Federal Disability Appeal

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*Michael J. Astrue is substituted for his predecessor Jo Anne Barnhart as Commissioner of the Social Security1

Administration. Fed. R. App. P. 43(c)(2).

Monica HoeftP.O. Box 6946Reno, NV 89513(775)544-7486

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

*****

Monica HoeftAppellate Case No 07-15651

Plaintiff- AppellantD.C. No. CV-N-05-0375-ECR (VPC)

vs

Michael J. Astrue1

Acting Commissioner of Social Security Administration, Defendant

Defendant - Appellee._______________________________/

1.

STATEMENT OF FACTS

Plaintiff - Appellant began showing signs of depression in her early years.

When Plaintiff-Appellant began High School it was requested by her teachers that she

take counseling to deal with her mood swings as reflected in the erratic quality of her

school work. This continued on throughout her college years where she ultimately

received an A.S. degree in Electronics. Upon graduation Plaintiff-Appellant worked

in the technical fields, traveled abroad, and in general lived comfortably. Plaintiff-

Appellant met Hiawatha Hoeft-Ross, an electronics engineer, in 1986, who worked

in the Silicon Valley Area as did she. They married in 1993. During the next year,

Plaintiff-Appellant did not have major difficulties with depression. On or about

November 24 , 1994 Plaintiff-Appellant’s husband was the victim of a majorth

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automobile accident and sustained severe closed brain injuries. These injuries resulted

in Plaintiff-Appellant’s husband being declared fully and permanently disabled.

Suddenly Plaintiff-Appellant became the primary support and care-giver for two

young children and a disabled husband. Additionally the available family income

decreased by about 80%. The resulting stress not only added to Plaintiff-Appellant’s

existing hidden depression, but magnified it tenfold. Due to Plaintiff-Appellant’s

additional burdens, she had to discontinue full-time work in the electronics industry

and seek other employment that would fit her needs to care for the family. Plaintiff-

Appellant found such work at Hancock Fabrics.

It became necessary financially for Plaintiff-Appellant and her family to

relocate. Plaintiff-Appellant and her husband decided that Nevada appeared to have

a lower cost-of-living and would provide educational opportunities for their children.

Therefore, they moved from California to Reno Nevada and Plaintiff-Appellant

arranged to transfer her job with Hancock Fabrics from Campbell, CA to Sparks, NV.

Obviously these actions taken by Plaintiff-Appellant created a substantial increase in

stress and added to her medical problems. Plaintiff-Appellant and her husband

decided to use their nest-egg to purchase a home and property in Silver Springs,

Nevada. Unfortunately this purchase turned out to be a land fraud and left Plaintiff-

Appellant and her family without a home and without any remaining money.

Plaintiff-Appellant and her Husband attempted to locate an attorney to represent them

in recovery attempts. They were unsuccessful in their quest for legal assistance and

decided to represent themselves. Plaintiff-Appellant prepared the necessary

documents including all pleadings. This litigation took three years out of their lives

and resulted in no recovery or monies. The Honorable Judge Howard D. McKibben

suggested to Plaintiff-Appellant that in light of her documentation and presentation

she should seriously consider attending law school. Following the results of the

litigation, it was necessary for Plaintiff-Appellant and her family to return to the

Reno-Sparks area and locate housing where they could live frugally. Several moves

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were necessary to avoid rising housing costs until Plaintiff-Appellant settled into a

low-income district. The obvious result of the actions occurring during the preceding

five years intensified not only the stress level but resulting depression suffered by

Plaintiff-Appellant.

The negative ambience due to bigotry regarding bi-racial families further

stressed Plaintiff-Appellant and affected her day-to-day life in an extremely negative

fashion. Plaintiff-Appellant not only lacked friendship from people she lived near or

worked with but also had to watch her family be discriminated against. This carried

over into her job to such an extent that her husband was not allowed into the Hancock

Fabrics store where she worked.

Plaintiff-Appellant was emotionally injured when the store she worked in

overtly discriminated against her husband, who is black, by not serving him.

Plaintiff-Appellant quit that job due to conflicts and received unemployment after six

(6) months of hearings. Plaintiff-Appellant tried to find work from October of 2000

to February of 2001 due to her agreement for benefits from the unemployment office.

Plaintiff-Appellant was turned down by several prospective employers that felt that

Plaintiff-Appellant was “too slow.”On November 3 ,2000 to January 28 ,2002 (TR.rd th

at 112 to 119) Plaintiff-Appellant was treated at HAWC Clinic and was diagnosed

with depression and given 20 mgs of Prozac to start out and to see if it would work.

At various times throughout the treatment Plaintiff-Appellant experienced

severe level of decompensation. The Prozac was increased to 40 mgs to aid in this.

By December 2000 the claimant reported that she was feeling much better with

improved appetite more restful sleep and increased energy. By January 2002 the

Prozac was decreased at the claimants claimant request due to improvement in

symptoms symptom of. anxiety (TR28) the claimant reported in mid-December that

she was still experiencing anxiety and depression sometimes the dosage of Prozac

was increased. (TR 28). The frequent decompensation of the Plaintiff-Appellant

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rendered the HAWC Clinic relatively helpless.

Health Access Washoe County was unable to help the Plaintiff-Appellant

anymore and referred the Plaintiff-Appellant to Nevada Adult Mental Health.

A disability report (Adult) was filed on August 26 ,2002. Plaintiff-Appellantth

claims severe depression, anxiety, sleep problems, unable to work with enthusiasm,

tired, unable to work 8-5 job, unable to stay awake for any extended periods of time

due to depression, the ability to not think straight, anxiety and blackout spells. (TR.69

– 78). An Application for DIB was filed August 27 , 2002 , citing severe clinicalth

depression as reason for inability to work. (TR. at 56-59). On September 7 2002.th

Also on September 22 , 2002, Plaintiff-Appellant filed a Work Activity Report,nd

stating that Plaintiff-Appellant was fired due to lack of enthusiasm, and that prior to

Depression, Plaintiff-Appellant was gainfully employed. (TR.64 and at 79-86). An

acquaintance of Plaintiff-Appellant filed a third party Daily Activities Report. This

was reported by the ALJ as being a “friend” after Plaintiff-Appellant had stated that

she had no friends. This person was a friend of the Plaintiff-Appellant’s husband but

not of the Plaintiff-Appellant herself.( TR at26) (TR. at 90-95).

On September 25 , 2002 Plaintiff-Appellant was examined by the Socialth

Security Doctor, Dr. Julius Rogina, and was rated at a GAF of 45 which rated the

Plaintiff-Appellant’s condition as “guarded.”(TR. at 120-125). On October 3 , 2002rd

Plaintiff-Appellants condition was evaluated by a Myrna C. Tashner, which Plaintiff-

Appellant never interviewed with that did not address all the criteria under Appendix

1, subpart P, Part 4 (TR. at 126 – 139). There was an undated Disability Field Report

done by a person that had no contact with Plaintiff-Appellant. Plaintiff-Appellant’s

initial determination was rejected October 3 , 2002 (TR. at 40, 41) which wasrd

submitted to Dennis Cameron, Plaintiff-Appellants former attorney. It was determined

that Plaintiff-Appellant was not restricted to any work based on Medical impairments

12.00 et seq. (TR. at 171-184).

