Reply Brief To The Attorney General

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

REPLY BRIEF

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

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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). On appeal, we review de novo the district court’s order upholding a decision of the Commissioner denying benefits to an applicant. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003).A reply brief is due with 14 days of the due date of the response brief. Plaintiff-Appellant Monica Hoeft asked for and received an unopposed extension from opposing Counsel Elizabeth Firer on March 20th, 2008. The filing of the Reply brief was extended to April 17th, 2008.

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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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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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2.

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ISSUES

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A.

Whether the ALJ properly considered the Claimants mental impairment including properly assessing the medical evidence, Claimant’s residual functioning capacity, credibility and;

B.

Whether the claimant has presented any basis to over turn the ALJ’s decision.

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3.

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STATEMENT OF THE CASE

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In August 2002 Monica Hoeft protectively filed an application for DIB stating

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she had become disabled On November 3rd due to severe clinical depression from the

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loss of her long time and beloved job of 10 years due to the discrimination of her

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husband in her presence pursuant to Star v. Rabello, 97 Nev. 124, 125, 625 P.2d 90,

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(1981). As a result of that depression, Monica Hoeft suffered sleep problems, anxiety

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and blackouts (TR1 45, 50, 53, 56-59). Her application was denied initially and on

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reconsideration.( TR 45-48, 50-54). Monica Hoeft requested an administrative

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hearing (TR 55), and on June 15 2004, appeared and testified before the ALJ (TR

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233-251). Monica Hoeft was poorly represented by an attorney who’s only desire,

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it appeared, was to take this matter to appeals in the interest of money. In a decision

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dated August 12th, 2004, the ALJ found that claimant was not disabled within the

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meaning of the Social Security Act (TR 24-34). The ALJ decision became the final

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TR is Appellant’s transcript Page 2 of 20

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decision of the commissioner when the Appeals Council denied the claimant Monica

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Hoeft’s request for review (TR 13-15).

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Monica Hoeft sought judicial review pursuant to 42 USC § 405(g). The parties

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filed cross-motions for summary judgement (Opposing Counsel’s Record - CR2

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21,25; SER3 254). On Feb 1, 2007, the Magistrate Judge issued a Ruling siding with

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the Commissioner’s cross motion for Summary Judgement. Monica Hoeft filed

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objections and the Commissioner responded. On March 13th, 2007 the District Court

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adopted the commissioners findings and entered judgement, upholding the

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Commissioner’s findings. Claimant filed a notice of appeal on April 9th, 2007

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(Opposing Counsel’s Record CR 35; SER 255, 281-289).

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4.

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STATEMENT OF FACTS

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A. Vocational Profile

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Claimant Monica Hoeft is now an individual approaching Advanced Age.

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Note: Since Moving from one age category to another can change the guidelines’

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directed decision from “not disabled” to “disabled”, the mere delay in processing as

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appeal can...change its outcome. Martin on Social Security § P 630. Claimants

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Associate Degree and law school course work constitutes education beyond High

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school and past relevant work experience as a sales clerk in a fabric store and a deli-

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worker.

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B. Medical Evidence

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Monica Hoeft was treated at Health Access Washoe Clinic from November

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2000 to January 2002 for complaints of depression and general health issues. She yo-

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Cr denotes the Opposing Counsel’s Clerk Record

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SER denotes the Opposing Counsel’s Supplemental Excerpts of the Record Page 3 of 20

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yoed between 20 and 40 mgs of Prozac (TR 119) based on her need to control her

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depression, which belies the statement of “no mood swings”. Monica Hoeft was not

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informed as to the mental condition she was in and did not understand the need to go

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up and down on Prozac dosages and did not understand what “mood swings” mean.

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On a report from Northern Nevada Adult Mental Health (NNAMH), completed

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in September 2002, Claimant reported that she was fired from a fast food job because

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she did not work fast enough and from a deli-worker job because she looked

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“morose.” At that time Monica Hoeft reported that she was applying for disability

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because she could not function in a work environment.

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On September 25th, 2002 psychologist Julius M. Rogina Ph.D., examined

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Claimant Monica Hoeft at the Agency’s request. He found that she had slow speech

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and slow movements. When queried as to how she got there, she said she drove about

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12 mi from Sparks when the actual mileage was 8.89 mi according to Mapquest.

