1 Monica Hoeft

P.O. Box 6946

2 Reno, NV 89513
(775)544-7486
3
4
UNITED STATES COURT OF APPEALS
5 FOR THE NINTH CIRCUIT
*****
6
7
Monica Hoeft
8 Appellate Case No 07-15651
Plaintiff- Appellant
9 D.C. No. CV-N-05-0375-ECR (VPC)
vs
10 REPLY BRIEF
Michael J. Astrue1
11 Acting Commissioner of
Social Security Administration,
12 Defendant
Defendant - Appellee.
13 _______________________________/
14
1
15
JURISDICTIONAL STATEMENT
16
[F]ederal appellate courts have jurisdiction solely over appeals from "final
17
decisions of the district courts of the United States." 28 U.S.C.1291. A final decision
18
is one that "ends the litigation on the merits and leaves nothing for the court to do but
19
execute the judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945). On appeal,
20
we review de novo the district court’s order upholding a decision of the
21
Commissioner denying benefits to an applicant. Benton v. Barnhart, 331 F.3d 1030,
22
1035 (9th Cir. 2003).A reply brief is due with 14 days of the due date of the response
23
brief. Plaintiff-Appellant Monica Hoeft asked for and received an unopposed
24
extension from opposing Counsel Elizabeth Firer on March 20th, 2008. The filing of
25
the Reply brief was extended to April 17th, 2008.
26
27 1
*Michael J. Astrue is substituted for his predecessor Jo Anne Barnhart as Commissioner of the Social Security
28 Administration. Fed. R. App. P. 43(c)(2).
 1 The Ninth Circuit has consistently held that procedural requirements are more
2 liberally construed for pro-se litigants. Abassi v. I.N.S., 305 F.3d 1028, 1032 (9th Cir
3 2002) citing Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir 1984) (“this circuit has
4 long had a rule of liberal construction of pleadings presented by pro-se litigants”).
5 Points and Authorities incorporated herein.
6 2.
7 ISSUES
8
9 A. Whether the ALJ properly considered the Claimants mental impairment
including properly assessing the medical evidence, Claimant’s residual
10 functioning capacity, credibility and;
11 B. Whether the claimant has presented any basis to over turn the
ALJ’s decision.
12
13 3.
14 STATEMENT OF THE CASE
15 In August 2002 Monica Hoeft protectively filed an application for DIB stating
16 she had become disabled On November 3rd due to severe clinical depression from the
17 loss of her long time and beloved job of 10 years due to the discrimination of her
18 husband in her presence pursuant to Star v. Rabello, 97 Nev. 124, 125, 625 P.2d 90,
19 (1981). As a result of that depression, Monica Hoeft suffered sleep problems, anxiety
20 and blackouts (TR1 45, 50, 53, 56-59). Her application was denied initially and on
21 reconsideration.( TR 45-48, 50-54). Monica Hoeft requested an administrative
22 hearing (TR 55), and on June 15 2004, appeared and testified before the ALJ (TR
23 233-251). Monica Hoeft was poorly represented by an attorney who’s only desire,
24 it appeared, was to take this matter to appeals in the interest of money. In a decision
25 dated August 12th, 2004, the ALJ found that claimant was not disabled within the
26 meaning of the Social Security Act (TR 24-34). The ALJ decision became the final
27
28 1
TR is Appellant’s transcript

Page 2 of 20
 1 decision of the commissioner when the Appeals Council denied the claimant Monica
2 Hoeft’s request for review (TR 13-15).
3 Monica Hoeft sought judicial review pursuant to 42 USC § 405(g). The parties
4 filed cross-motions for summary judgement (Opposing Counsel’s Record - CR2
5 21,25; SER3 254). On Feb 1, 2007, the Magistrate Judge issued a Ruling siding with
6 the Commissioner’s cross motion for Summary Judgement. Monica Hoeft filed
7 objections and the Commissioner responded. On March 13th, 2007 the District Court
8 adopted the commissioners findings and entered judgement, upholding the
9 Commissioner’s findings. Claimant filed a notice of appeal on April 9th, 2007
10 (Opposing Counsel’s Record CR 35; SER 255, 281-289).
11 4.
12 STATEMENT OF FACTS
13
14 A. Vocational Profile
15 Claimant Monica Hoeft is now an individual approaching Advanced Age.
16 Note: Since Moving from one age category to another can change the guidelines’
17 directed decision from “not disabled” to “disabled”, the mere delay in processing as
18 appeal can...change its outcome. Martin on Social Security § P 630. Claimants
19 Associate Degree and law school course work constitutes education beyond High
20 school and past relevant work experience as a sales clerk in a fabric store and a deli-
21 worker.
22
23 B. Medical Evidence
24 Monica Hoeft was treated at Health Access Washoe Clinic from November
25 2000 to January 2002 for complaints of depression and general health issues. She yo-
26
27 2
Cr denotes the Opposing Counsel’s Clerk Record
28 3
SER denotes the Opposing Counsel’s Supplemental Excerpts of the Record