On October 7 , 2002, a Social Security Notice was sent (TR .at 45-48). Ath

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reconsideration Disability Report was filed on October 17 ,2002. (TR. at 96-101).th

On October 18 ,2002, a request for reconsideration was filed (TR at 49). On Juneth

20 ,2003 a Medical/vocational decision guide was submitted claiming that theth

Plaintiff-Appellant was not disabled. On July 23 , 2003 a notice of reconsiderationrd

was sent, denying DIB (TR at 50-54). On August 6 , 2003 a request for hearing wasth

filed (TR at 55). An undated Claimants statement was submitted when request for

hearing was filed and the issue was disability. (TR. at 106-107).

Plaintiff-Appellants list of medications was Queitapine NIPD 400 mg up to 600

mg for mood stabilization; Seroquel 40 mg for psychosis; Prozac 60 mg for

depression; Trazodone 200-300 mg for sleep; Carbamazepine 400mg for mood

disorders; Wellbutrine 300mgs for lessening of sexual side effects. (TR at 111). The

final decision was rendered on March 25 , 2003 (TR. at 4). The appeals counselth

denied Plaintiff-Appellant’s request for reconsideration on March 25 , 2003 (TR atth

4) therefore, administrative action is final in this case. Plaintiff-Appellant asked for

and received an extension of time on May 9 , 2005 to file with the Federal Court.th

Plaintiff-Appellant fired her attorney on April 20 , 2005 due to lack of due diligence.th

Plaintiff-Appellant filed another extension of time up to and including March 10 ,th

2006 due to medical conditions.Plaintiff-Appellant filed a timely Security Act, 42 U.S.C. SS 401 et seq.,

alleging that she had been unable to work since on or about November of 2000 due

to Mental Disease to present. Claimant's application was denied initially and upon

reconsideration by the ALJ. The ALJ's decision became the final decision of the

Commissioner when the Appeals Council declined review. Claimant filed a timely

complaint for review by the federal district court. Claimant asked for and received an

extension of time up to and including March 10 , 2006. Plaintiff-Appellant Monicath

Hoeft was under the impression that no reply brief was allowed, but was notified by

the court that an extension was granted to her to file an appeal brief until June 28th

2006. Plaintiff-Appellant file a timely reply on June 28 , 2006. The District Courtth

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Magistrate file a Report and Recommendation of the U.S. Magistrate Judge on

February 1, 2007. Plaintiff-Appellant filed another extension of time due to illness

on February 28 , 2007 and motion was granted. Plaintiff-Appellant file a timelyth

objection to the Magistrates Report on June 28 , 2007. th

2.

DISTRICT COURT’S DECISION

On March 12 , 2007, the District Court adopted the magistrates findings (Docth

33) making the decision of the Court final.

3.

JURISDICTIONAL STATEMENT

[F]ederal appellate courts have jurisdiction solely over appeals from "final

decisions of the district courts of the United States." 28 U.S.C.1291. A final decision

is one that "ends the litigation on the merits and leaves nothing for the court to do but

execute the judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945).

Plaintiff-Appellant’s In Forma Pauperis status was not remitted timely to the

High Court, and Plaintiff-Appellant moved for an extension of time pursuant to 9th

Cir.R. 31-2.2.(b). Plaintiff-Appellant received the extension of time and the due date

of the opening brief was moved from May 28 , 2007 to July 9 , 2007.th th

The Ninth Circuit has consistently held that procedural requirements are more

liberally construed for pro-se litigants. Abassi v. I.N.S., 305 F.3d 1028, 1032 (9th Cir

2002) citing Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir 1984) (“this circuit has

long had a rule of liberal construction of pleadings presented by pro-se litigants”).

Points and Authorities incorporated herein.

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4.

LEGAL ISSUES PRESENTED UPON APPEAL

The ALJ Findings (TR 24-34);Report and Recommendation of the U.S. Magistrate Judge (Document 28)

pages 3 and 4 of 22

I. (ALJ Finding No. 4) These medically determinable impairmentsdo not meet or medically equal one of the listed impairments inAppendix 1, Subpart P, Regulation No. 4.

II. (ALJ Finding No. 5) The undersigned finds that the claimant’sallegations regarding her limitations are not totally credible forthe reasons set forth in the body of the decision.

III (ALJ Finding No. 6) The claimant retains the residual functionalcapacity to perform, on a regular basis, work at all levels ofphysical exertion that does not involve frequent interaction withthe public.

IV (ALJ Finding No. 11) Considering the range of work at allphysical levels of exertion that the claimant is still functionallycapable of performing, in combination with her vocational factorsand using 204.00 of the medical-vocational guidelines as aframework for decision-making, the claimant is not disabled.

V (ALJ Finding No. 12) The claimant was not under a “disability”as defined in the social security Act, at any time through the dateof this decision (20 CFR §§ 404.1520(f))

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5.

LEGAL ARGUMENT

IThese medically determinable impairments do not meet or medically equalone of the listed impairments in Appendix 1, Subpart P, Regulation No. 4.

The ALJ did not review the following document ( this numbering system is

effective until July 2 , 2007) as is clearly indicated by a review of the submittednd

portions of the material.

Appendix 1 to Subpart P of Part 404—Listing of Impairments

12.04 Affective Disorders: Characterized by a disturbance of mood, accompaniedby a full or partial manic or depressive syndrome. Mood refers to a prolongedemotion that colors the whole psychic life; it generally involves either depression orelation.

The required level of severity for these disorders is met when the requirements inboth A and B are satisfied, or when the requirements in C are satisfied.

A. Medically documented persistence, either continuous or intermittent, of one of thefollowing:

1. Depressive syndrome characterized by at least four of the following:

a. Anhedonia or pervasive loss of interest in almost all activities; or

b. Appetite disturbance with change in weight; or

c. Sleep disturbance; or

d. Psychomotor agitation or retardation; or

e. Decreased energy; or

f. Feelings of guilt or worthlessness; or

g. Difficulty concentrating or thinking; or

h. N/A

i. Hallucinations, delusions, or paranoid thinking; or

2. Manic syndrome characterized by at least three of the following:

a. N/A

b. N/A

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c. Flight of ideas; or

d. Inflated self-esteem; or

e. Decreased need for sleep; or

f. Easy distractability; or

g. Involvement in activities that have a high probability of painful consequenceswhich are not recognized; or

h. Hallucinations, delusions or paranoid thinking;

or

3. Bipolar syndrome with a history of episodic periods manifested by the fullsymptomatic picture of both manic and depressive syndromes (and currentlycharacterized by either or both syndromes);

AND

B. Resulting in at least two of the following:

1. Marked restriction of activities of daily living; or

2. Marked difficulties in maintaining social functioning; or

3. Marked difficulties in maintaining concentration, persistence, or pace; or

4. Repeated episodes of decompensation, each of extended duration;

OR

C. Medically documented history of a chronic affective disorder of at least 2 years'duration that has caused more than a minimal limitation of ability to do basic workactivities, with symptoms or signs currently attenuated by medication or psychosocialsupport, and one of the following:

1. Repeated episodes of decompensation, each of extended duration; or

2. A residual disease process that has resulted in such marginal adjustment that evena minimal increase in mental demands or change in the environment would bepredicted to cause the individual to decompensate; or

3. Current history of 1 or more years' inability to function outside a highly supportiveliving arrangement, with an indication of continued need for such an arrangement.

