STATEMENT REQUIRED BY FRAP 35(b)(1)AND 9th Cir RULE 35-1

Claimant Monica Hoeft in pro se hereby requests a Petition for Rehearing En

Banc in the decision in the case of Hoeft v. Astrue, 07-15651, because it conflicts
with a decision of the United States Supreme Court and rulings of the Ninth
Circuit and consideration by the full court is therefore necessary to secure and
maintain uniformity of the court's decisions. When the opinion of a panel directly
conflicts with an existing opinion by another [emphasis added] court of
appeals and substantially affects a rule of national application in which there is an
overriding need for national uniformity, the existence of such conflict is an
appropriate ground for suggesting a rehearing en banc.

FACTS
Claimant was emotionally injured when the store she worked in overtly
discriminated against her husband, who is black, by not serving him. Claimant
quit that job due to conflicts and received unemployment after six (6) months of
hearings. Claimant tried to find work from October of 2000 to February of 2001
due to her agreement for benefits from the unemployment office. Claimant was
turned down by several prospective employers that felt that Claimant was “too
slow.” On November 3rd , 2000 to January 28th, 2002 (TR. at 112 to 119)
Claimant was treated at the HAWC Clinic and was diagnosed with depression and
given 20 mgs of Prozac to start out to see if it would work.
At various times throughout the treatment Claimant experienced severe
levels of decompensation. The Prozac was increased to 40 mgs to aid in this. The

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frequent decompensation of the Claimant rendered the HAWC Clinic relatively
helpless because the physicians were not specialists in mental disorders. Health
Access Washoe County (HAWC) was unable to help the Claimant anymore and
referred the Claimant to Nevada Adult Mental Health.
A disability report (Adult) was filed on August 26th , 2002. Claimant
Claimed severe depression, anxiety, sleep problems, unable to work with
enthusiasm, tired, unable to work an 8-5 job, unable to stay awake for any
extended periods of time due to depression, the inability to think straight, anxiety
and blackout spells. (TR.69 – 78). An Application for DIB was filed August 27th
2002, citing severe clinical depression as reason for inability to work. (TR. at 56-
59). On September 7th 2002. Also on September 22nd , 2002, Claimant filed a
Work Activity Report, stating that Claimant was fired due to lack of enthusiasm,
and that prior to Depression, Claimant was gainfully employed. (TR.64 and at 79-
86). On September 25th, 2002 Claimant was examined by the Social Security
Doctor, Dr. Julius Rogina, and was rated at a GAF of 45 which rated the
Claimant’s condition as “guarded.” (TR. at 120-125). Claimant’s initial
determination was rejected October 3rd , 2002 (TR. at 40, 41) which was
submitted to Dennis Cameron, Claimants former attorney. It was determined that
Claimant was not restricted to any work based on Medical impairments 12.00 et
seq. (TR. at 171-184). On October 7th , 2002, a Social Security Notice was sent
(TR .at 45-48). A reconsideration Disability Report was filed on October 17th,
2002. (TR. at 96-101). On October 18th , 2002 , a request for reconsideration was
filed (TR at 49). On June 20th , 2003 a Medical/vocational decision guide was

