regulations further specify: "When we assess
9 your physical abilities, we first assess the nature and extent of your physical
10 limitations and then determine your residual functional capacity for work activity on
11 a regular and continuing basis." Id. at § 404.1545(b). This court has noted that
12 "[o]ccasional symptom-free periods - and even the sporadic ability to work, are not
13 inconsistent with disability." Lester, 81 F.3d at 833. Reddick supra. Plaintiff
14 testified that she could only study sporadically between her times of her manic states,
15 and that no studying would occur during her depressive stages infra.
16 In general, if a claimant suffers only from exertional limitations, e.g., strength
17 limitations, the ALJ at step five may apply the Commissioner' s Medical-Vocational
18 Guidelines [the "grids" ] to match the claimant with appropriate work. 20 CFR Pt.
19 404, Subpt. P, App. 2, § 200.00(b). The grids are based on strength factors only. Id.
20 The ALJ may apply the grids in lieu of taking testimony of a vocational expert only
21 when the grids accurately and completely describe the claimant' s abilities and
22 limitations. Jones v. Heckler, 760 F.2d 993, 998 (9th Cir. 1985) (citation omitted). If
23 the grids fail accurately to describe a claimant' s limitations, the ALJ may not rely on
24 the grids alone to show the availability of jobs for the claimant. Id. (citations
25 omitted). See also Bapp v. Bowen, 802 F.2d 601, 605-06 (2d Cir. 1986) (stating that
26 application of the grids is inappropriate where a claimant's work capacity is
27 significantly diminished beyond that caused by an exertional impairment). In these
28 cases, the ALJ must also hear the testimony of a vocational expert. Derosiers v.
Page 16 of 32
 1 Secretary of Health & Human Servs. 846 F.2d 573, 578 (9th Cir. 1988 (Pregerson, J.,
2 concurring) (citing Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985)). See
3 Reddick supra. Plaintiff-Appellant testified (infra) that her muscles have atrophied
4 and that she lost a substantial amount of weight. Plaintiff-Appellant also testified that
5 her ability to maintain a sustained work level was severely compromised because she
6 can only work for thirty(30) minutes at a time and then rest for forty-five(45) due to
7 fatigue and Restless Leg Syndrome. Because the ALJ' s evaluation of residual
8 functional capacity failed to address claimant' s ability to undertake sustained work
9 activity, his analysis did not comport with the Social Security Administration' s
10 regulatory requirements. See Cohen, 964 F.2d at 529 ("Although her mental capacity
11 perhaps would have been more than adequate, Cohen simply would have lacked the
12 stamina for such employment." ) [emphasis added]; Rose, 34 F.3d at 19 ("The
13 question here is the extent to which claimant' s fatigue in fact restricts his residual
14 functional capacity." ); Williams v. Shalala, 1995 WL 328487,(holding that, where
15 the ALJ failed to consider claimant's non-exertional limitations, the "ALJ' s decision,
16 on the whole, reflect[ed] an analysis inconsistent with the appropriate framework for
17 assessing disability claims premised on CFS."). The ALJ' s finding on residual
18 functional capacity was not supported by substantial evidence as it failed to account
19 for the effects of fatigue on Claimant' s ability to function in the workplace. See
20 Reddick supra
21 In Plaintiff-Appellant’s claim, the ALJ acknowledged Plaintiff-Appellant’s
22 limited functioning capacity and determined that she was not able to perform her
23 previous employment (which consisted of light to moderate lifting, stooping bending
24 and lifting) but yet in the same breath, assessed the Plaintiff-Appellant able to work
25 at all levels of exertion. The ALJ did not address the sit/stand limitations and the
26 frequent decompensation the plaintiff suffered due to her rapid cycling of her bi-polar
27 disorder that rendered her practically immobile for weeks at a time.
28 At step five, the ALJ can call upon a vocational expert to testify as to: 1) what
Page 17 of 32
 1 jobs the claimant, given his or her residual functioning capacity, would be able to do;
2 and (2) the availability of such jobs in the national economy. At the hearing the ALJ
3 poses the hypothetical questions to the vocational expert that “set out all of the
4 claimant’s impairments” for the vocational expert’s consideration. Gamer v.