Page 3 of 20
 1 yoed between 20 and 40 mgs of Prozac (TR 119) based on her need to control her
2 depression, which belies the statement of “no mood swings”. Monica Hoeft was not
3 informed as to the mental condition she was in and did not understand the need to go
4 up and down on Prozac dosages and did not understand what “mood swings” mean.
5 On a report from Northern Nevada Adult Mental Health (NNAMH), completed
6 in September 2002, Claimant reported that she was fired from a fast food job because
7 she did not work fast enough and from a deli-worker job because she looked
8 “morose.” At that time Monica Hoeft reported that she was applying for disability
9 because she could not function in a work environment.
10 On September 25th, 2002 psychologist Julius M. Rogina Ph.D., examined
11 Claimant Monica Hoeft at the Agency’s request. He found that she had slow speech
12 and slow movements. When queried as to how she got there, she said she drove about
13 12 mi from Sparks when the actual mileage was 8.89 mi according to Mapquest.
14 Claimant does not remember driving there, nor does she remember being interviewed.
15 During the mental examination Dr Rogina noticed several items:
16 “Her hair appeared unkempt and greasy. Facial expression was blunt
17 and motor activity was dystonic and frozen. [Her]...speech was slurred
18 and slow with blocking, she did not engage in spontaneous social
19 conversation. ...[S]ome indecisiveness was noted. Her verbalizations
20 were monotone and retarded. Some mild paranoid ideation was noted.
21 She performed tasks accurately but with excessive latency in her
22 responses. The severity of her mood disorder makes her prognosis
23 guarded.”
24 On October 3rd, 2002 Myrna C. Tashner completed forms for the state agency
25 and concluded that Monica Hoeft had major depression in partial remission, which
26 she had no actual knowledge of and was obviously false because on Oct 21st, 2002
27 Claimant was seen by Dr. Yixiang Chen at NNAMH and was prescribed an increase
28 in Prozac to 50 mg , certainly not a sign of remission and Valproic Acid for treatment
Page 4 of 20
 1 of Bipolar Disorder ( TR 148). He indicated that she had a flat affect and was mildly
2 anxious. He assessed Bipolar disorder and the need to rule out PTSD. The ruling out
3 of PTSD never happened within a reasonable time frame (TR 106). Only after a 20
4 minute meeting, Dr. Chen made an assessment of a GAF of 70. Claimant Monica
5 Hoeft contends this is insufficient time to understand the Claimant’s complete history
6 and problems. Myrna C. Tashner was certainly working off of hearsay evidence
7 because she never interviewed nor interacted with Monica Hoeft.
8
9 C. Written Statements from Laura Link and Claimant
10 On October 17th, 2002, Monica Hoeft completed a disability report ( TR 96-99),
11 which was penned by someone else whom Ms. Hoeft does not remember. The written
12 statements are consistent in Monica Hoeft’s complaints throughout this litigation and
13 that of Dr. Rogina. Those statements are that the Claimant Monica Hoeft stays in bed
14 all day when she can, lacks the ability to groom herself, feels fatigued everyday and
15 eats maybe one meal a day (TR 98). Then describes her study schedule as being fully
16 erratic and dependant upon her mood swings. The narrated statement also describes
17 the blackout spells that Monica Hoeft falls down and blacks out and doesn’t know
18 what happened until the next day when she finds herself bloody and bruised. ( TR 99
19 - continued narration) describes the fact that Monica Hoeft is fully dependant upon
20 her mood swings on a daily and/or weekly basis and sometimes can only stay up for
21 an hour or so and would like to do things but doesn’t know if she can follow through
22 on doing things. Claimant cannot do work because of a disability consisting of
23 chronic depression that she knows about.
24 On February 9th, 2003, Laura L. Link, identified herself as claimant’s friend.
25
26 This friendship had developed by proxy through her husband and Ms. Link was not
27 regarded by the Claimant Monica Hoeft as a friend at the time of the filling out of the
28 questionnaire, as Ms. Link would primarily come to visit the Claimant’s husband.
Page 5 of 20
 1 Over the years during this litigation, sometime after the filling out of the
2 questionnaire Ms. Link is now viewed as a “friend” since Monica Hoeft, has no one