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submitted claiming that the Claimant was not disabled. On July 23rd, 2003 a notice
of reconsideration was sent, denying DIB (TR at 50-54). On August 6th, 2003 a
request for hearing was filed (TR at 55). An undated Claimants statement was
submitted when request for hearing was filed and the issue was disability. (TR.
at 106-107). Claimants list of medications was Queitapine NIPD 400 mg up to
600mg for mood stabilization; Seroquel 40 mg for psychosis; Prozac 60 mg for
depression; Trazodone 200-300 mg for sleep; Carbamazepine 400mg for mood
disorders; Wellbutrine 300mgs for lessening of sexual side effects. (TR at 111).
The final decision was rendered on March 25th, 2003 (TR. at 4). The appeals
counsel denied Claimant’s request for reconsideration on March 25th, 2003 (TR at
4) therefore, administrative action is final in this case.
Claimant asked for and received an extension of time on May 9th 2005 to
file with the Federal Court. Claimant fired her attorney on April 20th , 2005 due
to incompetence. Claimant filed another extension of time up to and including
March 10th , 2006 due to medical conditions. Claimant filed a timely
Security Act, 42 U.S.C. SS 401 et seq., alleging that she had been unable to work
since on or about November of 2000 due to Mental Disease to present. Claimant's
application was denied initially and upon reconsideration by the ALJ. The ALJ's
decision became the final decision of the Commissioner when the Appeals
Council declined review. Claimant filed a timely complaint for review by the
federal district court. Claimant asked for and received an extension of time up to
and including March 10th , 2006. Claimant was under the impression that no reply
brief was allowed, but was notified by the court that an extension was granted to

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her to file an appeal brief until June 28th 2006. Claimant file a timely reply on
June 28th , 2006. The District Court Magistrate filed a Report and
Recommendation of the U.S. Magistrate Judge on February 1, 2007. Claimant
filed another extension of time due to illness on February 28th , 2007 and motion
was granted. Claimant filed a timely objection to the Magistrates Report on March
12th 2007. On or about June, 2007, the District Court adopted the magistrates
findings (Doc 33) making the decision of the Court final.
Claimant filed a timely appeal. On June 18th , 2007 Claimant motioned the
Appeals court for Appointment of counsel due to her mental disability but was
denied. Claimant was denied her appeal for disability benefits on July 7th , 2008.
Claimant Hoeft was found not disabled at Step 5 of the sequential evaluation and
was found to be able to work under all levels of exertion pursuant to the medical-
vocational rule 204.00.

ARGUMENT
Hoeft presents herself with non-exertional limitations as medically
documented; major depressive disorder, bipolar disorder, PTSD, mild
paranoia, anxiety, panic disorder, sit/stand issues, and agoraphobia.
1.
HECKLER v. CAMPBELL 461 U.S. 458
Non-Exertional Limitations and the Requirement of a Vocational Expert
According to the prevailing case law of Heckler v. Campbell, 461 U.S. 458,
non-exertional limitations are not contemplated by the grids and a Vocational

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expert must be used in determining jobs that are available in the national economy
given the claimants non-exertional limitations. Hoeft presented herself
with non-exertional limitations that were found to be severe and was not
given the right to have a vocational expert testify at the hearings,
instead the ALJ took on that function and simply stated that Hoeft can perform
jobs in the national economy, and was found not disabled pursuant to the grids.
Following CFR § 404.1569a(c), some of the non-exertional
limitations are as follows:
(i) You have difficulty functioning because you are nervous, anxious or depressed;
(ii) You have difficulty maintaining attention or concentrating;
(iii) You have difficulty understanding or remembering detailed instructions;
(iv) You have difficulty seeing or hearing;
(v) You have difficulty tolerating some physical features of certain work settings,
e.g., you cannot tolerate dust or fumes; or
(vi) You have difficulty performing the manipulative or postural functions of some
work such as reaching, handling, stooping, climbing, crawling or couching. A
non-exertional impairment is an impairment “that limits [the claimant’s] ability
without directly affecting his [] strength.” Desrosiers v. Secretary of Health and
Human Services, 846 F.2d at 573. Bruton v. Massanari, 268 F.3d 824 (9th Cir.
2001). Before relying on the grids, an ALJ must determine whether the claimant's
non-exertional limitations which are supported by evidence in the record take the
claimant outside the grids. Stewartv. Sullivan, 881 F.2d 740, 744 n.5 (9th Cir
1989); see Heckler v. Campbell, 461 US 458, 467-68, 103 S.Ct.1952, 76 L.Ed. 2d
66(1983) as cited in McDaniels v. Callahan, 113 F.3d 1241 (9th Cir 1997). The
ALJ did not make a finding regarding claimant Hoeft's non-exertional