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Claimant does not remember driving there, nor does she remember being interviewed.

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During the mental examination Dr Rogina noticed several items:

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“Her hair appeared unkempt and greasy. Facial expression was blunt

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and motor activity was dystonic and frozen. [Her]...speech was slurred

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and slow with blocking, she did not engage in spontaneous social

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conversation. ...[S]ome indecisiveness was noted. Her verbalizations

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were monotone and retarded. Some mild paranoid ideation was noted.

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She performed tasks accurately but with excessive latency in her

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responses. The severity of her mood disorder makes her prognosis

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guarded.”

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On October 3rd, 2002 Myrna C. Tashner completed forms for the state agency

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and concluded that Monica Hoeft had major depression in partial remission, which

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she had no actual knowledge of and was obviously false because on Oct 21st, 2002

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Claimant was seen by Dr. Yixiang Chen at NNAMH and was prescribed an increase

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in Prozac to 50 mg , certainly not a sign of remission and Valproic Acid for treatment Page 4 of 20

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of Bipolar Disorder ( TR 148). He indicated that she had a flat affect and was mildly

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anxious. He assessed Bipolar disorder and the need to rule out PTSD. The ruling out

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of PTSD never happened within a reasonable time frame (TR 106). Only after a 20

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minute meeting, Dr. Chen made an assessment of a GAF of 70. Claimant Monica

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Hoeft contends this is insufficient time to understand the Claimant’s complete history

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and problems. Myrna C. Tashner was certainly working off of hearsay evidence

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because she never interviewed nor interacted with Monica Hoeft.

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C. Written Statements from Laura Link and Claimant

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On October 17th, 2002, Monica Hoeft completed a disability report ( TR 96-99),

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which was penned by someone else whom Ms. Hoeft does not remember. The written

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statements are consistent in Monica Hoeft’s complaints throughout this litigation and

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that of Dr. Rogina. Those statements are that the Claimant Monica Hoeft stays in bed

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all day when she can, lacks the ability to groom herself, feels fatigued everyday and

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eats maybe one meal a day (TR 98). Then describes her study schedule as being fully

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erratic and dependant upon her mood swings. The narrated statement also describes

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the blackout spells that Monica Hoeft falls down and blacks out and doesn’t know

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what happened until the next day when she finds herself bloody and bruised. ( TR 99

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- continued narration) describes the fact that Monica Hoeft is fully dependant upon

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her mood swings on a daily and/or weekly basis and sometimes can only stay up for

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an hour or so and would like to do things but doesn’t know if she can follow through

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on doing things. Claimant cannot do work because of a disability consisting of

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chronic depression that she knows about.

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On February 9th, 2003, Laura L. Link, identified herself as claimant’s friend.

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This friendship had developed by proxy through her husband and Ms. Link was not

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regarded by the Claimant Monica Hoeft as a friend at the time of the filling out of the

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questionnaire, as Ms. Link would primarily come to visit the Claimant’s husband. Page 5 of 20

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Over the years during this litigation, sometime after the filling out of the

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questionnaire Ms. Link is now viewed as a “friend” since Monica Hoeft, has no one

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else she can talk to regarding her disability outside of the household. Counsel for the

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Social Security Administration, makes a comment in a footnote on Page 10 of their

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response that ...”the form does not explain the basis for the statements regarding

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Claimant’s sleep or personal home care habits.” The basis is quite self-explanatory.

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Ms. Link, a frequent visitor to the household, was there to personally observe and

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inquire about the habits of Monica Hoeft, to Hiawatha Ross, the Husband of the

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Claimant. The inquiries were made out of mere curiosity, to wit: “what is wrong with

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your wife?” and personal observances that the Claimant Monica Hoeft seldom got

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dressed, even for company and rose out of bed and went to bed, during the times that

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Ms. Link was there.

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D. Claimant’s hearing Testimony

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For over half a page, Counsel goes into the schooling of Monica Hoeft and then

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for the next half page goes into her short term employment with an attorney. Then

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counsel goes into her nominal socializing and her reason for her reason from

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departing from her job.