3 else she can talk to regarding her disability outside of the household. Counsel for the
4 Social Security Administration, makes a comment in a footnote on Page 10 of their
5 response that ...”the form does not explain the basis for the statements regarding
6 Claimant’s sleep or personal home care habits.” The basis is quite self-explanatory.
7 Ms. Link, a frequent visitor to the household, was there to personally observe and
8 inquire about the habits of Monica Hoeft, to Hiawatha Ross, the Husband of the
9 Claimant. The inquiries were made out of mere curiosity, to wit: “what is wrong with
10 your wife?” and personal observances that the Claimant Monica Hoeft seldom got
11 dressed, even for company and rose out of bed and went to bed, during the times that
12 Ms. Link was there.
13
14 D. Claimant’s hearing Testimony
15 For over half a page, Counsel goes into the schooling of Monica Hoeft and then
16 for the next half page goes into her short term employment with an attorney. Then
17 counsel goes into her nominal socializing and her reason for her reason from
18 departing from her job.
19 Counsel does not go into any testimony regarding Monica Hoeft’s medical
20 condition that she testified to, her limitations and complaints, which have been
21 consistent throughout since the onset of her ailment.
22
23 E. ALJ’s Decision
24 The ALJ conducted the five-step sequential disability analysis. And concluded
25 that her failed attempts at maintaining work did not constitute Substantial Gainful
26 Activity. When a claimant has established that they have a serious impairment that
27 prevents her from returning to her past relevant work, courts hold that the burden
28 shifts to the Agency to establish that there is other work that a person with such
Page 6 of 20
 1 impairments and the claimants vocational characteristics can perform. Martin on
2 Social Security § P 000. Claimant has a major depressive disorder and bipolar
3 disorder, and agoraphobia and PTSD (the latter two were properly diagnosed in 2003,
4 TR 106), and the ALJ made no inquiries as to any impairments listed in 20 CFR 404,
5 Subpt. P, App 1 (the listings, steps two and three) and thus did not make a thorough
6 inquiry. By the explicit terms of the statute 42 U.S.C. § 405(b)(1), the ALJ is required
7 to discuss the evidence offered in support of Monica Hoeft's claim for disability and
8 to explain why he found Claimant not to be disabled at that step. Although the ALJ
9 is not always required to do an exhaustive point-by-point discussion, in this case, the
10 ALJ offered nothing to support his conclusion at this step. The ALJ did not inquire,
11 nor did Monica Hoeft’s attorney at the time, offer up Lay Testimony. In determining
12 whether a claimant is disabled: an ALJ must consider lay witness testimony
13 concerning a claimant’s ability to work. See Dodrill v. Shalala, 12 F.3d 915, 919 (9th
14 Cir. 1993); 20 CFR §§ 404.1513(d)(4) & (e), 416.913(d)(4) & (e). Indeed, “lay
15 testimony as to a claimant’s symptoms or how an impairment affects ability to work
16 is competent evidence . . . and therefore cannot be disregarded without comment.”
17 Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996).
18 Therefore the ALJ made a decision not based on the full spectrum of facts that
19 may come before him, in a properly run tribunal, where the due process rights of the
20 claimant Monica Hoeft were not violated. Social Security Ruling SSR 96-6p requires
21 that an ALJ or Appeals Council decisions on disability based on medical equivalence
22 rest on updated medical expert opinion. The evidence presented to this Court is stale
23 and not updated.
24 Then Counsel argues that the ALJ used a “special technique” for evaluating
25 mental impairments, and the cites the wrong code (20 CFR § 404.1520a) when in fact
26 the code is 20 CFR § 416.920a. In this evaluation process, there are requirements that
27 the Claimant be put on full notice under the following subsection:
28 (e) Documenting application of the technique. At the initial and
Page 7 of 20
 1 reconsideration levels of the administrative review process, we will
complete a standard document to record how we applied the technique.
2 At the administrative law judge hearing and Appeals Council levels (in
cases in which the Appeals Council issues a decision), and at the Federal
3 reviewing official, administrative law judge, and the Decision Review