5 Secretary of Health and Human Servs., 815 F.2d 1275, 1279 (9th Cir 1987). The
6 ALJ’s depiction of the claimant’s disability must be accurate, detailed and supported
7 by the medical record. The Vocational Expert then “translates these factual scenarios
8 into realistic job market probabilities” by testifying on the record to what kind of
9 jobs the claimant can still perform and whether there is sufficient number of those
10 jobs available in the claimant’s region or in several other regions of the economy to
11 support a finding of not disabled. Derosiers, 846 F.2d at 578.
12 The ALJ in the Plaintiff-Appellant’s case did not rely on a Vocational Expert
13 and did not have one present and relied on the grids. The ALJ asserts that he found
14 only one limitation - plaintiff’s frequent contact with the public. Contrary to his
15 finding earlier on the report that Plaintiff-Appellant suffers “major depressive
16 disorder and bipolar disorder which are considered severe.” (Emphasis added). Nor
17 did he address the Medical-Vocational Guidelines at 20 CFR pt 404 subpart P,
18 appendix 2, and analyze what jobs the Plaintiff-Appellant can do. He merely stated
19 that the Plaintiff-Appellant can work at all levels of exertion.
20 A non-exertional limitation, if sufficiently severe, may limit the functional
21 capacity in ways not contemplated by the guidelines. In such a case, the guidelines
22 would be inapplicable. The court found that the medical-vocational guidelines did not
23 provide the specific evidence that it previously had required. It explained that in the
24 absence of such a showing, "the claimant is deprived of any real chance to present
25 evidence showing that she cannot in fact perform the types of jobs that are
26 administratively noticed by the guidelines." Ibid. The court concluded that because
27 the Secretary had failed to introduce evidence that specific alternative jobs existed,
28 the determination that Campbell was not disabled was not supported by substantial
Page 18 of 32
 1 evidence. The regulations recognize that the rules only describe "major functional and
2 vocational patterns." 20 CFR pt. 404, subpt. P, app, 2 § 200.00(a). If an individual's
3 capabilities are not described accurately by a rule, the regulations make clear that the
4 individual's particular limitations must be considered. See app. 2, §§ 200.00(a), (d).
5 Additionally, the regulations declare that the Administrative Law Judge will not apply
6 the age categories "mechanically in a borderline situation," 20 CFR § 404.1563(a),
7 and recognize that some claimants may possess limitations that are not factored into
8 guidelines, see app. 2, § 200.00(e). Thus, the regulations provide that the rules will
9 be applied only when they describe a claimant's abilities and limitations accurately.
10 SSR 83-46c.
11
12 IV
Considering the range of work at all physical levels of exertion that the
13 claimant is still functionally capable of performing, in combination with her
vocational factors and using 204.00 of the medical-vocational guidelines as a
14 framework for decision-making, the claimant is not disabled.
15 204.00 Maximum sustained work capability limited to heavy work (or very heavy
16 work) as a result of severe medically determinable impairment(s). The residual
17 functional capacity to perform heavy work or very heavy work includes the functional
18 capability for work at the lesser functional levels as well, and represents substantial
19 work capability for jobs in the national economy at all skill and physical demand
20 levels. Individuals who retain the functional capacity to perform heavy work (or very
21 heavy work) ordinarily will not have a severe impairment or will be able to do their
22 past work—either of which would have already provided a basis for a decision of
23 "not disabled". (emphasis added). Environmental restrictions ordinarily would not
24 significantly affect the range of work existing in the national economy for individuals
25 with the physical capability for heavy work (or very heavy work). Thus an
26 impairment which does not preclude heavy work (or very heavy work) would not
27 ordinarily be the primary reason for unemployment, and generally is sufficient for a
28 finding of not disabled, even though age, education, and skill level of prior work
Page 19 of 32
 1 experience may be considered adverse. But the grids, as cited, are inapplicable
2 “[w]hen a claimant’s non-exertional limitations are ‘sufficiently severe’ so as to
3 significantly limit the range of work permitted by the claimant’s exertional
4 limitations.” Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir.1988). Hoopai v.
