Federal Disability Appeal

Monica Hoeft P.O. Box 6946 2 Reno, NV 89513 (775)544-7486 1

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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT *****

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Monica Hoeft

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Appellate Case No 07-15651

Plaintiff- Appellant

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

vs

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Michael J. Astrue1 11 Acting Commissioner of Social Security Administration, 12 Defendant Defendant - Appellee. 13 _______________________________/ 14

1.

STATEMENT OF FACTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Appellant found such work at Hancock Fabrics.

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

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

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

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

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

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

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

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

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

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

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

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

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decided to represent themselves. Plaintiff-Appellant prepared the necessary

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

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

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

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

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

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Reno-Sparks area and locate housing where they could live frugally. Several moves Page 2 of 32

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

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

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

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Plaintiff-Appellant.

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

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

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

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

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

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Fabrics store where she worked.

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

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

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

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

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

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

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

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

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

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At various times throughout the treatment Plaintiff-Appellant experienced

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

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

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

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

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

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

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was increased. (TR 28). The frequent decompensation of the Plaintiff-Appellant Page 3 of 32

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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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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On October 7th , 2002, a Social Security Notice was sent (TR .at 45-48). A Page 4 of 32

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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 10th, 2006. Plaintiff-Appellant Monica 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 28th, 2006. The District Court

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

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

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

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

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2.

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DISTRICT COURT’S DECISION

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

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33) making the decision of the Court final.

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3.

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JURISDICTIONAL STATEMENT

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

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

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

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

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

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

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

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

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The Ninth Circuit has consistently held that procedural requirements are more

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

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

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

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Points and Authorities incorporated herein.

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4.

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LEGAL ISSUES PRESENTED UPON APPEAL

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The ALJ Findings (TR 24-34); Report and Recommendation of the U.S. Magistrate Judge (Document 28) pages 3 and 4 of 22

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I.

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

II.

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

III

(ALJ Finding No. 6) The claimant retains the residual functional capacity to perform, on a regular basis, work at all levels of physical exertion that does not involve frequent interaction with the public.

IV

(ALJ Finding No. 11) Considering the range of work at all physical levels of exertion that the claimant is still functionally capable of performing, in combination with her vocational factors and using 204.00 of the medical-vocational guidelines as a framework for decision-making, the claimant is not disabled.

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(ALJ Finding No. 12) 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))

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Page 7 of 32

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5.

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LEGAL ARGUMENT

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I These medically determinable impairments do not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4.

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The ALJ did not review the following document ( this numbering system is effective until July 2nd, 2007) as is clearly indicated by a review of the submitted portions of the material.

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

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12.04 Affective Disorders: Characterized by a disturbance of mood, accompanied 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. 11

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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.

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

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

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

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b. Appetite disturbance with change in weight; or

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c. Sleep disturbance; or

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d. Psychomotor agitation or retardation; or

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e. Decreased energy; or

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f. Feelings of guilt or worthlessness; or

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g. Difficulty concentrating or thinking; or

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h. N/A

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i. Hallucinations, delusions, or paranoid thinking; or

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

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a. N/A

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b. N/A Page 8 of 32

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c. Flight of ideas; or

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d. Inflated self-esteem; or

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e. Decreased need for sleep; or

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f. Easy distractability; or

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

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h. Hallucinations, delusions or paranoid thinking; or 3. Bipolar syndrome with a history of episodic periods manifested by the full symptomatic picture of both manic and depressive syndromes (and currently characterized 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

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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 work activities, with symptoms or signs currently attenuated by medication or psychosocial 19 support, and one of the following: 18

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

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 21

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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. 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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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her during her assessment.

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

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

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

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

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

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Claimants are conclusively disabled if their condition either meets or equals a listed Page 10 of 32

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

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

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disabled.

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II The undersigned finds that the claimant’s allegations regarding her limitations are not totally credible for the reasons set forth in the body of the decision. 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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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claimant' s testimony as to the severity of symptoms merely because they are Page 12 of 32

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

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

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

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

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

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

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

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

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

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

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medical evidence before him.

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

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

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

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

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

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

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

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

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

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

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

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1998).

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

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

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

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

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individual’s complaints solely on the basis of . . . personal observations.”), available Page 13 of 32

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

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

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

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

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

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

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

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

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

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

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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-

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

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

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

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

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

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she had no friends.

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The ALJ found the plaintiff’s subjective complaints and alleged limitations not fully supportive by the evidence.