Board levels in claims adjudicated under the procedures in part 405 of
4 this chapter, we will document application of the technique in the
decision.
5
6 No such documentation was made, nor was it mentioned in the findings of fact
7 (TR 33, 34) and claimant was not put on notice that this special technique was to be
8 used, nor is there any case law that sustains that this technique may be used in place
9 of the testimony of a Vocational Expert and/or the Dictionary of Occupational Titles
10 in the 9th Circuit. Thus the right of claimant Monica Hoeft was again violated in that
11 she was not given full and fair notice that this technique was going to be used, and
12 the claim of using a “special technique” should be stricken in that it is raised for the
13 first time on Appeal.
14 Then counsel goes on to state: [h]e found that the Claimant Monica Hoeft had
15 (1) mild restriction in the activities of daily living, (without regard to the claimant’s
16 testimony that she was not fully functional due to excessive sleep and was limited
17 with sit and stand limitations); (2) moderate difficulties maintaining social
18 functioning (when in fact Monica Hoeft was an almost complete shut in that did not
19 socialize at all); (3) a mild limitation maintaining concentration, persistence or pace
20 ( when in fact claimant testified that she could not study for periods longer than 45
21 minutes to an hour without an extended break); (4) no extended or repeated episodes
22 of decompensation,( when in fact the ALJ had not even inquired into this, and the
23 Claimant testified that she was frequently depressed and could not get out of bed
24 between her more infrequent manic episodes). The medical definition in Claimant’s
25 case is: decompensation: 1. worsening psychiatric condition; 2. failure of defense
26 mechanisms resulting in progressive personality disintegration. Claimant was in
27 frequent decompensation by being unsociable, plagued by severe sleeping episodes
28 and in a chronic depressive state. The ALJ then determined that the Claimant Monica
Page 8 of 20
 1 Hoeft could perform a significant number of other occupations existing in the
2 national economy, but did not use the DOT’s or a VE and put the claimant on notice
3 as to what jobs she could do, violating her due process right to notice again. In
4 reaching this conclusion, the ALJ considered that the unskilled jobs contemplated in
5 the guidelines involving working with objects rather than with data or people. RFC
6 determines a work capability that is exertionally sufficient to allow performance of
7 at least substantially all of the activities of work at a particular level (e.g., sedentary,
8 light, or medium), but is also insufficient to allow substantial performance of work
9 at greater exertional levels. Sedentary exertional demands are less than light, which
10 are, in turn, less than medium (SSR 83-10). Claimant Monica Hoeft is not able to
11 work at a maximum sustained level due to her sit/stand limitations which the ALJ did
12 not take into consideration. SSR 83-12 states: In some disability claims, the medical
13 facts lead to an assessment of RFC which compatible with the performance of either
14 sedentary or light work except that the person must alternate periods of sitting and
15 standing. The individual may be able to sit for time, but must then get up and stand
16 or walk for awhile before returning to sitting. Such an individual is not functionally
17 capable of doing either the prolonged sitting contemplated in the definition of
18 sedentary work. The ALJ found that the claimant was able to work at all levels of
19 exertion according to 204.00 of the guidelines: Considering the range of work at all
20 physical levels of exertion that the claimant is still functionally capable of
21 performing, in combination with her vocational factors and using 204.00 of the
22 medical-vocational guidelines as a framework for decision-making, the claimant is
23 not disabled. (Appellant’s opening brief PG 19, TR 33,34). The ALJ did not
24 consider the obviously slight build of the Claimant Monica Hoeft, nor did he consider
25 the testimony of the claimant that her muscles had atrophied due to her extensive time
26 in bed. ( TR 238)nor did he consider the fact that Claimant’s previous job consisted
27 of medium lifting, bending and stooping and the ALJ stated that claimant could not
28 do her previous work (TR 33, #7)
Page 9 of 20
 1 5.