5 Astrue, -- F.3d --, No. 05-16128 (9th Cir. Aug. 27, 2007). Plaintiff-Appellant was
6 found to have severe impairments and unable to perform any of her past relevant
7 work. A vocational expert is required only when there are significant and
8 “sufficiently severe” non-exertional limitations not accounted for in the grid. Clearly,
9 the severity of the limitations at step five that would require use of a vocational expert
10 must be greater than the severity of impairments determined at step two, otherwise
11 the two steps would collapse and a vocational expert would be required in every case
12 in which a step-two determination of severity is made. “The ALJ acknowledged that
13 because Orn had a severe medically determinable impairment, “all medically
14 determinable impairments must be considered in the remaining steps of the sequential
15 analysis.” 42 USC § 423(d)(2)(B) (“In determining whether an individual’s . .
16 .impairments are of a sufficient medical severity that such . . .impairments could be
17 the basis of eligibility under this section, the Commissioner of Social Security shall
18 consider the combined effect of all of the individual’s impairments without regard to
19 whether any such impairment, if considered separately, would be of such severity.”);
20 Celaya v. Halter, 332 F.3d 1177, 1181-82 (9th Cir. 2003). Orn v. Astrue , supra, No.
21 05-16181 (9th Cir. July 16, 2007).
22 The ALJ, in his assessment, failed to note that Plaintiff-Appellant is of slight build
23 and presently weighs only about a hundred pounds, and is barely able to lift 5 lbs.
24 The ALJ also disregarded the plaintiff-Appellant’s testimony: (TR pp 233-251 on
25 pages TR 237-238)
26 ALJ: Do you play any sports?
27 A: Nothing.
28 ALJ: Bowl? Golf? Tennis?
Page 20 of 32
 1 A: I used to roller skate, but I was in bed for a long time and my muscles just
2 atrophied, and I couldn’t skate after that.
3 (TR pg 242)
4 ALJ: Okay. What are the medical problems that you believe keep you from being able
5 to hold down a job?
6 A: Its mainly my depressive state, my sleeping – well, when I [sic] into depression,
7 I sleep for days and that happens to me about twice a month where I just lay in bed
8 and don’t do anything.
9 ALJ: Have you had any significant weight loss from that?
10 A: Yeah, I’ve lost about 40 pounds.
11 Defendants addressed Singletary v. Bowen 798 F.2d 818 (5th Cir1986) that
12 was codified in SSR 96-9p. But failed to take into account Claimant’s sit/stand issues
13 and once again relied on Claimant’s law schooling to demonstrate the alleged ability
14 to sit and stand in a more customary educational setting. As discussed previously the
15 schooling in question was done in a home setting at the physical and emotional
16 discretion of Claimant.
17 RFC is the individual's maximum remaining ability to
perform sustained work on a regular and continuing basis;
18 i.e., 8 hours a day, for 5 days a week, or an equivalent work
schedule. It is not the least an individual can do, but the
19 most, based on all of the information in the case record.
The RFC assessment considers only those limitations and
20 restrictions that are caused by an individual's physical or
mental impairments. It does not consider limitations or
21 restrictionsduetoageorbodyhabits,sincetheActrequiresthatanindividual'sinabilitytoworkmustresultfromthe
individual's physical or mental impairment(s).
22
23 Plaintiff-Appellant has already testified that she cannot sit or stand at/on or
24 about 30 minutes at one time. Defendants argument that Plaintiff-Appellant can
25 concentrate on her law studies eight hours a day is fallacious. See TR 240-241
26 ALJ: How many hours a day does it take you to do your schoolwork?
27 A: Well. The school says I should be working six hours a day, and I try and maintain
28 a schedule, but its like, I’d work for 20 minutes, and then I’d have to take a break for
Page 21 of 32
 1 45 minutes, and so that goes with me all day when I’m not in my depressive mode
2 where I just sleep.