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Counsel does not go into any testimony regarding Monica Hoeft’s medical

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condition that she testified to, her limitations and complaints, which have been

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consistent throughout since the onset of her ailment.

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E. ALJ’s Decision

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The ALJ conducted the five-step sequential disability analysis. And concluded

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that her failed attempts at maintaining work did not constitute Substantial Gainful

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Activity. When a claimant has established that they have a serious impairment that

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prevents her from returning to her past relevant work, courts hold that the burden

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shifts to the Agency to establish that there is other work that a person with such Page 6 of 20

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impairments and the claimants vocational characteristics can perform. Martin on

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Social Security § P 000. Claimant has a major depressive disorder and bipolar

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disorder, and agoraphobia and PTSD (the latter two were properly diagnosed in 2003,

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TR 106), and the ALJ made no inquiries as to any impairments listed in 20 CFR 404,

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Subpt. P, App 1 (the listings, steps two and three) and thus did not make a thorough

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inquiry. By the explicit terms of the statute 42 U.S.C. § 405(b)(1), the ALJ is required

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to discuss the evidence offered in support of Monica Hoeft's claim for disability and

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to explain why he found Claimant not to be disabled at that step. Although the ALJ

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is not always required to do an exhaustive point-by-point discussion, in this case, the

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ALJ offered nothing to support his conclusion at this step. The ALJ did not inquire,

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nor did Monica Hoeft’s attorney at the time, offer up Lay Testimony. In determining

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whether a claimant is disabled: an ALJ must consider lay witness testimony

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concerning a claimant’s ability to work. See Dodrill v. Shalala, 12 F.3d 915, 919 (9th

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Cir. 1993); 20 CFR §§ 404.1513(d)(4) & (e), 416.913(d)(4) & (e). Indeed, “lay

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testimony as to a claimant’s symptoms or how an impairment affects ability to work

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is competent evidence . . . and therefore cannot be disregarded without comment.”

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

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Therefore the ALJ made a decision not based on the full spectrum of facts that

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may come before him, in a properly run tribunal, where the due process rights of the

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claimant Monica Hoeft were not violated. Social Security Ruling SSR 96-6p requires

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that an ALJ or Appeals Council decisions on disability based on medical equivalence

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rest on updated medical expert opinion. The evidence presented to this Court is stale

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and not updated.

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Then Counsel argues that the ALJ used a “special technique” for evaluating

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mental impairments, and the cites the wrong code (20 CFR § 404.1520a) when in fact

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the code is 20 CFR § 416.920a. In this evaluation process, there are requirements that

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the Claimant be put on full notice under the following subsection:

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(e) Documenting application of the technique. At the initial and Page 7 of 20

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reconsideration levels of the administrative review process, we will complete a standard document to record how we applied the technique. At the administrative law judge hearing and Appeals Council levels (in cases in which the Appeals Council issues a decision), and at the Federal reviewing official, administrative law judge, and the Decision Review Board levels in claims adjudicated under the procedures in part 405 of this chapter, we will document application of the technique in the decision.

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No such documentation was made, nor was it mentioned in the findings of fact

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(TR 33, 34) and claimant was not put on notice that this special technique was to be

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used, nor is there any case law that sustains that this technique may be used in place

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of the testimony of a Vocational Expert and/or the Dictionary of Occupational Titles

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in the 9th Circuit. Thus the right of claimant Monica Hoeft was again violated in that

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she was not given full and fair notice that this technique was going to be used, and

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the claim of using a “special technique” should be stricken in that it is raised for the

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first time on Appeal.

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Then counsel goes on to state: [h]e found that the Claimant Monica Hoeft had

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(1) mild restriction in the activities of daily living, (without regard to the claimant’s

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testimony that she was not fully functional due to excessive sleep and was limited

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with sit and stand limitations); (2) moderate difficulties maintaining social

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functioning (when in fact Monica Hoeft was an almost complete shut in that did not

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socialize at all); (3) a mild limitation maintaining concentration, persistence or pace

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( when in fact claimant testified that she could not study for periods longer than 45

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minutes to an hour without an extended break); (4) no extended or repeated episodes

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of decompensation,( when in fact the ALJ had not even inquired into this, and the

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Claimant testified that she was frequently depressed and could not get out of bed