Plaintiff-Appellant has all of the above indicated disorders as set forth in the

Physicians’ medical histories (Dr. Chen, Dr. Rogina and Dr. John Chappel). These

cover a period beginning in November of 2000 and continuing to date. The medical

histories contained in the record submitted to this court are unanimous in the finding

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of multiple mental affective disorders. It seems apparent that the ALJ only addressed

one disorder and ignored the other medical findings. This is contrary to Sousa v.

Callahan, 143 F. 3d 1240, 1243 (9th Cir. 1998) wherein the court held; [b]ut the

commissioner’s decision “cannot be affirmed by simply isolating a specific quantum

of supporting evidence.” Rather, a court must ‘consider the record as a whole,

weighing both evidence that supports and evidence that detracts from the Secretary’s

conclusion.” See Penny v. Sullivan, 2 F.3d at 956 (9 Cir. 1993). If a treatingth

physician’s opinion is not given “controlling weight” because it is not

“well-supported” or because it is inconsistent with other substantial evidence in the

record, the Administration considers specified factors in determining the weight it

will be given. Those factors include the “[l]ength of the treatment relationship and the

frequency of examination”. In Plaintiff-Appellant’s case, the treating physician; at the

time of his report had only twenty(20) minutes with Plaintiff-Appellant and he made

a diagnosis. The “nature and extent of the treatment relationship” between the patient

and the treating physician was minimal. Id 20 CFR § 404.1527(d)(2)(i)-(ii).

“For example, the treating relationship of both physicians provides a “unique

perspective” on [Orn’s] condition. See 20 C.F.R. § 404.1527(d)(2). In addition, the

nature and extent of the physicians’ relationships with [Orn] adds significant weight

to their opinions. Id. 20 CFR § 404.1527(d)(2)(i)-(ii).” As in Orn, Plaintiff-Appellant

was seen by the non-treating physician over one hour before diagnosis was made, this

was at least three times as long as Plaintiff-Appellant’s “treating physician” had seen

her during her assessment.

The established criteria to be met requires that the impairment “meet or equal”

one of a list of specific impairments described in the regulations. If so, the claimant

is “disabled” and therefore is entitled to disability insurance benefits. If a claimant

meets or equals a listed impairment he or she will be found to be disabled at this step

without further inquiry. See 20 CFR § 404.1520(d); Tackett v. Apfel, 180 F.3d 1094.

Claimants are conclusively disabled if their condition either meets or equals a listed

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impairment. Lester v. Chater, 81 F.3d 821, 828 (9 Cir 1996). According to theth

Listing of Impairments, contrary to the ALJ’s findings, Plaintiff-Appellant is

disabled.

IIThe undersigned finds that the claimant’s allegations regarding her

limitations are not totally credible for the reasons set forth in the body of thedecision.

The magistrate found in the ALJ’s report, that the ALJ “largely however relied

on the fact that the Plaintiff had enrolled in, attended and nearly completed a law

school degree during the time she was allegedly disabled.” It is very clear to

Plaintiff-Appellant that the legal community which has dealt with her are totally

unfamiliar with the type of law school that she attended. The school was known as

Saratoga University School of Law and operated solely on the Internet. It is currently

the defendant in a fraud action brought by the California State Bar Association and

the Bureau of Private Postsecondary and Vocational Education of California.

Students attending this institution were not required to take any examination prior to

entry and allowed to complete classes at their own schedule and leisure.

Plaintiff-Appellant began law studies for several reasons. Chief among these

being the strong suggestion that she do so as soon as possible by Chief Justice

Howard D. McKibben of the District Court of Northern Nevada, following a matter

she had handled pro se. This suggestion coincided with her own desires, beliefs and

delusions that she could become a very successful attorney and thus regain the

financial and social status she had enjoyed prior to her husband’s devastating

disability. Plaintiff-Appellant’s husband supported her and urged her to go forward

with her plans. He enabled her to begin this course prior to her medical diagnoses by

supporting her financially, emotionally and by undertaking all the “normal” chores

performed by the traditional wife. Plaintiff-Appellant suffered a severe emotional

setback when the law school went defunct.

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Plaintiff-Appellant had and continues to have extreme difficulties in finding

a set of medications that will properly stabilize her multiple disorders. The ALJ noted

that Plaintiff-Appellant had inconsistent reports on medication side-effects since her

disorder varied from one visit to another, being dependent upon her manic-depressive

state at the time. Plaintiff-Appellant is dependent upon public facilities and thus has

an erratic schedule of reporting medication side-effects since the visits were at

varying times of days and monthly intervals. Plaintiff-Appellants’ record is very slim

due to the lack of proper care and the large intervals of seeing her medicating

physician. An ALJ is not “required to believe every allegation of disabling pain” or

other non-exertional impairment. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.

1989). However, to discredit a claimant’s testimony when a medical impairment has

been established, the ALJ must provide “ ‘specific, cogent reasons for the disbelief.’

” Morgan, 169 F.3d at 599 (quoting Lester, 81 F.3d at 834). The ALJ must “cit[e] the

reasons why the [claimant’s] testimony is unpersuasive.” Id. Where, as here, the ALJ

did not find “affirmative evidence” that the claimant was a malingerer, those “reasons

for rejecting the claimant’s testimony must be clear and convincing.” Id. Factors: that

an ALJ may consider in weighing a claimant’s credibility include reputation for

truthfulness, inconsistencies in testimony or between testimony and conduct, daily

activities, and “unexplained, or inadequately explained, failure to seek treatment or

follow a prescribed course of treatment.” Fair, 885 F.2d at 603; see also Thomas, 278

F.3d at 958-59 In assessing a claimant's testimony, the ALJ is responsible for

determining credibility and resolving conflicts and ambiguities. Meanel v. Apfel, 172

F.3d 1111, 1113 (9th Cir. 1999), Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.

1995). The ALJ is also responsible for resolving conflicts in medical testimony... The

ALJ' s findings, however, must be supported by specific, cogent reasons, Rashad v.

Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Once the claimant produces medical

evidence of an underlying impairment, the Commissioner may not discredit the

claimant' s testimony as to the severity of symptoms merely because they are

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unsupported by objective medical evidence. Bunnell v. Sullivan 947 F.2d 341, 343

(9th Cir. 1991) (en banc). Unless there is affirmative evidence showing that the

claimant is malingering, the Commissioner' s reasons for rejecting the claimant' s

testimony must be "clear and convincing." Lester v. Chater, 81 F.3d 821, 834 (9th

Cir. 1996) (internal quotation marks omitted); Swenson, 876 F.2d at 687. "General

findings are insufficient; rather, the ALJ must identify what testimony is not credible

and what evidence undermines the claimant' s complaints." Lester, 81 F.3d at 834;

Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). As cited in Reddick v. Chater,

157 F.3d 715 (9th Cir. 1998). In Plaintiff’s case the only reason for determining lack

of credibility was Plaintiff-Appellants attempt at law school, and not based on the

medical evidence before him.