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limitations, to which she testified to.
The ALJ rejected Hoeft's non-exertional limitations, solely because she was
attempting to complete an on-line law school that enabled her to work around her
disabilities (see transcript). The ALJ did not take into consideration the fact that
Hoeft could work around her disabilities and sit/stand limitations. He made
no such determinations and as such the ALJ should determine, by calling a
Vocational Expert, whether Hoeft’s limitations prevent her from working.
McDaniels v. Callahan, 113 F.3d 1241 (9th Cir 1997). The ALJ may only rely on
the grids in determining whether a disabled claimant can do substantial gainful
employment if the grids accurately describe the claimant's abilities and
limitations. Heckler v. Campbell, 461 US 458, 462 n.5 supra. If the grids fail to
accurately describe the claimants particular limitations, the secretary may not rely
on them alone to show the availability of jobs for the claimant. Gallant v.
Heckler, 753 F2d 1450, at1456-57 (9th Cir 1984); Stone v. Heckler, 722 F2d 464,
468 (9th cir 1983); Fife v. Heckler, 767 F2d 1427 (9th Cir1985).

2.
The ALJ made the following findings under the five-step process;
1. The Claimant has not engaged in any substantial gainful activity since the
alleged onset of her disability.
2. The claimants major depressive disorder are considered “severe” based
on the requirements in the regulations of 20 CFR § 404.1520(c).
3. These medically determinable impairments do meet or medically equal
one of the listed impairments in Appendix 1, Subpart P, Regulation No.
4.
4. The claimant is unable to perform any of her last relevant work (20 CFR
§ 404.1563)
5. The claimant retains all the residual functional capacity to perform, on a
regular basis, work at all levels of that does not involve frequent
interaction with the public.

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 I
The Claimant has not engaged in any substantial gainful activity since the
alleged onset of her disability.
Under the Social Security Act, a claimant is entitled to disability benefits if
she is unable "to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to ...
last for a continuous period of not less than twelve months." 42 U.S.C. Sec.
423(d)(1)(A).
II
The claimants major depressive disorder are considered “severe” based on
the requirements in the regulations of 20 CFR § 404.1520(c).
ALJ is required to seek the assistance of a vocational expert when the non-
exertional limitations are at a sufficient level of severity such as to make the grids
inapplicable to the particular case. Hoopai v Astrue, 499 F.3d 1071 (9th Cir.
2007). The non-exertional limitations of Hoeft were found to be “severe” pursuant
to 20 CFR § 404.1520(c), and therefore require VE testimony. No such testimony
was made available to claimant.
III
These medically determinable impairments do meet or medically equal one of
the listed impairments in Appendix 1, Subpart P, Regulation No. 4.
The ALJ did not identify the listed impairments for which Claimant’s
symptoms failed to qualify, nor did he provided any explanation as to how
he reached the conclusion that claimant’s symptoms are insufficiently severe
to meet any listed impairment. “Such a bare conclusion is beyond meaningful

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judicial review.” Clifton v. Chater, 79 F3d 1007 (10th Cir 1996), Audler v. Astrue,
501 F3d 446 (5th Cir 2007).
IV
The claimant is unable to perform any of her last relevant work (20 CFR
§ 404.1563)
The ALJ stated that she was able to perform the full range of work as described
by the medical-vocational guidelines 204.00 which includes heavy work. Claimant
Hoeft also testified that she was not capable of doing any heavy work due to
the atrophying of her muscles from spending a substantial amount of time in
bed due to her ailment. Her previous work consisted of only light to medium
work. She was found not to be able to her past relevant work but yet the claimant
weighs only about 115 pounds and has no strength as testified to, which was
completely disregarded by the ALJ. The ALJ gave no reason as to why he
disregarded this testimony and the case shall be further remanded to properly
evaluate Hoeft’s claim. Smith v.Bowen, 837 F2d 635 (4th Cir 1987).
V
The claimant retains all the residual functional capacity to perform, on a
regular basis, work at all levels of that does not involve frequent interaction
with the public.
Because Hoeft is unable to interact with the public due to her severe
impairments that is grounds for the need of a vocational expert see Jenkins
v. Astrue 1:06-cv-0707-DFH-TAB. Infrequent contact with the public is
considered a non-exertional impairment not contemplated by the grids.
3.