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between her more infrequent manic episodes). The medical definition in Claimant’s

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case is: decompensation: 1. worsening psychiatric condition; 2. failure of defense

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mechanisms resulting in progressive personality disintegration. Claimant was in

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frequent decompensation by being unsociable, plagued by severe sleeping episodes

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and in a chronic depressive state. The ALJ then determined that the Claimant Monica Page 8 of 20

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Hoeft could perform a significant number of other occupations existing in the

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national economy, but did not use the DOT’s or a VE and put the claimant on notice

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as to what jobs she could do, violating her due process right to notice again. In

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reaching this conclusion, the ALJ considered that the unskilled jobs contemplated in

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the guidelines involving working with objects rather than with data or people. RFC

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determines a work capability that is exertionally sufficient to allow performance of

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at least substantially all of the activities of work at a particular level (e.g., sedentary,

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light, or medium), but is also insufficient to allow substantial performance of work

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at greater exertional levels. Sedentary exertional demands are less than light, which

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are, in turn, less than medium (SSR 83-10). Claimant Monica Hoeft is not able to

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work at a maximum sustained level due to her sit/stand limitations which the ALJ did

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not take into consideration. SSR 83-12 states: In some disability claims, the medical

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facts lead to an assessment of RFC which compatible with the performance of either

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sedentary or light work except that the person must alternate periods of sitting and

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standing. The individual may be able to sit for time, but must then get up and stand

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or walk for awhile before returning to sitting. Such an individual is not functionally

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capable of doing either the prolonged sitting contemplated in the definition of

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sedentary work. The ALJ found that the claimant was able to work at all levels of

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exertion according to 204.00 of the guidelines: Considering the range of work at all

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physical levels of exertion that the claimant is still functionally capable of

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performing, in combination with her vocational factors and using 204.00 of the

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medical-vocational guidelines as a framework for decision-making, the claimant is

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not disabled. (Appellant’s opening brief PG 19, TR 33,34). The ALJ did not

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consider the obviously slight build of the Claimant Monica Hoeft, nor did he consider

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the testimony of the claimant that her muscles had atrophied due to her extensive time

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in bed. ( TR 238)nor did he consider the fact that Claimant’s previous job consisted

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of medium lifting, bending and stooping and the ALJ stated that claimant could not

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do her previous work (TR 33, #7) Page 9 of 20

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5.

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STANDARD OF REVIEW

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The Commissioner’s final decision denying benefits must be upheld if it is

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supported by substantial evidence and free of legal error , 42 USC § 405(g) : Batson

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v. Comm’r, 359 F.3d 1190 (9th Cir 2004). Under this standard, the Commissioner’s

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findings are upheld if supported by inferences reasonably drawn from the record, see

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Gallant v. Heckler, 753 F.2d 1450, 1452-53 (9th Cir. 1984).

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If the ALJ determines that the claimant can no longer perform past relevant work, the ALJ at step five must consider whether the claimant can perform other work in the national economy. See 20 C.F.R. § 404.1520(g). If the claimant can perform other work in the national economy, then the claimant may not be found to beth disabled. Id. [emphasis added] Batson v. Comm’r, 359 F.3d 1190 (9 Cir 2004). The ALJ made the finding that despite Monica Hoeft’s severe limitations that she can perform other work in the national economy that does not involve the public, but did not use the Dictionary of Occupational Titles or VE testimony to put the Claimant on proper notice as to which jobs are available to her. If a claimant suffers from a significant non-exertional impairment a decision on the guidelines that she is not disabled is normally not justified. In such a case, the Agency must have vocational expert testimony or similar evidence that there are jobs in the national economy which a person with the full range of the claimant’s impairments, including nonexertional ones, can perform. When a mental or other non-exertional impairment causes a substantial loss in any of these dimensions it justifies a finding of disability despite a contrary indication simply based on the claimant’s age education and work experience. SSR 96-4p stresses that it is not the nature of the individual’s symptoms, themselves that qualify as exertional or non-exertional limitations but rather the functional limitations or restrictions that they produce. Martin on Social Security § P 610. SSR 83-12 notes that unskilled jobs are ordinarily structured so that the worker can sit or stand at will. If medical evidence indicates that the only way an individual

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can get through a full work day is by alternating between sitting and standing at will,

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it follows that the Individual cannot perform the “full range” of sedentary work.