Several courts, including this one, have recognized that disability claimants

should not be penalized for attempting to lead normal lives in the face of their

limitations. See, e.g., Cohen, 964 F.2d at 530-31 (ruling that a claimant should not be

penalized for attempting to maintain some sense of normalcy in her life); Cooper v.

Bowen, 815 F.2d 557, 561 (9th Cir. 1987)(noting that a disability claimant need not

"vegetate in a dark room" in order to be deemed eligible for benefits). See also Fair

v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) ("Many home activities are not easily

transferable to . . . the more grueling environment of the workplace, where it might

be impossible to periodically rest or take medication." ). Only if the level of activity

were inconsistent with Claimant' s claimed limitations would these activities have any

bearing on Claimant's credibility. See Reddick v. Chater, 157 F.3d 715 (9th Cir.

1998).

“Because Orn “was able to testify in a responsive manner without any

noticeable problems with memory or thought content,” the ALJ’s observations of a

claimant’s functioning may not form the sole basis for discrediting a person’s

testimony. See SSR. 96-7p at 8 (“[T]he adjudicator is not free to accept or reject the

individual’s complaints solely on the basis of . . . personal observations.”), available

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at 61 Fed. Reg. at 34,488. Instead, an ALJ’s personal observations may be used only

in “the overall evaluation of the credibility of the individual’s statements.” Id.

The ALJ’s personal observations regarding Plaintiff-Appellant’s failed attempt

at law school and his observation that such an undertaking precludes disability is

contrary to Orn. “[T]he ALJ rejected Orn’s testimony because his activities of

“read[ing], watch[ing] television and color[ing] in coloring books” “indicate that he

is more functional than alleged.” “This court has repeatedly asserted that the mere fact

that a plaintiff has carried on certain daily activities . . .does not in any way detract

from her credibility as to her overall disability.” Vertigan v. Halter, 260 F.3d 1044,

1050 (9th Cir. 2001).” As cited in Orn v. Astrue, 495 F.3d 625 (9th Cir. 2007).

Plaintiff’s reading and writing and listening tapes does not detract from her credibility

as to her disability.

The third party daily activities questionnaire is based upon Plaintiff-

Appellant’s husband’s friend who she sees on those occasions when the party is

visiting her husband and children. Plaintiff-Appellant is virtually isolated from “face-

to-face” visits from any person other than her husband’s family and/or friends,

whereas the ALJ found the Plaintiff-Appellant to be incredible because the ALJ stated

that the questionnaire was filled out by a “friend” when Plaintiff-Appellant claimed

she had no friends.

The ALJ found the plaintiff’s subjective complaints and alleged limitations not

fully supportive by the evidence.

As for the former justification, it is exactly the type we have previously recognized the regulations prohibit. See SSR 96-7p, 1996

WL 374186, at *1; Light, 119 F.3d at 792 “In this case, the ALJdisbelieved Light because no objective medical evidence supportedLight’s testimony regarding the severity of subjective symptoms fromwhich he suffers, particularly pain. An ALJ may not discredit aclaimant’s subjective testimony on that basis. To find the claimant notcredible, the ALJ must rely either on reasons unrelated to the subjectivetestimony (e.g., reputation for dishonesty), on conflicts between histestimony and his own conduct, or on internal contradictions in thattestimony.”). Robbins v. SSA, 466 F.3d 880 (9th Cir. 2006)

“[D]isability benefits may not be denied because of the failure to obtain

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treatment because he cannot obtain for lack of funds.” Gamble v. Chater, 68 F.3d 319,

321 (9th Cir. 1995). Plaintiff-Appellant is living near poverty level has no insurance

nor a means to get proper treatment outside of state facilities. Plaintiff-Appellant has

no funds to seek outside evaluation from sources that are able to spend more than

twenty minutes per session with her at intervals of three months, and make a thorough

evaluation of her mental and emotional condition. See Lester, 81 F.3d at 833 ("The

treating physician' s continuing relationship with the claimant makes him especially

qualified to evaluate reports from examining doctors, to integrate the medical

information they provide, and to form an overall conclusion as to functional

capacities and limitations, as well as to prescribe or approve the overall course of

treatment." ). Reddick v. Chater, 157 F.3d 715 (9th Cir. 1998). The treating physician

at the time of assessment for disability was extremely limited. Dr. Chen had only

seen Plaintiff-Appellant for twenty(20) minutes before making an evaluation, and no

continuing relationship was present at the time of the report.

IIIThe claimant retains the residual functional capacity to perform, on a regular

basis, work at all levels of physical exertion that does not involve frequentinteraction with the public.

Once a claimant has established that he or she suffers from a severe impairment

that prevents the claimant from doing any work he or she has done in the past, the

claimant has made a prima facie showing of disability. At this point, step five, the

burden shifts to the Commissioner to show that the plaintiff can perform some other

work that exists in “significant numbers” in the national economy, taking into

consideration the claimants residual functioning capacity, age, education and work

experience. 20 CFR § 404.1560(b)(3). There are only two ways for the commissioner

to meet this burden of showing that there is work in “significant numbers”n in the

national economy that claimant can perform: (a) by the testimony of a vocational

expert, or (b) by reference to the Medical-Vocational Guidelines at 20 CFR pt 404

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subpart P, appendix 2. See Derosiers v. Secretary of Health and Human Services, 846

F.2d 573, 577-78 (9 Cir. 1988). Social Security regulations define residualth

functional capacity as the "maximum degree to which the individual retains the

capacity for sustained performance of the physical-mental requirements of jobs." 20

CFR 404, Subpt. P, App. 2 § 200.00(c) (emphasis added). In evaluating whether a

claimant satisfies the disability criteria, the Commissioner must evaluate the claimant'

s "ability to work on a sustained basis." 20 CFR § 404.1512(a); Lester, 81 F.3d at 833

(internal quotation marks omitted). The regulations further specify: "When we assess

your physical abilities, we first assess the nature and extent of your physical

limitations and then determine your residual functional capacity for work activity on

a regular and continuing basis." Id. at § 404.1545(b). This court has noted that

"[o]ccasional symptom-free periods - and even the sporadic ability to work, are not

inconsistent with disability." Lester, 81 F.3d at 833. Reddick supra. Plaintiff

testified that she could only study sporadically between her times of her manic states,

and that no studying would occur during her depressive stages infra.

In general, if a claimant suffers only from exertional limitations, e.g., strength

limitations, the ALJ at step five may apply the Commissioner' s Medical-Vocational

Guidelines [the "grids" ] to match the claimant with appropriate work. 20 CFR Pt.

404, Subpt. P, App. 2, § 200.00(b). The grids are based on strength factors only. Id.

The ALJ may apply the grids in lieu of taking testimony of a vocational expert only

when the grids accurately and completely describe the claimant' s abilities and

limitations. Jones v. Heckler, 760 F.2d 993, 998 (9th Cir. 1985) (citation omitted). If

the grids fail accurately to describe a claimant' s limitations, the ALJ may not rely on

the grids alone to show the availability of jobs for the claimant. Id. (citations

omitted). See also Bapp v. Bowen, 802 F.2d 601, 605-06 (2d Cir. 1986) (stating that

application of the grids is inappropriate where a claimant's work capacity is

significantly diminished beyond that caused by an exertional impairment). In these

cases, the ALJ must also hear the testimony of a vocational expert. Derosiers v.