3 “At Claimant' s hearing before the ALJ, a vocational expert did testify about
4 the nature of Claimant' s limitations. The expert testified that if Claimant' s testimony
5 were credited concerning her fatigue, she would be unable to perform her past work,
6 due to her need to take frequent naps and an inability to carry out repetitive tasks. See
7 Kornock v. Harris, 648 F.2d 525, 527 (9th Cir. 1980) (citations omitted) ("The ability
8 to work only a few hours at day or to work only on an intermittent basis is not the
9 ability to engage in ' substantial gainful activity.' "). The vocational expert also
10 testified that if Claimant were to require just one day per week of rest, she would be
11 unable to perform her past work or any other work.” See Reddick supra. Plaintiff-
12 Appellant had not had the benefit of a Vocational Expert and Plaintiff Appellant did
13 not have the advantage of cross-examining the VE pursuant to Burkhart v. Bowen,
14 856 F.2d 1335 (9th Cir. 1988).
15 Had Plaintiff-Appellant testified further she would have stated for the record
16 that it was customary for her to have manic episodes wherein she would work for
17 periods of up to 48 hours. However even during these periods Plaintiff-Appellant
18 could not physically sit for more than 30 minutes at a time without incurring an
19 episode of Restless Leg Syndrome.
20 “The expert testified that if an employee needed to lie down two or three times
21 a day for up to 45 minutes, as Lingenfelter testified was necessary, that “essentially
22 would eliminate any of the positions described, and in fact any of the positions at the
23 sedentary level. The vocational expert also testified, prior to addressing
24 Lingenfelter’s testimony that he needed to lie down two or three times a day, that the
25 sedentary job base available to a person with the RFC assessed by the ALJ would
26 start to significantly erode if the hypothetical employee needed to stand for one to two
27 minutes every 15-20 minutes, instead of every 30 minutes as the ALJ found. Further,
28 if the employee had to stand four to five minutes every 30 minutes, there would be
Page 22 of 32
 1 a “good 50 percent erosion” of the job base. Finally, if the employee needed to
2 elevate his legs beyond waist level, that “would be rather impractical,” and if the
3 employee had to elevate both legs the “job base could easily be eroded . . up to the
4 80 percent level.” Lingenfelter v. Astrue, -- F.3d --, No. 04-56934 (9th Cir. Oct. 4,
5 2007). Given the ALJ’s finding that the claimant requires a sit/stand option, a
6 limitation which by itself affects the occupational base, vocational expert testimony
7 was required.”
8 Applicable law: A sit/stand limitation affects a claimant’s ability to perform the full
9 range of work and reduces the occupational base of work he can perform. See SSR
10 83-12. Under such circumstances, vocational expert testimony is needed to “clarify
11 the implications for the occupational base.” Similarly, SSR 96-9p specifically
12 provides:
13 An individual may need to alternate the required sitting of sedentary work by
14 standing (and, possibly, walking) periodically. Where this need cannot be
15 accommodated by scheduled breaks and a lunch period, the occupational base for a
16 full range of unskilled sedentary work will be eroded. The extent of the erosion will
17 depend on the facts in the case record, such as the frequency of the need to alternate
18 sitting and standing and the length of time needed to stand. The RFC assessment must
19 be specific as to the frequency of the individual’s need to alternate sitting and
20 standing. It may be especially useful in these situations to consult a vocational
21 resource in order to determine whether the individual is able to make an adjustment
22 to other work.
23 SSR 85-15 specifically provides the following because of the difficulty in
24 adequately addressing the extent of a mental illness and the effects of employment on
25 an individual who suffers from severe mental illness. Plaintiff-Appellant is now on
26 Klonopin because of the stress incurred by her mental illness and the panic disorders
27 that are precipitated by that stress:
28 Stress and Mental Illness — Since mental illness is defined and
Page 23 of 32
 1 characterized by maladaptive behavior, it is not unusual that the
mentally impaired have difficulty accommodating to the demands of
2 work and work-like settings. Determining whether these individuals will
be able to adapt to the demands or "stress" of the workplace is often
3 extremely difficult. This section is not intended to set out any
presumptive limitations for disorders, but to emphasize the importance
4 of thoroughness in evaluation on an individualized basis. Individuals
with mental disorders often adopt a highly restricted and/or inflexible
5 lifestyle within which they appear to function will. Good mental health
services and care may enable chronic patients to function adequately in
6 the community by lowering psychological pressures, by medication, and
by support from services such as outpatient facilities, day care programs,
7 social work programs and similar assistance. The reaction to the
demands of work (stress) is highly individualized, and mental illness is
8 characterized by adverse responses to seemingly trivial circumstances.