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Martin on Social Security § P 660. If claimant went into an agency looking for a job

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that conforms to her limitations, such as her sit/stand limitations, her need for

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frequent sleep, her two week a month decompensation to where she cannot get out of

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bed and work, then it is guaranteed that no such job can be found for her. Monica

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Hoeft cannot fathom what job she is capable of doing in the national economy. The

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record does not support more than one rational interpretation pursuant to Bayliss

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supra. It supports only one interpretation based on the mental evaluations, and

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testimony of Monica Hoeft, that the severity of her disabilities leaves her

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unemployable.

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6.

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SUMMARY OF ARGUMENT

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Counsel states that “[T]he ALJ analyzed the record and came to the fullysupported conclusion [emphasis added] that despite her impairments, claimant could perform work that did not require frequent contact with the public. Monica Hoeft would like to point out that the conclusion was not fully supported due to the fact that a great amount of the record was hearsay (i.e. Myra Tashner) and that the examining Physician Dr. Chen had only interviewed the claimant once for twenty minutes before filling out his Evaluation (TR 146-148) and that the claimant’s testimony of her subjective complaints were fully ignored, except her attempt at schooling. Counsel then states that [T]he ALJ properly completed the special technique for analyzing mental impairments. As cited on pp 7 of this reply he did no such thing and no case law sustains the use of a “special technique.” He did not find specific cogent reasons that the claimant was not fully credible. Reddick v. Chater, 157 F.3d

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715 ( 9th Cir. 1998) ;citing Andrews v. Shalala, 53 F3d 1035( 9th Cir1995); Rashad

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v. Sullivan, 903 F.2d 1229 (9th Cir 1990). The court emphasized that absent evidence

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of malingering, the Commissioner must provide “clear and convincing” reasons for

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rejecting a claimant’s testimony. The test set out in Cotton v. Bowen, 799F.2d 1403,

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( 9th Cir 1986) imposes two requirements on the Claimant: 1) they must produce

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objective evidence of impairment(s); 2) they must show the impairments could

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reasonably be expected to produce some degree of symptom. Smolen v. Chater, 80

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F.3d 1272 ( 9th Cir 1996) ( finding that the ALJ may not reject subjective testimony

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under the Cotton analysis simply because there is no showing that the impairment can

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reasonably produce the degree of symptom alleged). The ALJ’s reasoning for

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discounting claimants testimony was wholly based on her law schooling and

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interaction with her family, which are both non-transferable skills into the national

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workforce.

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7.

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ARGUMENT

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A.

The ALJ properly assessed Claimant’s mental condition, properly found that she was not fully credible , properly assessed the medical opinions and reasonably determined that she retained the RFC to perform work that did not require frequent public contact.

The ALJ did not properly analyze the evidence and did not beyond a clear and convincing standard (See Reddick supra), that claimant could perform work. He totally discounted her medical impairments and as counsel does, harped on law school. The regulations state that a claimant’s formal education level need not be determinative. A person with a lack of formal education can be shown to have a high level of education, and the reverse is also true. Martin on Social Security § P 640. In claimants case the latter applies. Counsel consistently mentions that Monica Hoeft “attended” school but to attend means “to go to”. Claimant did no such thing. She studied at the mercy of her ailment. She lay in bed during depressive phases and studied during manic phases. No structured schooling would allow her to do that. During the testimony phase, the ALJ did not get into the “B” criteria whatsoever. He

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mentioned nothing about decompensation (which happened on a regular basis) and

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the activities of daily living which are not transferable skills to the workforce.

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Persistence and pace that were again at the mercy of Claimant’s manic and depressive

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phases, which happened on a daily to weekly basis. To reiterate, the ALJ did not

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properly discount the claimant’s credibility to a clear and convincing standard.

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Counsel’s rendition of “attending” law school on a daily basis is fallacious because

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there were plenty of days out of the week/month that claimant could not get out of

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bed and did no studying whatsoever. That is clearly in her testimony. The other

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activities are not transferable to the work force. In all the case law that counsel cites

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such as Burch v. Barnhart, 400 F.3d 676 ( 9th Cir 2005) and Thomas v. Barnhart, 278

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F.3d 948 ( 9th Cir 2002) were subject to VE testimony and properly asked questions.