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Secretary of Health & Human Servs. 846 F.2d 573, 578 (9th Cir. 1988 (Pregerson, J.,

concurring) (citing Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985)). See

Reddick supra. Plaintiff-Appellant testified (infra) that her muscles have atrophied

and that she lost a substantial amount of weight. Plaintiff-Appellant also testified that

her ability to maintain a sustained work level was severely compromised because she

can only work for thirty(30) minutes at a time and then rest for forty-five(45) due to

fatigue and Restless Leg Syndrome. Because the ALJ' s evaluation of residual

functional capacity failed to address claimant' s ability to undertake sustained work

activity, his analysis did not comport with the Social Security Administration' s

regulatory requirements. See Cohen, 964 F.2d at 529 ("Although her mental capacity

perhaps would have been more than adequate, Cohen simply would have lacked the

stamina for such employment." ) [emphasis added]; Rose, 34 F.3d at 19 ("The

question here is the extent to which claimant' s fatigue in fact restricts his residual

functional capacity." ); Williams v. Shalala, 1995 WL 328487,(holding that, where

the ALJ failed to consider claimant's non-exertional limitations, the "ALJ' s decision,

on the whole, reflect[ed] an analysis inconsistent with the appropriate framework for

assessing disability claims premised on CFS."). The ALJ' s finding on residual

functional capacity was not supported by substantial evidence as it failed to account

for the effects of fatigue on Claimant' s ability to function in the workplace. See

Reddick supra

In Plaintiff-Appellant’s claim, the ALJ acknowledged Plaintiff-Appellant’s

limited functioning capacity and determined that she was not able to perform her

previous employment (which consisted of light to moderate lifting, stooping bending

and lifting) but yet in the same breath, assessed the Plaintiff-Appellant able to work

at all levels of exertion. The ALJ did not address the sit/stand limitations and the

frequent decompensation the plaintiff suffered due to her rapid cycling of her bi-polar

disorder that rendered her practically immobile for weeks at a time.

At step five, the ALJ can call upon a vocational expert to testify as to: 1) what

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jobs the claimant, given his or her residual functioning capacity, would be able to do;

and (2) the availability of such jobs in the national economy. At the hearing the ALJ

poses the hypothetical questions to the vocational expert that “set out all of the

claimant’s impairments” for the vocational expert’s consideration. Gamer v.

Secretary of Health and Human Servs., 815 F.2d 1275, 1279 (9 Cir 1987). Theth

ALJ’s depiction of the claimant’s disability must be accurate, detailed and supported

by the medical record. The Vocational Expert then “translates these factual scenarios

into realistic job market probabilities” by testifying on the record to what kind of

jobs the claimant can still perform and whether there is sufficient number of those

jobs available in the claimant’s region or in several other regions of the economy to

support a finding of not disabled. Derosiers, 846 F.2d at 578.

The ALJ in the Plaintiff-Appellant’s case did not rely on a Vocational Expert

and did not have one present and relied on the grids. The ALJ asserts that he found

only one limitation - plaintiff’s frequent contact with the public. Contrary to his

finding earlier on the report that Plaintiff-Appellant suffers “major depressive

disorder and bipolar disorder which are considered severe.” (Emphasis added). Nor

did he address the Medical-Vocational Guidelines at 20 CFR pt 404 subpart P,

appendix 2, and analyze what jobs the Plaintiff-Appellant can do. He merely stated

that the Plaintiff-Appellant can work at all levels of exertion.

A non-exertional limitation, if sufficiently severe, may limit the functional

capacity in ways not contemplated by the guidelines. In such a case, the guidelines

would be inapplicable. The court found that the medical-vocational guidelines did not

provide the specific evidence that it previously had required. It explained that in the

absence of such a showing, "the claimant is deprived of any real chance to present

evidence showing that she cannot in fact perform the types of jobs that are

administratively noticed by the guidelines." Ibid. The court concluded that because

the Secretary had failed to introduce evidence that specific alternative jobs existed,

the determination that Campbell was not disabled was not supported by substantial

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evidence. The regulations recognize that the rules only describe "major functional and

vocational patterns." 20 CFR pt. 404, subpt. P, app, 2 § 200.00(a). If an individual's

capabilities are not described accurately by a rule, the regulations make clear that the

individual's particular limitations must be considered. See app. 2, §§ 200.00(a), (d).

Additionally, the regulations declare that the Administrative Law Judge will not apply

the age categories "mechanically in a borderline situation," 20 CFR § 404.1563(a),

and recognize that some claimants may possess limitations that are not factored into

guidelines, see app. 2, § 200.00(e). Thus, the regulations provide that the rules will

be applied only when they describe a claimant's abilities and limitations accurately.

SSR 83-46c.

IVConsidering the range of work at all physical levels of exertion that the

claimant is still functionally capable of performing, in combination with hervocational factors and using 204.00 of the medical-vocational guidelines as a

framework for decision-making, the claimant is not disabled.

204.00 Maximum sustained work capability limited to heavy work (or very heavy

work) as a result of severe medically determinable impairment(s). The residual

functional capacity to perform heavy work or very heavy work includes the functional

capability for work at the lesser functional levels as well, and represents substantial

work capability for jobs in the national economy at all skill and physical demand

levels. Individuals who retain the functional capacity to perform heavy work (or very

heavy work) ordinarily will not have a severe impairment or will be able to do their

past work—either of which would have already provided a basis for a decision of

"not disabled". (emphasis added). Environmental restrictions ordinarily would not

significantly affect the range of work existing in the national economy for individuals

with the physical capability for heavy work (or very heavy work). Thus an

impairment which does not preclude heavy work (or very heavy work) would not

ordinarily be the primary reason for unemployment, and generally is sufficient for a

finding of not disabled, even though age, education, and skill level of prior work

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experience may be considered adverse. But the grids, as cited, are inapplicable

“[w]hen a claimant’s non-exertional limitations are ‘sufficiently severe’ so as to

significantly limit the range of work permitted by the claimant’s exertional

limitations.” Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir.1988). Hoopai v.

Astrue, -- F.3d --, No. 05-16128 (9th Cir. Aug. 27, 2007). Plaintiff-Appellant was

found to have severe impairments and unable to perform any of her past relevant

work. A vocational expert is required only when there are significant and

“sufficiently severe” non-exertional limitations not accounted for in the grid. Clearly,

the severity of the limitations at step five that would require use of a vocational expert

must be greater than the severity of impairments determined at step two, otherwise

the two steps would collapse and a vocational expert would be required in every case

in which a step-two determination of severity is made. “The ALJ acknowledged that

because Orn had a severe medically determinable impairment, “all medically

determinable impairments must be considered in the remaining steps of the sequential

analysis.” 42 USC § 423(d)(2)(B) (“In determining whether an individual’s . .

.impairments are of a sufficient medical severity that such . . .impairments could be

the basis of eligibility under this section, the Commissioner of Social Security shall

consider the combined effect of all of the individual’s impairments without regard to

whether any such impairment, if considered separately, would be of such severity.”);

Celaya v. Halter, 332 F.3d 1177, 1181-82 (9th Cir. 2003). Orn v. Astrue , supra, No.

05-16181 (9 Cir. July 16, 2007). th

The ALJ, in his assessment, failed to note that Plaintiff-Appellant is of slight build

and presently weighs only about a hundred pounds, and is barely able to lift 5 lbs.