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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 ALJ disbelieved Light because no objective medical evidence supported Light’s testimony regarding the severity of subjective symptoms from which he suffers, particularly pain. An ALJ may not discredit a claimant’s subjective testimony on that basis. To find the claimant not credible, the ALJ must rely either on reasons unrelated to the subjective testimony (e.g., reputation for dishonesty), on conflicts between his testimony and his own conduct, or on internal contradictions in that 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

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Page 14 of 32

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

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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

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

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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

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

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

9

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

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

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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 17 18 19 20 21 22 23 24 25 26 27

III The claimant retains the residual functional capacity to perform, on a regular basis, work at all levels of physical exertion that does not involve frequent interaction 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

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.

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.

Gamer v.

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

14

IV Considering the range of work at all physical levels of exertion that the claimant is still functionally capable of performing, in combination with her vocational factors and using 204.00 of the medical-vocational guidelines as a 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

12 13

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.

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?

A vocational expert is required only when there are significant and

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; 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 most, based on all of the information in the case record. The RFC assessment considers only those limitations and restrictions that are caused by an individual's physical or mental impairments. It does not consider limitations or restrictionsduetoageorbodyhabits,sincetheActrequiresthatanindividual'sinabilitytoworkmustresultfromthe individual's physical or mental impairment(s).

18 19 20 21 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 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

characterized by maladaptive behavior, it is not unusual that the mentally impaired have difficulty accommodating to the demands of work and work-like settings. Determining whether these individuals will be able to adapt to the demands or "stress" of the workplace is often extremely difficult. This section is not intended to set out any presumptive limitations for disorders, but to emphasize the importance of thoroughness in evaluation on an individualized basis. Individuals with mental disorders often adopt a highly restricted and/or inflexible lifestyle within which they appear to function will. Good mental health services and care may enable chronic patients to function adequately in the community by lowering psychological pressures, by medication, and by support from services such as outpatient facilities, day care programs, social work programs and similar assistance. The reaction to the demands of work (stress) is highly individualized, and mental illness is characterized by adverse responses to seemingly trivial circumstances. The mentally impaired may cease to function effectively when facing such demands as getting to work regularly, having their performance supervised, and remaining in the workplace for a full day. A person may become panicked and develop palpitations, shortness of breath, or feel faint while riding in an elevator; another may experience terror and begin to hallucinate when approached by a stranger asking a question. Thus, the mentally impaired may have difficulty meeting the 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 not necessarily related to the difficulty an individual will have in meeting the demands of the job. A claimant's condition may make performance of an unskilled job as difficult as an objectively more demanding job, for example, a busboy need only clear dishes from tables. But an individual with a severe mental disorder may find unmanageable the demand of making sure that he removes all the dishes, does not drop them, and gets the table cleared promptly for the waiter or waitress. Similarly, an individual who cannot tolerate being supervised 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 supervision is remote or indirect, can be intolerated [sic] for some mentally impaired persons. Any impairment-related limitations 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 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

V 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)) The ALJ specifically found in this section: 20 CFR 404.1520(f) Your impairment(s) must prevent you from doing your past relevant work. If we cannot make a determination or decision at the first three steps of the sequential evaluation process, we will compare our residual functional capacity assessment, which we made under paragraph (e) of this section, with the physical and mental 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. 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 equal 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 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 this section and §404.1562 for an exception to this rule.) We use our residual functional capacity assessment at the fourth step of the 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 sequential evaluation process (if the evaluation proceeds to this step) to determine 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 PlaintiffAppellant does in fact meet the requirement of listed impairments. Additionally the ALJ is required a sequential evaluation process which 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 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Stress and Mental Illness — Since mental illness is defined and characterized by maladaptive behavior, it is not unusual that the mentally impaired have difficulty accommodating to the demands of work and work-like settings. Determining whether these individuals will be able to adapt to the demands or "stress" of the workplace is often extremely difficult. This section is not intended to set out any presumptive limitations for disorders, but to emphasize the importance of thoroughness in evaluation on an individualized basis. (Emphasis added) 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 work experience would ordinarily be considered favorable (i.e., very young age, university education, and highly skilled work experience) would have severely limited occupational base if he or she has a mental impairment which causes a substantial loss of ability to respond appropriately to supervision, coworkers, and usual work situations. A finding 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 to 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 past relevant work), we will consider the same residual functional capacity assessment we made under paragraph (e) of this section, together with your vocational factors (your age, education, and work experience) 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 Page 26 of 32

1 2 3 4 5 6 7 8 9 10 11 12 13 14

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

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 9

Plaintiff-Appellant respectfully requests asks this Honorable Court to reverse 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 Page 30 of 32

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 PlaintiffPage 31 of 32

1

Appellant is entitled to Disability Insurance Benefits under prevailing Statutes and

2

common law.

3 4

DATED:

5 6 7

______________________

8

Monica Hoeft

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