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 The Fifth Step Inquiry
The inquiry therefore must proceed to the fifth step, in which the Secretary
has the burden of showing that the claimant is capable of performing gainful work.
Id. Secs. 404.1520(f), 416.920(f). At step five of the five-step sequential inquiry,
the commissioner bears the burden of proving that the claimant can perform “other
jobs that exist in substantial number in the national economy.” Lewis v. Apfel,
236 F.3d 503, 508 (9th Cir 2001); 20 CFR § 416.920(f). There are two ways for
the commissioner to meet this burden (1) by the testimony of a vocational expert or
(2) by reference to the grids. Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir
1999).
In this case the commissioner attempted to satisfy his burden by applying the
grids. Bruton v. Massanari, 268 F.3d 824 (9th Cir. 2001) n.1. The Secretary
promulgated the grids to aid in the fifth stage of the procedure. The 9th Cir
has held that “[t]he Commissioner’s need for efficiency justifies the use of the
grids at step five” but only when the grids “completely and accurately represent a
claimant’s limitations” Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir 1999)
(emphasis in original). “In other words, claimant must be able to perform the full
range of jobs in a given category” in order for the Commissioner to appropriately
rely on the grids. Bruton v. Massanari, 268 F.3d 824 (9th Cir. 2001). Bruton also
held that “significant non-exertional impairments…may make reliance on the grids
inappropriate.” Id. at 1101-02 ( citing Desrosiers v. Sect’y of Health & Human
Services, 846 F.2d 573, 577(9th Cir 1988).
The grids specify whether a significant number of jobs in the national

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economy exist for a claimant of a given age, education, work experience, and
residual functional capacity ( that is, functional level of work that the claimant
can physically perform on a sustained basis). In Heckler v. Campbell, 461 U.S.
458, 467-68, 103 S.Ct. 1952, 1957-58, 76 L.Ed.2d 66 (1983), the Supreme Court
Upheld the use of the grids in appropriate circumstances. However, the Court
cautioned that the grids apply "only when they describe a claimant's abilities and
limitations accurately." Id. at 462 n. 5, 103 S.Ct. at 1955 n. 5. "If an individual's
capabilities are not described accurately by a rule [in the grids], the regulations
make clear that the individual's particular limitations Must be considered." Id.
To the extent that the claimant's non-exertional limitations reduce
her ability to perform jobs of which she is exertionally capable, the Secretary may
not rely solely on the grids. Channel v. Heckler, 747 F.2d 577, 581 (10th
Cir. 1984) (per curiam); Smith v. Schweiker, 719 F.2d 723,725 (4th Cir.1984);
Gagnon v. Secretary of Health and Human Services, 666 F.2d 662, 666 (1st
Cir.1981). "[F]ull consideration must be given to all of the relevant facts." Id.
When the claimant's non-exertional limitations require that the grids be used only
as a "framework," the Secretary must introduce expert vocational testimony or
other evidence to prove that a significant number of jobs are available for the
claimant. Burgos Lopez v. Secretary of Health and Human Services, 747 F.2d 37,
42 (1st Cir.1984); Channel, 747 F.2d at 583; Dellolio v. Heckler, 705 F.2d 123,
128 (5th Cir.1983); Nicks v. Schweiker, 696 F.2d 633, 636 (8th Cir.1983); Smith
v. Bowen, 826 F2d 1120 (D.C. 1987). A vocational expert is required only when
there are significant and "sufficiently severe" non-exertional limitations not