The ALJ also disregarded the plaintiff-Appellant’s testimony: (TR pp 233-251 on

pages TR 237-238)

ALJ: Do you play any sports?

A: Nothing.

ALJ: Bowl? Golf? Tennis?

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A: I used to roller skate, but I was in bed for a long time and my muscles just

atrophied, and I couldn’t skate after that.

(TR pg 242)

ALJ: Okay. What are the medical problems that you believe keep you from being able

to hold down a job?

A: Its mainly my depressive state, my sleeping – well, when I [sic] into depression,

I sleep for days and that happens to me about twice a month where I just lay in bed

and don’t do anything.

ALJ: Have you had any significant weight loss from that?

A: Yeah, I’ve lost about 40 pounds.

Defendants addressed Singletary v. Bowen 798 F.2d 818 (5th Cir1986) that

was codified in SSR 96-9p. But failed to take into account Claimant’s sit/stand issues

and once again relied on Claimant’s law schooling to demonstrate the alleged ability

to sit and stand in a more customary educational setting. As discussed previously the

schooling in question was done in a home setting at the physical and emotional

discretion of Claimant.

RFC is the individual's maximum remaining ability toperform sustained work on a regular and continuing basis;i.e., 8 hours a day, for 5 days a week, or an equivalent workschedule. It is not the least an individual can do, but themost, based on all of the information in the case record.The RFC assessment considers only those limitations andrestrictions that are caused by an individual's physical ormental impairments. It does not consider limitations orrestrictions due to age or body habits, since the Act requires that an individual's inability to work must result from the

individual's physical or mental impairment(s).

Plaintiff-Appellant has already testified that she cannot sit or stand at/on or

about 30 minutes at one time. Defendants argument that Plaintiff-Appellant can

concentrate on her law studies eight hours a day is fallacious. See TR 240-241

ALJ: How many hours a day does it take you to do your schoolwork?

A: Well. The school says I should be working six hours a day, and I try and maintain

a schedule, but its like, I’d work for 20 minutes, and then I’d have to take a break for

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45 minutes, and so that goes with me all day when I’m not in my depressive mode

where I just sleep.

“At Claimant' s hearing before the ALJ, a vocational expert did testify about

the nature of Claimant' s limitations. The expert testified that if Claimant' s testimony

were credited concerning her fatigue, she would be unable to perform her past work,

due to her need to take frequent naps and an inability to carry out repetitive tasks. See

Kornock v. Harris, 648 F.2d 525, 527 (9th Cir. 1980) (citations omitted) ("The ability

to work only a few hours at day or to work only on an intermittent basis is not the

ability to engage in ' substantial gainful activity.' "). The vocational expert also

testified that if Claimant were to require just one day per week of rest, she would be

unable to perform her past work or any other work.” See Reddick supra. Plaintiff-

Appellant had not had the benefit of a Vocational Expert and Plaintiff Appellant did

not have the advantage of cross-examining the VE pursuant to Burkhart v. Bowen,

856 F.2d 1335 (9th Cir. 1988).

Had Plaintiff-Appellant testified further she would have stated for the record

that it was customary for her to have manic episodes wherein she would work for

periods of up to 48 hours. However even during these periods Plaintiff-Appellant

could not physically sit for more than 30 minutes at a time without incurring an

episode of Restless Leg Syndrome.

“The expert testified that if an employee needed to lie down two or three times

a day for up to 45 minutes, as Lingenfelter testified was necessary, that “essentially

would eliminate any of the positions described, and in fact any of the positions at the

sedentary level. The vocational expert also testified, prior to addressing

Lingenfelter’s testimony that he needed to lie down two or three times a day, that the

sedentary job base available to a person with the RFC assessed by the ALJ would

start to significantly erode if the hypothetical employee needed to stand for one to two

minutes every 15-20 minutes, instead of every 30 minutes as the ALJ found. Further,

if the employee had to stand four to five minutes every 30 minutes, there would be

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a “good 50 percent erosion” of the job base. Finally, if the employee needed to

elevate his legs beyond waist level, that “would be rather impractical,” and if the

employee had to elevate both legs the “job base could easily be eroded . . up to the

80 percent level.” Lingenfelter v. Astrue, -- F.3d --, No. 04-56934 (9th Cir. Oct. 4,

2007). Given the ALJ’s finding that the claimant requires a sit/stand option, a

limitation which by itself affects the occupational base, vocational expert testimony

was required.”

Applicable law: A sit/stand limitation affects a claimant’s ability to perform the full

range of work and reduces the occupational base of work he can perform. See SSR

83-12. Under such circumstances, vocational expert testimony is needed to “clarify

the implications for the occupational base.” Similarly, SSR 96-9p specifically

provides:

An individual may need to alternate the required sitting of sedentary work by

standing (and, possibly, walking) periodically. Where this need cannot be

accommodated by scheduled breaks and a lunch period, the occupational base for a

full range of unskilled sedentary work will be eroded. The extent of the erosion will

depend on the facts in the case record, such as the frequency of the need to alternate

sitting and standing and the length of time needed to stand. The RFC assessment must

be specific as to the frequency of the individual’s need to alternate sitting and

standing. It may be especially useful in these situations to consult a vocational

resource in order to determine whether the individual is able to make an adjustment

to other work.

SSR 85-15 specifically provides the following because of the difficulty in

adequately addressing the extent of a mental illness and the effects of employment on

an individual who suffers from severe mental illness. Plaintiff-Appellant is now on

Klonopin because of the stress incurred by her mental illness and the panic disorders

that are precipitated by that stress:

Stress and Mental Illness — Since mental illness is defined and

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characterized by maladaptive behavior, it is not unusual that thementally impaired have difficulty accommodating to the demands ofwork and work-like settings. Determining whether these individuals willbe able to adapt to the demands or "stress" of the workplace is oftenextremely difficult. This section is not intended to set out anypresumptive limitations for disorders, but to emphasize the importanceof thoroughness in evaluation on an individualized basis. Individualswith mental disorders often adopt a highly restricted and/or inflexiblelifestyle within which they appear to function will. Good mental healthservices and care may enable chronic patients to function adequately inthe community by lowering psychological pressures, by medication, andby support from services such as outpatient facilities, day care programs,social work programs and similar assistance. The reaction to thedemands of work (stress) is highly individualized, and mental illness ischaracterized by adverse responses to seemingly trivial circumstances.The mentally impaired may cease to function effectively when facingsuch demands as getting to work regularly, having their performancesupervised, and remaining in the workplace for a full day. A person maybecome panicked and develop palpitations, shortness of breath, or feelfaint while riding in an elevator; another may experience terror andbegin to hallucinate when approached by a stranger asking a question.Thus, the mentally impaired may have difficulty meeting therequirement of even so-called "low stress" jobs. Because response to thedemands of work is highly individualized, the skill level of a position isnot necessarily related to the difficulty an individual will have inmeeting the demands of the job. A claimant's condition may makeperformance of an unskilled job as difficult as an objectively moredemanding job, for example, a busboy need only clear dishes fromtables. But an individual with a severe mental disorder may findunmanageable the demand of making sure that he removes all the dishes,does not drop them, and gets the table cleared promptly for the waiter orwaitress. Similarly, an individual who cannot tolerate being supervisedmay be not able to work even in the absence of close supervision; theknowledge that one's work is being judged and evaluated, even when thesupervision is remote or indirect, can be intolerated [sic] for somementally impaired persons. Any impairment-related limitationscreated by an individual's response to demands of work, however,must be reflected in the RFC assessment. (Emphasis added)