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Claimant Monica Hoeft had no such benefit (right) nor the right of cross-examination.

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The fact that claimant had testified she had no friends, but Ms. Link who filled

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out the third party report considered her a friend - is a point to be argued. This so-

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called friend was made by proxy and Claimant made no outside effort to procure any

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friends.

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Counsel contends that abilities to attend school events, and occasionally visited with her family, was “substantial evidence.”

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2.

The ALJ properly assessed Claimant’s RFC

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Counsel states that the ALJ properly considered various medical reports

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indicating that claimant’s condition improved with medication, but yet did not

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mention about Claimants constant yo-yoing of medication between 20-40 mgs of

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Prozac, and then on the date that the evaluation was made by Dr. Chen, he increased

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the dosage of Prozac and initiated a dose of Valproic acid. On (date not included)

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(TR 106)Black outs, agoraphobia was diagnosed on or about Jan 2003 and PTSD was

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diagnosed on August 4th, 2003. Claimant’s medications have still not stabilized and

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she has undergone a bevy of medications to try and stabilize her moods and also has Page 13 of 20

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frequently changed Doctors, by no doing of her own, but by mere operation of the

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clinic. The medications only control her mood functions nominally but don’t make

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claimant totally functional. Therefore Counsel’s and the ALJ’s arguments are

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misplaced.

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The ALJ rejected the functioning capacity report of Dr. Zadney because it was

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the claimant’s self reporting. The exact words of Dr. Zadney were “I would have to

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follow you around 24 hrs a day in order to fill this out.” The claimant has no control

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over the lack of will of the psychiatrist to fully execute his functions, and thus the

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report should either be taken as statements under penalty of perjury by the Claimant,

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or should be thrown out completely.

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In Footnote 7 Counsel states that “[T]he court may wish to not that claimant

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was able to write and electronically [emphasis added] file her brief and related

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motions in district court, and she has filed a written brief with this court - practices

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that plainly require more than one or two steps.” [emphasis added]. First of all, It

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took Claimant almost one year with substantial help, and subject to her manic and

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depressive phases, to write the brief and had help finding the appropriate case law on

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a Disability lawyer’s forum on the internet. Claimant had no choice but to write what

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she could since no local attorney would help her. Claimant did not file her brief

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electronically, and it was filed by mail and in that case it was wrong the first time and

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Monica Hoeft got an extension of time to file it right the second time. The court

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waived further procedural defects. Claimant had no idea as to how to file the brief

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and was at the mercy of the Pro Se handbook to write and file the brief.

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3.

The ALJ properly determined that Claimant was not fully credible

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The factors that counsel cites to are precipitating and aggravating factors,

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which Claimant was not queried about; the type dosage and, effectiveness and side-

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effects of any medication, which she was also not questioned about; treatment other

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than medication; functional restriction - which claimant testified extensively about, Page 14 of 20

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which the ALJ rejected, even though it was done under penalty of perjury.

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[T]he ALJ cited the fact that the claimant began a four year law school program

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and was “on target” to finish that program four months before claiming to be mentally

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disabled. Counsel goes on to say that this was clearly a reasonable basis for the for

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the ALJ to find Claimant not credible. The claimant’s intelligence and schooling (not

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vocational) has no bearing on whether or not Claimant has the ability to function in

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a work environment. The mere fact that Monica Hoeft’s schooling was done at home

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was because she could not cope with the rigors of structured classroom education

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belies this. Counsel’s reliance on Mathews v. Shalala, 10 F.3d 678 ( 9th Cir) is

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misplaced because Mathews actually went to a structured vocational school.