2 STANDARD OF REVIEW

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

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

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

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

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

8
If the ALJ determines that the claimant can no longer perform past
9 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. §
10 404.1520(g). If the claimant can perform other work in the national
economy, then the claimant may not be found to beth disabled. Id.
11 [emphasis added] Batson v. Comm’r, 359 F.3d 1190 (9 Cir 2004).

12
The ALJ made the finding that despite Monica Hoeft’s severe limitations that she can
13
perform other work in the national economy that does not involve the public, but did
14
not use the Dictionary of Occupational Titles or VE testimony to put the Claimant on
15
proper notice as to which jobs are available to her. If a claimant suffers from a
16
significant non-exertional impairment a decision on the guidelines that she is not
17
disabled is normally not justified. In such a case, the Agency must have vocational
18
expert testimony or similar evidence that there are jobs in the national economy
19
which a person with the full range of the claimant’s impairments, including non-
20
exertional ones, can perform. When a mental or other non-exertional impairment
21
causes a substantial loss in any of these dimensions it justifies a finding of disability
22
despite a contrary indication simply based on the claimant’s age education and work
23
experience. SSR 96-4p stresses that it is not the nature of the individual’s symptoms,
24
themselves that qualify as exertional or non-exertional limitations but rather the
25
functional limitations or restrictions that they produce. Martin on Social Security §
26
P 610. SSR 83-12 notes that unskilled jobs are ordinarily structured so that the worker
27
can sit or stand at will. If medical evidence indicates that the only way an individual
28

Page 10 of 20
 1 can get through a full work day is by alternating between sitting and standing at will,

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

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

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

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

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

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

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

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

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

11 unemployable.

12 6.

13 SUMMARY OF ARGUMENT

14
Counsel states that “[T]he ALJ analyzed the record and came to the fully-
15
supported conclusion [emphasis added] that despite her impairments, claimant could
16
perform work that did not require frequent contact with the public. Monica Hoeft
17
would like to point out that the conclusion was not fully supported due to the fact that
18
a great amount of the record was hearsay (i.e. Myra Tashner) and that the examining
19
Physician Dr. Chen had only interviewed the claimant once for twenty minutes before
20
filling out his Evaluation (TR 146-148) and that the claimant’s testimony of her
21
subjective complaints were fully ignored, except her attempt at schooling.
22
Counsel then states that [T]he ALJ properly completed the special technique
23
for analyzing mental impairments. As cited on pp 7 of this reply he did no such thing
24
and no case law sustains the use of a “special technique.” He did not find specific
25
cogent reasons that the claimant was not fully credible. Reddick v. Chater, 157 F.3d
26
715 ( 9th Cir. 1998) ;citing Andrews v. Shalala, 53 F3d 1035( 9th Cir1995); Rashad
27
v. Sullivan, 903 F.2d 1229 (9th Cir 1990). The court emphasized that absent evidence
28

Page 11 of 20
 1 of malingering, the Commissioner must provide “clear and convincing” reasons for

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

3 ( 9th Cir 1986) imposes two requirements on the Claimant: 1) they must produce

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

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

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

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

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

9 discounting claimants testimony was wholly based on her law schooling and

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

11 workforce.

12 7.

13 ARGUMENT

14
A. The ALJ properly assessed Claimant’s mental condition, properly found
15 that she was not fully credible , properly assessed the medical opinions
and reasonably determined that she retained the RFC to perform work
16 that did not require frequent public contact.

17
The ALJ did not properly analyze the evidence and did not beyond a clear and
18
convincing standard (See Reddick supra), that claimant could perform work. He
19
totally discounted her medical impairments and as counsel does, harped on law
20
school. The regulations state that a claimant’s formal education level need not be
21
determinative. A person with a lack of formal education can be shown to have a high
22
level of education, and the reverse is also true. Martin on Social Security § P 640. In
23
claimants case the latter applies. Counsel consistently mentions that Monica Hoeft
24
“attended” school but to attend means “to go to”. Claimant did no such thing. She
25
studied at the mercy of her ailment. She lay in bed during depressive phases and
26
studied during manic phases. No structured schooling would allow her to do that.
27
During the testimony phase, the ALJ did not get into the “B” criteria whatsoever. He
28

Page 12 of 20
 1 mentioned nothing about decompensation (which happened on a regular basis) and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

16 friends.

17 Counsel contends that abilities to attend school events, and occasionally visited

18 with her family, was “substantial evidence.”

19
20 2. The ALJ properly assessed Claimant’s RFC

21 Counsel states that the ALJ properly considered various medical reports

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

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

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

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

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

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

28 she has undergone a bevy of medications to try and stabilize her moods and also has

Page 13 of 20
 1 frequently changed Doctors, by no doing of her own, but by mere operation of the

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

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

4 misplaced.

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

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

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

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

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

10 or should be thrown out completely.

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

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

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

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

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

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

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

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

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

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

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

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

23
24 3. The ALJ properly determined that Claimant was not fully credible

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

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

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

28 than medication; functional restriction - which claimant testified extensively about,

Page 14 of 20
 1 which the ALJ rejected, even though it was done under penalty of perjury.

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

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

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

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

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

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

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

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

10 misplaced because Mathews actually went to a structured vocational school.

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

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

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

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

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

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

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

18 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

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 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
24 2. Claimants law school attendance was properly considered in the ALJ’s
determination that she was not disabled, and she provides no evidence
25 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.

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 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

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 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 ___________________

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