Plaintiff-Appellant is of the informed belief that the ALJ was blinded by the

perception that any person competent to attend Law School was competent to work

notwithstanding a finding of severe mental impairments. The ALJ apparently did not

understand the information Plaintiff-Appellant provided with respect to the “law

school” and the methods used by that school to “train attorneys.” Plaintiff-Appellant

was never subjected to any structured classroom work, she was required to pay

tuition, buy the books, read them and to pass an open-book exam at her leisure. This

lack of structure allowed Plaintiff-Appellant’s delusional thinking and mental

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disorders to ripen into severe mental impairments requiring continuing medication

and treatment. Plaintiff-Appellant’s reading and writing in her “law schooling”

helped to alleviate the stress of mentally not being able to cope with the outside world

and potential working environments.

VThe claimant was not under a “disability” as defined in the social securityAct, at any time through the date of this decision (20 CFR §§ 404.1520(f))

The ALJ specifically found in this section:

20 CFR 404.1520(f) Your impairment(s) must prevent you from doingyour past relevant work. If we cannot make a determination or decisionat the first three steps of the sequential evaluation process, we willcompare our residual functional capacity assessment, which we madeunder paragraph (e) of this section, with the physical and mentaldemands of your past relevant work. (See §404.1560(b).) If you can stilldo this kind of work, we will find that you are not disabled.

However, in step 7 of the ALJ’s findings, he specifically holds that “the

claimant is unable to perform any of her past relevant work.”

Further the ALJ directly contradicts the following:

20 CFR 404.1520(e) When your impairment(s) does not meet or equala listed impairment. If your impairment(s) does not meet or equal alisted impairment, we will assess and make a finding about your residualfunctional capacity based on all the relevant medical and other evidencein your case record, as explained in §404.1545. (See paragraph (g)(2) ofthis section and §404.1562 for an exception to this rule.) We use ourresidual functional capacity assessment at the fourth step of thesequential evaluation process to determine if you can do your pastrelevant work (paragraph (f) of this section) and at the fifth step of thesequential evaluation process (if the evaluation proceeds to this step) todetermine if you can adjust to other work (paragraph (g) of this section).

This finding of non-listing is fallacious. As previously set forth, the

combination of severe depression and bipolar disorder is a combination of affective

disorders and constitutes compliance with the listing as a mental impairment pursuant

to Appendix 1 to Subpart P of Part 404—Listing of Impairments. Thus Plaintiff-

Appellant does in fact meet the requirement of listed impairments.

Additionally the ALJ is required a sequential evaluation process which

as

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required in 20 CFR §404.1520 which must certainly include the effect of stress on

mental impairments. (See the following):

Stress and Mental Illness — Since mental illness is defined andcharacterized by maladaptive behavior, it is not unusual that thementally impaired have difficulty accommodating to the demands ofwork and work-like settings. Determining whether these individuals willbe able to adapt to the demands or "stress" of the workplace is oftenextremely difficult. This section is not intended to set out anypresumptive limitations for disorders, but to emphasize the importanceof thoroughness in evaluation on an individualized basis. (Emphasisadded) SSR 85-15

The importance of stress is well recognized as being a key element in the

determination of the ability to function in the workplace. The following indicates the

weight that should be allotted to this factor:

A person whose vocational factors of age, education, and workexperience would ordinarily be considered favorable (i.e., very youngage, university education, and highly skilled work experience) wouldhave severely limited occupational base if he or she has a mentalimpairment which causes a substantial loss of ability to respondappropriately to supervision, coworkers, and usual work situations. Afinding of disability would be appropriate. SSR 85-15

The failure of the ALJ to look beyond the fact that Plaintiff-Appellant received

a “legal” education from a “diploma mill” institution is apparent. The reiteration

regarding Plaintiff-Appellant’s attendance at “law school” is rampant throughout not

only his findings, but the findings of the Magistrate as well. Both of these parties

show no interest in reviewing and assessing the medical records and findings of the

several Physicians involved in this matter. Rather they focus their attention on “law

school.” The requirement to review the mental impairments that are found in the

testimony of Plaintiff-Appellant as well as the medical histories provided is in direct

contradiction to the following:

(g) Your impairment(s) must prevent you from making an adjustment toany other work. (1) If we find that you cannot do your past relevantwork because you have a severe impairment(s) (or you do not have anypast relevant work), we will consider the same residual functionalcapacity assessment we made under paragraph (e) of this section,together with your vocational factors (your age, education, and workexperience) to determine if you can make an adjustment to other work.(See §404.1560(c).) If you can make an adjustment to other work, we

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will find you not disabled. If you cannot, we will find you disabled.

The absence of a Vocational Expert as set forth above, shows the absolute

failure of the ALJ to properly evaluate the Plaintiff-Appellant’s impairments and thus

failed abysmally to reach a just and legal conclusion.

The then counsel of Plaintiff-Appellant refused to let in plaintiff’s husband to

provide lay testimony. In determining whether a claimant is disabled, an ALJ must

consider lay witness testimony concerning a claimant’s ability to work. See Dodrill

v. Shalala, 12 F.3d 915, 919 (9 Cir. 1993); 20 C.F.R. §§ 404.1513(d)(4) & (e),th

416.913(d)(4) & (e). Indeed, “lay testimony as to a claimant’s symptoms or how an

impairment affects ability to work is competent evidence . . . and therefore cannot be

disregarded without comment.” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir.

1996).

6.CONCLUSION

The crux of the matter is that the ALJ, the Magistrate and Judge of the District

Court of Nevada “rubber stamped” the denial of Plaintiff-Appellant’s fight for her

disability. Plaintiff’s former Counsel in Plaintiff-Appellant’s contention did a poor

job of representation and wasted judicial resources through this malfeasance.

“Appellants have a constitutionally protected property interest in receiving disability

benefits. Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir. 1990) (holding that for

purposes of procedural due process, an applicant for social security benefits who

cannot work because of a disability has a “significant property interest in receiving

disability benefits”).” Counsel through his lack of due diligence deprived Plaintiff-

Appellant of her due process rights in receiving her benefits in a timely fashion.

Secondly the ALJ focused on Plaintiff-Appellant’s failed attempt at law school

and surmised that anyone competent enough to handle “law school” was competent

enough to work. The ALJ did not take into consideration the lax schedule and the

study modes of the Plaintiff-Appellant, which required sit and stand variations within

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short periods of time, and the fact that Plaintiff-Appellant was able to work out her

studies around her severe mental disabilities.

Thirdly the ALJ misstates facts. He concluded that Plaintiff-Appellant would

only be able to work in an atmosphere that consisted of minimal contact with other

persons, without taking into consideration Plaintiff-Appellants sit/stand issues and

her mental and emotional stress brought on by her severe mental disabilities. He

concluded that Plaintiff-Appellant was not able to do her previous work which

required light to moderate lifting, stooping and lifting, then concluded Plaintiff-

Appellant was able to do work at all levels of exertion.