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Claimant was never enrolled nor completed a job training course. Counsel constantly

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harps on claimant’s schooling but never addresses the fact that Claimant studied

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erratically and caught up with her schooling during her manic phases, but was still

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encumbered with her sit/stand limitations. Counsel also goes into claimant’s

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activities with her children. The Ninth Circuit has consistently held that disability

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

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their limitations. See, e.g., Cohen, 964 F.2d at 530-31 (ruling that a claimant should

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not be penalized for attempting to maintain some sense of normalcy in her life);

19

Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987)(noting that a disability claimant

20

need not "vegetate in a dark room" in order to be deemed eligible for benefits). See

21

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

22

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

23

might be impossible to periodically rest or take medication." ). The activities that the

24

plaintiff-Appellant did infrequently as far as participating in her children's activities

25

are not transferable to the performance of sedentary job functions. The study of law

26

in a private, non pressure environment as contrasted by a classroom setting is

27

non-transferable, as Plaintiff-Appellant has little experience in working with

28

attorneys and office protocol. The three months that Plaintiff Appellant did work for Page 15 of 20

1

an attorney, although self-rated as well functioning, was in reality substandard and

2

the attorney and Claimant parted ways amicably. This particular incident shows the

3

delusionary contents of Claimant’s mind in achieving some sort of personal greatness,

4

when the situation is actually opposite and the Claimant is actually to a degree

5

incompetent in performing in the legal workforce. In Cohen, the ALJ's finding that

6

Claimant's activities indicate an ability to work is unsupported by the record. The

7

activities [Cohen] described to her doctors, on disability forms, and at her hearing,

8

were fully consistent with CFS. Her activities were sporadic and punctuated with rest.

9

Even more prolonged undertakings might be consistent with the disease, as CFS is

10

"characterized by periods of exacerbation and remission." Cohen v. Secretary of Dept.

11

of Health & Human Servs., 964 F.2d 524, 530 (6th Cir.1992) (describing the episodic

12

nature of CFS). The episodic nature of CFS is comparable to the episodic nature of

13

Bi-polar disorder. Social Security regulations define residual functional capacity as

14

the "maximum degree to which the individual retains the capacity for sustained

15

performance of the physical-mental requirements of jobs." 20 C.F.R. 404, Subpt. P,

16

App. 2 § 200.00(c). In evaluating whether a claimant satisfies the disability criteria,

17

the Commissioner must evaluate the claimant's "ability to work on a sustained basis."

18

20 C.F.R. § 404.1512(a); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996) (internal

19

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

20

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

21

and then determine your residual functional capacity for work activity on a regular

22

and continuing basis." Id. at § 404.1545(b). This court has noted that "[o]ccasional

23

symptom-free periods--and even the sporadic ability to work-are not inconsistent with

24

disability." Lester, 81 F.3d at 833.

25

4.

The ALJ Properly relied on the medical vocational guidelines

26

The ALJ did not properly rely on the medical/guidelines, as the ALJ did not

27

discuss the combined impairments , or compare them to any listing. The ALJ relied

28

on the grids, even though claimant could, only at the maximum be relegated to Page 16 of 20

1

sedentary work given her weight, lifting, stooping and bending capabilities. A

2

Washington Court noted that a finding of equivalency requires the testimony of a

3

Medical Expert. James v. Apfel ,174 F.Supp 2d, 1130( 9th Cir 2001). Claimant is not

4

even capable of sedentary work because in some disability claims, the medical facts

5

lead to an assessment of RFC which compatible with the performance of either

6

sedentary or light work except that the person must alternate periods of sitting and

7

standing. The individual may be able to sit for time, but must then get up and stand

8

or walk for awhile before returning to sitting. Such an individual is not functionally

9

capable of doing either the prolonged sitting contemplated in the definition of

10

sedentary work. (SSR 83-12) Claimant had testified under oath that she had extensive

11

exertional limitation, but the ALJ without basis chose to ignore this and rated her

12

under § 204.00 maximum sustainable work, when is fact Monica Hoeft can barely lift

13

five pounds due to atrophy of the muscles which she testified to. (TR 238).

14 15

B.

Claimants remaining Challenges to the ALJ’s Decision are unpersuasive

16

1.

Claimant fails to demonstrate that she fails to meet a listing

17

Claimant showed the listings under 12.04 and subsections A, B and C which

18

she met. Claimant is not responsible for the poor reporting of her physicians. These

19

are subjective claims that the court cannot disregard under the Cotton test. The ALJ

20

used a boiler-plate finding which is insufficient to support a conclusion that a

21

claimants impairment does not equal a listed impairment. Lewis v. Apfel, 236 F.3d

22

503 ( 9th Cir. 2001) citing Marcia v. Sullivan, 900 F,2d 172 (9th Cir 1990).