The mentally impaired may cease to function effectively when facing
9 such demands as getting to work regularly, having their performance
supervised, and remaining in the workplace for a full day. A person may
10 become panicked and develop palpitations, shortness of breath, or feel
faint while riding in an elevator; another may experience terror and
11 begin to hallucinate when approached by a stranger asking a question.
Thus, the mentally impaired may have difficulty meeting the
12 requirement of even so-called "low stress" jobs. Because response to the
demands of work is highly individualized, the skill level of a position is
13 not necessarily related to the difficulty an individual will have in
meeting the demands of the job. A claimant's condition may make
14 performance of an unskilled job as difficult as an objectively more
demanding job, for example, a busboy need only clear dishes from
15 tables. But an individual with a severe mental disorder may find
unmanageable the demand of making sure that he removes all the dishes,
16 does not drop them, and gets the table cleared promptly for the waiter or
waitress. Similarly, an individual who cannot tolerate being supervised
17 may be not able to work even in the absence of close supervision; the
knowledge that one's work is being judged and evaluated, even when the
18 supervision is remote or indirect, can be intolerated [sic] for some
mentally impaired persons. Any impairment-related limitations
19 created by an individual's response to demands of work, however,
must be reflected in the RFC assessment. (Emphasis added)
20
21 Plaintiff-Appellant is of the informed belief that the ALJ was blinded by the
22 perception that any person competent to attend Law School was competent to work
23 notwithstanding a finding of severe mental impairments. The ALJ apparently did not
24 understand the information Plaintiff-Appellant provided with respect to the “law
25 school” and the methods used by that school to “train attorneys.” Plaintiff-Appellant
26 was never subjected to any structured classroom work, she was required to pay
27 tuition, buy the books, read them and to pass an open-book exam at her leisure. This
28 lack of structure allowed Plaintiff-Appellant’s delusional thinking and mental
Page 24 of 32
 1 disorders to ripen into severe mental impairments requiring continuing medication
2 and treatment. Plaintiff-Appellant’s reading and writing in her “law schooling”
3 helped to alleviate the stress of mentally not being able to cope with the outside world
4 and potential working environments.
5
V
6 The claimant was not under a “disability” as defined in the social security
Act, at any time through the date of this decision (20 CFR §§ 404.1520(f))
7
The ALJ specifically found in this section:
8
20 CFR 404.1520(f) Your impairment(s) must prevent you from doing
9 your past relevant work. If we cannot make a determination or decision
at the first three steps of the sequential evaluation process, we will
10 compare our residual functional capacity assessment, which we made
under paragraph (e) of this section, with the physical and mental
11 demands of your past relevant work. (See §404.1560(b).) If you can still
do this kind of work, we will find that you are not disabled.
12
However, in step 7 of the ALJ’s findings, he specifically holds that “the
13
claimant is unable to perform any of her past relevant work.”
14
Further the ALJ directly contradicts the following:
15
20 CFR 404.1520(e) When your impairment(s) does not meet or equal
16 a listed impairment. If your impairment(s) does not meet or equal a
listed impairment, we will assess and make a finding about your residual
17 functional capacity based on all the relevant medical and other evidence
in your case record, as explained in §404.1545. (See paragraph (g)(2) of
18 this section and §404.1562 for an exception to this rule.) We use our
residual functional capacity assessment at the fourth step of the
19 sequential evaluation process to determine if you can do your past
relevant work (paragraph (f) of this section) and at the fifth step of the
20 sequential evaluation process (if the evaluation proceeds to this step) to
determine if you can adjust to other work (paragraph (g) of this section).
21
This finding of non-listing is fallacious. As previously set forth, the
22
combination of severe depression and bipolar disorder is a combination of affective
23
disorders and constitutes compliance with the listing as a mental impairment pursuant
24
to Appendix 1 to Subpart P of Part 404—Listing of Impairments. Thus Plaintiff-
25
Appellant does in fact meet the requirement of listed impairments.