Fourth, the ALJ did not have a vocational expert present as required by the

Ninth Circuit in Plaintiff-Appellant’s situation, nor did he rely on the Dictionary of

Occupational Titles to inform Plaintiff-Appellant and the Court as to what work she

would be able to do, given her severe limitations.

Fifth, the ALJ stated that Plaintiff-Appellant’s disorders were severe, but were

not severe enough to render her disabled, contrary to the listing of impairments in

12.04 Affective Disorders.

Sixth, the ALJ did not find the Plaintiff-Appellant’s testimony credible based

on her schooling and based on the fact that her husband’s friend filled out the daily

activities questionnaire and assumed, without basis, that this person was Plaintiff-

Appellant’s friend as well, when Plaintiff-Appellant stated that she had no friends.

The credibility issue was not in accordance with prevailing case law as cited above.

Seventh, the ALJ did not consider or question Plaintiff-Appellant about her

decompensation during her depressive stages as evinced by the yo-yo-ing of her

medication at the HAWC clinic.

The Plaintiff-Appellant’s former counsel did not allow for lay testimony. In

determining whether a claimant is disabled, an ALJ must consider lay witness

testimony concerning a claimant’s ability to work. See Dodrill v. Shalala, 12 F.3d

915, 919 (9 Cir. 1993); 20 C.F.R. §§ 404.1513(d)(4) & (e), 416.913(d)(4) & (e).th

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Indeed, “lay testimony as to a claimant’s symptoms or how an impairment affects

ability to work is competent evidence . . . and therefore cannot be disregarded without

comment.” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996).

7.

REQUEST FOR REVERSE AND REMAND WITH INSTRUCTIONS FOR

THE PAYMENT OF BENEFITS

Plaintiff-Appellant respectfully requests asks this Honorable Court to reverse

the District Court with instructions for the payment of benefits.

“We may set aside the commissioner’s denial of disability insurance benefits

when the ALJ’s findings are based on legal error. Penny v. Sullivan, 2 F.3d 953, 956

(9 Cir. 1993).” The ALJ made three significant legal errors resulting in an improperth

denial of benefits. The Social Security Administration’s disability determination

should be upheld unless it contains legal error or is not supported by substantial

evidence. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006);

42 U.S.C. §§ 405(g), 1383(c)(3). “Substantial evidence is more than a mere scintilla

but less than a preponderance.” Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir.

2005) (internal quotation marks and citation omitted). It is “such relevant evidence as

a reasonable mind might accept as adequate to support a conclusion.” Burch, 400 F.3d

at 679 (internal quotation marks and citation omitted). “Where evidence is susceptible

to more than one rational interpretation,” the ALJ’s decision should be upheld. Id.

“However, a reviewing court must consider the entire record as a whole and may not

affirm simply by isolating a ‘specific quantum of supporting evidence.’ ” Robbins v.

Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen,

879 F.2d 498, 501 (9th Cir. 1989)).

The first error was the failure to recognized that severe depression and Bi-Polar

Disorder are both affective mental impairments and are two of the medical

impairments listed in Appendix 1, Subpart P, Regulation No. 4. The ALJ presented

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no evidence to support a finding that these mental impairments were not severe

enough to deny Disability Insurance Benefits.

The second error was the use of the grids to determine that the Plaintiff-

Appellant was not disabled. Although the ALJ was presented with physicians’

opinions which stated Plaintiff-Appellant suffered from severe mental impairments,

he chose to ignore these medical records and find Plaintiff-Appellant was not disabled

due to mental impairment. The ALJ presented no testimony or written documentation

to support his position. Counsel for claimant did not call the spouse of claimant

(Plaintiff-Appellant) although he was available and willing to testify as to the daily life

of Plaintiff-Appellant.

The third legal error committed by the ALJ was he failed to establish that there

are significant jobs in the national economy that Plaintiff-Appellant can do. There are

two ways for the Commissioner to meet the burden of showing that there is other work

in “significant numbers” in the national economy that claimant can do: 1) by the

testimony of a vocational expert, or 2) by reference to the Medical-Vocational

Guidelines at 20 CFR pt. 404, subpt. P. App. 2.. First of all no testimony from a

vocational expert was taken, and secondly the grids are predicated on a claimant

suffering from an impairment which manifests itself by limitations in meeting the

strength requirements of jobs (“exertional limitations”); they may not be fully

applicable where the nature of a claimants impairment does not result in such

limitations (“non-exertional limitations”). 20 CFR part 404, Subpart P, Appendix 2 §

200.00(e); 30 Fed. Proc., L. Ed. § 71:205. The reason for this limitation on the grids’

application is that, despite having the residual functioning capacity to perform a full

range of unskilled occupations at a given exertional level, a claimant may not be able

to adjust to these jobs because of non-exertional impairments. SSR 83-10 (January

1983). In particular, non-exertional impairments - including postural and manipulative

such as difficulty reaching, handling, stooping, climbing, crawling, or crouching -

may, if sufficiently severe, limit a claimant’s functional capacity in ways not

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contemplated by the grids. 20 CFR § 404.1569; Tackett v. Apfel, 180 F.3d at 1101-2

(quoting Derosiers v. Sec’y of Health and Human Servs., 846 F.2d 573, 577 (9 Cirth

1988). Thus the Tackett Court held that “the grids should only be applied where a

claimant’s functional limitations fall into a standardized pattern ‘accurately and

completely’ described by the grids.” Lounsbury v. JoAnn Barnhart, 464 F.3d 944 (9th

Cir 2006).

The ALJ, having determined Plaintiff-Appellants non-exertional impairments

were severe, then failed to apply “Tackett’s bar on exclusive reliance on the grids is

limited by its requirement that the non-exertional impairments invoked must be

significant enough to limit further the range of work permitted by exertional

limitations before precluding application of the grids.” Tackett v. Apfel, 180 F.3d at

1104. Because the grids are not designed to establish automatically the existence of

jobs for persons with both severe exertional and non-exertional impairments, they may

not be used to direct a conclusion of non-disability. Tackett v. Apfel, 180F.3d 1094,

1002 (9 Cir 1999). Where a claimant suffers from only non-exertional limitations,th

the grids are inappropriate and the ALJ must rely on other evidence. Lounsbury v.

JoAnn Barnhart, 464 F.3d 944 (9th Cir 2006). The ALJ took no other testimony

regarding the Plaintiff-Appellant’s work impairments.

In the alternative, Plaintiff-Appellant requests that the case be remanded for

further hearing since the ALJ failed to take testimony regarding the mental disorders

suffered by Plaintiff-Appellant and the ALJ failed to bring in a Vocational Expert and

did not therefore have sufficient evidence to properly assess the non-exertional

impairments of Plaintiff-Appellant and the jobs available in the national economy in

light of Plaintiff-Appellants severe mental disorders.

WHEREFORE Plaintiff-Appellant prays that this Honorable Court grants a

remand for calculation of Claimant’s Disability Insurance Benefits or in the

alternative that the case be remanded for further hearing to determine if Plaintiff-

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Appellant is entitled to Disability Insurance Benefits under prevailing Statutes and

common law.

DATED:

______________________

Monica Hoeft

Federal Disability Appeal

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