23

25

Claimants law school attendance was properly considered in the ALJ’s determination that she was not disabled, and she provides no evidence of disabling physical limitation.

26

Once again - claimant did not “attend” law school. She merely studied at the

27

whim of her ailment at home. Counsel totally misstates the facts that she provides no

28

evidence of disabling physical limitation, and herself, contradicts that in her response.

24

2.

Page 17 of 20

1

She concedes that claimant worked in her manic phase of her Bi-polar ailment.

2

Claimant was able to play catch-up during these phases of mania, as she stayed up for

3

a couple of days, to study, in between her sit/stand limitations and then dropped off

4

into a depressive phase, where her schoolwork was nominal to none on those days.

5

Counsel states that she has not presented sufficient evidence to carry her burden of

6

proving that she is physically incapable of working. The mere nature of bi-polar

7

disorder, the medicine which Claimant takes, works only on an occasional basis, is

8

sufficient to show that her periods of decompensation (i.e. not being able to get out

9

of bed) are not amenable to a working environment which requires the maximum

10

sustainable work. Claimant asserts Restless Leg Syndrome only to a point where it

11

was discovered that the Seroquel was the cause of it, and was promptly taken off of

12

that medication, and prescribed another.

13

The ALJ never concluded that she needed a sit/stand option. This was relayed

14

to her physician who never recorded it. It is not Claimant’s fault that the physician

15

doesn’t record all of her symptomology.

16

The ALJ never explained, how, that despite claimant’s slight build and the

17

atrophying of her muscles that she is capable of doing maximum sustainable work

18

pursuant to § 204.00. Given claimant lifting capabilities, she is at most relegated to

19

sedentary work that allows for her sit/stand limitations and her frequent need for sleep

20

Counsel goes on to state that law school involves mental stress. For the

21

Claimant, it is no more stress on Monica Hoeft than reading a book. Claimant has a

22

natural affinity towards understanding the law and does not find reading law books

23

stressful.

24

In Summary - Counsel argues the same old argument that the ALJ and the

25

district court gave - that just because Monica Hoeft is intelligent enough to aspire to

26

law school, that she is competent to work. This is apples and oranges. A person

27

whose vocational factors of age, education, and work experience would ordinarily be

28

considered favorable (i.e., very young age, university education, and highly skilled Page 18 of 20

1

work experience) would have severely limited occupational base if he or she has a

2

mental impairment which causes a substantial loss of ability to respond appropriately

3

to supervision, coworkers, and usual work situations. A finding of disability would

4

be appropriate. SSR 85-15.

5

The ALJ’s decision is not supported by substantial evidence, to the contrary,

6

his lack of inquiry as to any lay testimony and the A, B and C criteria to section 12.04

7

of Affective Disorders shows that a full and fair inquiry was not made. The lack of

8

Monica Hoeft’s then counsel to properly examine and cross examine was a complete

9

denial of due process. The ALJ’s lack of specifying the use of a “special technique”

10

in his findings of fact, precludes him from raising the issue now, as it has never been

11

in administrative and District Court reviews, and the protocol for following the

12

technique under subsection(e) as listed on pp 7 of this reply was never administered,

13

and as such denying the claimant of a full and fair notice that she must rebutt this

14

“special technique.” The ALJ did not use a Vocational Expert as required by the

15

Ninth Circuit nor the Dictionary of Occupational titles and did not view the Claimants

16

ailments together and the natural flow of decompensation and side-effects thereto.

17

Counsel also ignored the fact that PTSD and agoraphobia and blackouts were

18

diagnosed in 2003 (TR 106).

19

8.

20

CONCLUSION

21

For the forgoing reasons, the Court should instate the Claimant Monica Hoeft’s

22

DIB due to legal error on behalf of the ALJ, or in the alternative, reverse and remand

23

for further proceedings, consistent with the Ninth Circuit opinions and if any, the

24

instructions of this Court.

25 26

Respectfully submitted.

27 28

___________________ Page 19 of 20

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Monica Hoeft

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