26
Additionally the ALJ is required a sequential evaluation process which
27
as
28

Page 25 of 32
 1 required in 20 CFR §404.1520 which must certainly include the effect of stress on
2 mental impairments. (See the following):
3
Stress and Mental Illness — Since mental illness is defined and
4 characterized by maladaptive behavior, it is not unusual that the
mentally impaired have difficulty accommodating to the demands of
5 work and work-like settings. Determining whether these individuals will
be able to adapt to the demands or "stress" of the workplace is often
6 extremely difficult. This section is not intended to set out any
presumptive limitations for disorders, but to emphasize the importance
7 of thoroughness in evaluation on an individualized basis. (Emphasis
added) SSR 85-15
8
The importance of stress is well recognized as being a key element in the
9
determination of the ability to function in the workplace. The following indicates the
10
weight that should be allotted to this factor:
11
A person whose vocational factors of age, education, and work
12 experience would ordinarily be considered favorable (i.e., very young
age, university education, and highly skilled work experience) would
13 have severely limited occupational base if he or she has a mental
impairment which causes a substantial loss of ability to respond
14 appropriately to supervision, coworkers, and usual work situations. A
finding of disability would be appropriate. SSR 85-15
15
The failure of the ALJ to look beyond the fact that Plaintiff-Appellant received
16
a “legal” education from a “diploma mill” institution is apparent. The reiteration
17
regarding Plaintiff-Appellant’s attendance at “law school” is rampant throughout not
18
only his findings, but the findings of the Magistrate as well. Both of these parties
19
show no interest in reviewing and assessing the medical records and findings of the
20
several Physicians involved in this matter. Rather they focus their attention on “law
21
school.” The requirement to review the mental impairments that are found in the
22
testimony of Plaintiff-Appellant as well as the medical histories provided is in direct
23
contradiction to the following:
24
(g) Your impairment(s) must prevent you from making an adjustment to
25 any other work. (1) If we find that you cannot do your past relevant
work because you have a severe impairment(s) (or you do not have any
26 past relevant work), we will consider the same residual functional
capacity assessment we made under paragraph (e) of this section,
27 together with your vocational factors (your age, education, and work
experience) to determine if you can make an adjustment to other work.
28 (See §404.1560(c).) If you can make an adjustment to other work, we
Page 26 of 32
 1 will find you not disabled. If you cannot, we will find you disabled.
2
The absence of a Vocational Expert as set forth above, shows the absolute
3
failure of the ALJ to properly evaluate the Plaintiff-Appellant’s impairments and thus
4
failed abysmally to reach a just and legal conclusion.
5
The then counsel of Plaintiff-Appellant refused to let in plaintiff’s husband to
6
provide lay testimony. In determining whether a claimant is disabled, an ALJ must
7
consider lay witness testimony concerning a claimant’s ability to work. See Dodrill
8
v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993); 20 C.F.R. §§ 404.1513(d)(4) & (e),
9
416.913(d)(4) & (e). Indeed, “lay testimony as to a claimant’s symptoms or how an
10
impairment affects ability to work is competent evidence . . . and therefore cannot be
11
disregarded without comment.” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir.
12
1996).
13
6.
14 CONCLUSION
15 The crux of the matter is that the ALJ, the Magistrate and Judge of the District
16 Court of Nevada “rubber stamped” the denial of Plaintiff-Appellant’s fight for her
17 disability. Plaintiff’s former Counsel in Plaintiff-Appellant’s contention did a poor
18 job of representation and wasted judicial resources through this malfeasance.
19 “Appellants have a constitutionally protected property interest in receiving disability
20 benefits. Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir. 1990) (holding that for
21 purposes of procedural due process, an applicant for social security benefits who
22 cannot work because of a disability has a “significant property interest in receiving
23 disability benefits”).” Counsel through his lack of due diligence deprived Plaintiff-
24 Appellant of her due process rights in receiving her benefits in a timely fashion.
25 Secondly the ALJ focused on Plaintiff-Appellant’s failed attempt at law school
26 and surmised that anyone competent enough to handle “law school” was competent
27 enough to work. The ALJ did not take into consideration the lax schedule and the
28 study modes of the Plaintiff-Appellant, which required sit and stand variations within
Page 27 of 32
 1 short periods of time, and the fact that Plaintiff-Appellant was able to work out her
2 studies around her severe mental disabilities.
3 Thirdly the ALJ misstates facts. He concluded that Plaintiff-Appellant would
4 only be able to work in an atmosphere that consisted of minimal contact with other
5 persons, without taking into consideration Plaintiff-Appellants sit/stand issues and
6 her mental and emotional stress brought on by her severe mental disabilities. He
7 concluded that Plaintiff-Appellant was not able to do her previous work which
8 required light to moderate lifting, stooping and lifting, then concluded Plaintiff-
9 Appellant was able to do work at all levels of exertion.
10 Fourth, the ALJ did not have a vocational expert present as required by the
11 Ninth Circuit in Plaintiff-Appellant’s situation, nor did he rely on the Dictionary of
12 Occupational Titles to inform Plaintiff-Appellant and the Court as to what work she
13 would be able to do, given her severe limitations.
14 Fifth, the ALJ stated that Plaintiff-Appellant’s disorders were severe, but were
15 not severe enough to render her disabled, contrary to the listing of impairments in
16 12.04 Affective Disorders.
17 Sixth, the ALJ did not find the Plaintiff-Appellant’s testimony credible based
18 on her schooling and based on the fact that her husband’s friend filled out the daily
19 activities questionnaire and assumed, without basis, that this person was Plaintiff-
20 Appellant’s friend as well, when Plaintiff-Appellant stated that she had no friends.
21 The credibility issue was not in accordance with prevailing case law as cited above.
22 Seventh, the ALJ did not consider or question Plaintiff-Appellant about her
23 decompensation during her depressive stages as evinced by the yo-yo-ing of her
24 medication at the HAWC clinic.
25 The Plaintiff-Appellant’s former counsel did not allow for lay testimony. In
26 determining whether a claimant is disabled, an ALJ must consider lay witness
27 testimony concerning a claimant’s ability to work. See Dodrill v. Shalala, 12 F.3d
28 915, 919 (9th Cir. 1993); 20 C.F.R. §§ 404.1513(d)(4) & (e), 416.913(d)(4) & (e).
Page 28 of 32
 1 Indeed, “lay testimony as to a claimant’s symptoms or how an impairment affects
2 ability to work is competent evidence . . . and therefore cannot be disregarded without
3 comment.” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996).
4
5 7.
6 REQUEST FOR REVERSE AND REMAND WITH INSTRUCTIONS FOR
7 THE PAYMENT OF BENEFITS
8 Plaintiff-Appellant respectfully requests asks this Honorable Court to reverse
9 the District Court with instructions for the payment of benefits.
10 “We may set aside the commissioner’s denial of disability insurance benefits
11 when the ALJ’s findings are based on legal error. Penny v. Sullivan, 2 F.3d 953, 956
12 (9th Cir. 1993).” The ALJ made three significant legal errors resulting in an improper
13 denial of benefits. The Social Security Administration’s disability determination
14 should be upheld unless it contains legal error or is not supported by substantial
15 evidence. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006);
16 42 U.S.C. §§ 405(g), 1383(c)(3). “Substantial evidence is more than a mere scintilla
17 but less than a preponderance.” Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir.
18 2005) (internal quotation marks and citation omitted). It is “such relevant evidence as
19 a reasonable mind might accept as adequate to support a conclusion.” Burch, 400 F.3d
20 at 679 (internal quotation marks and citation omitted). “Where evidence is susceptible
21 to more than one rational interpretation,” the ALJ’s decision should be upheld. Id.
22 “However, a reviewing court must consider the entire record as a whole and may not
23 affirm simply by isolating a ‘specific quantum of supporting evidence.’ ” Robbins v.
24 Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen,
25 879 F.2d 498, 501 (9th Cir. 1989)).
26 The first error was the failure to recognized that severe depression and Bi-Polar
27 Disorder are both affective mental impairments and are two of the medical
28 impairments listed in Appendix 1, Subpart P, Regulation No. 4. The ALJ presented
Page 29 of 32
 1 no evidence to support a finding that these mental impairments were not severe
2 enough to deny Disability Insurance Benefits.
3 The second error was the use of the grids to determine that the Plaintiff-
4 Appellant was not disabled. Although the ALJ was presented with physicians’
5 opinions which stated Plaintiff-Appellant suffered from severe mental impairments,
6 he chose to ignore these medical records and find Plaintiff-Appellant was not disabled
7 due to mental impairment. The ALJ presented no testimony or written documentation
8 to support his position. Counsel for claimant did not call the spouse of claimant
9 (Plaintiff-Appellant) although he was available and willing to testify as to the daily life
10 of Plaintiff-Appellant.
11 The third legal error committed by the ALJ was he failed to establish that there
12 are significant jobs in the national economy that Plaintiff-Appellant can do. There are
13 two ways for the Commissioner to meet the burden of showing that there is other work
14 in “significant numbers” in the national economy that claimant can do: 1) by the
15 testimony of a vocational expert, or 2) by reference to the Medical-Vocational
16 Guidelines at 20 CFR pt. 404, subpt. P. App. 2.. First of all no testimony from a
17 vocational expert was taken, and secondly the grids are predicated on a claimant
18 suffering from an impairment which manifests itself by limitations in meeting the
19 strength requirements of jobs (“exertional limitations”); they may not be fully
20 applicable where the nature of a claimants impairment does not result in such
21 limitations (“non-exertional limitations”). 20 CFR part 404, Subpart P, Appendix 2 §
22 200.00(e); 30 Fed. Proc., L. Ed. § 71:205. The reason for this limitation on the grids’
23 application is that, despite having the residual functioning capacity to perform a full
24 range of unskilled occupations at a given exertional level, a claimant may not be able
25 to adjust to these jobs because of non-exertional impairments. SSR 83-10 (January
26 1983). In particular, non-exertional impairments - including postural and manipulative
27 such as difficulty reaching, handling, stooping, climbing, crawling, or crouching -
28 may, if sufficiently severe, limit a claimant’s functional capacity in ways not
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 1 contemplated by the grids. 20 CFR § 404.1569; Tackett v. Apfel, 180 F.3d at 1101-2
2 (quoting Derosiers v. Sec’y of Health and Human Servs., 846 F.2d 573, 577 (9th Cir
3 1988). Thus the Tackett Court held that “the grids should only be applied where a
4 claimant’s functional limitations fall into a standardized pattern ‘accurately and
5 completely’ described by the grids.” Lounsbury v. JoAnn Barnhart, 464 F.3d 944 (9th
6 Cir 2006).
7 The ALJ, having determined Plaintiff-Appellants non-exertional impairments
8 were severe, then failed to apply “Tackett’s bar on exclusive reliance on the grids is
9 limited by its requirement that the non-exertional impairments invoked must be
10 significant enough to limit further the range of work permitted by exertional
11 limitations before precluding application of the grids.” Tackett v. Apfel, 180 F.3d at
12 1104. Because the grids are not designed to establish automatically the existence of
13 jobs for persons with both severe exertional and non-exertional impairments, they may
14 not be used to direct a conclusion of non-disability. Tackett v. Apfel, 180F.3d 1094,
15 1002 (9th Cir 1999). Where a claimant suffers from only non-exertional limitations,
16 the grids are inappropriate and the ALJ must rely on other evidence. Lounsbury v.
17 JoAnn Barnhart, 464 F.3d 944 (9th Cir 2006). The ALJ took no other testimony
18 regarding the Plaintiff-Appellant’s work impairments.
19 In the alternative, Plaintiff-Appellant requests that the case be remanded for
20 further hearing since the ALJ failed to take testimony regarding the mental disorders
21 suffered by Plaintiff-Appellant and the ALJ failed to bring in a Vocational Expert and
22 did not therefore have sufficient evidence to properly assess the non-exertional
23 impairments of Plaintiff-Appellant and the jobs available in the national economy in
24 light of Plaintiff-Appellants severe mental disorders.
25
26 WHEREFORE Plaintiff-Appellant prays that this Honorable Court grants a
27 remand for calculation of Claimant’s Disability Insurance Benefits or in the
28 alternative that the case be remanded for further hearing to determine if Plaintiff-
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 1 Appellant is entitled to Disability Insurance Benefits under prevailing Statutes and
2 common law.
3
4 DATED:
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7 ______________________
8 Monica Hoeft
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