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accounted for in the grids. Thus the ALJ's conclusion that Hoeft's non-
exertional impairments were not significant and did not significantly reduce
her capacity for the full range of heavy work was unsupported by substantial
evidence. The Supreme Court held in Heckler v. Campbell, 461 U.S. 458, 103
S.Ct. 1952, 76 L.Ed.2d 66 (1983), that the Secretary may use the grids to
determine whether jobs exist in the national economy that a person with the
claimant's qualifications and limitations could perform. In order to show that a
claimant is able to engage in alternative gainful employment, however, the
Secretary must first show that a claimant's vocational profile is precisely contained
within the guidelines established for e ach rule of the grid. See Santise v.
Schweiker, 676 F.2d 925 (3d Cir.1982); 20 C.F.R. Part 404, Appendix 2, Sec.
200.00(d). The grids will be of limited help when a "claimant suffers from non-
exertional, instead of or in addition to exertional impairments." 676 F.2d at 934-35;
20 C.F.R. Part 404, Appendix 2, Sec. 200.00(e). And, where a claimant has both
exertional and non-exertional impairments, the ALJ must evaluate them together
to determine whether a claimant who suffers from a combination of these is
disabled. Burnam v. Schweiker, 682 F.2d 456, 458 (3d Cir.1982). Because the
grids themselves do not justify a conclusion as to disability, when there are both
exertional and non-exertional impairments, the Secretary must rely upon some
other supporting evidence in the record to demonstrate that the claimant can
perform work available in the national economy. The ALJ did not call a vocational
expert who might have considered the full scope of Hoeft's impairments and
evaluated whether a person with Hoeft's non-exertional impairments could

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perform heavy work available in the national economy (pursuant to the Medical
vocational guideline 204.00). Rather, notwithstanding the presence of serious non-
exertional impairments, the ALJ simply applied the grids. This action is in
violation of the 9th Circuit rulings as cited above and Heckler v. Campbell, 461
U.S. 458, supra. Because Hoeft's non-exertional impairments limit her ability to
perform the full range of jobs requiring heavy work, the Secretary may not rely
solely on the grids to rule out disability. To support such a ruling, he must
introduce expert vocational testimony or other supporting evidence. Smith v.
Bowen, 826 F2d 1120 (DC 1987).
When a claimant demonstrates incapability of returning to past work
because of medical disability, this circuit shifts the burden to the Secretary
to show jobs within the capabilities of the claimant. See Bonilla v. Secretary of
Health, Educ. and Welfare, 671 F.2d 1245, 1246 (9th Cir.1982). By their own
terms, the Appendix 2 Guidelines are "not fully applicable" and are at best a
"framework" for reaching a decision when non-exertional limitations restrict a
claimant's ability to tolerate certain work settings. The Court noted in [Campbell]
that the regulations "recognize that some claimants may possess limitations not
factored into the guidelines" and "provide that the rules will be applied only when
they describe a claimant's abilities and limitations accurately. " Heckler, 461U.S.
at ---- n. 5, 103 S.Ct. at 1955 n. 5. Inability to function because you are nervous,
anxious or depressed; difficulty maintaining attention or concentrating; difficulty
understanding or remembering detailed instructions, are three examples given in
the guidelines of non-exertional restrictions not factored into the Rules. Thus,

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the ALJ's reliance on the Guidelines was error. Kail v. Heckler, 722 F2d 1496
(9th Cir 1984).
Because Hoeft has [non-exertional] impairments, the Commissioner
cannot rely on the grids. Instead, the commissioner must rely on the testimony of a
Vocational Expert to determine Step Five of the five-step sequential inquiry
whether she remains capable of performing “other jobs that exist in substantial
numbers in the national economy.” Lewis v. Apfel, 236 F.3d 503, 508 (9th Cir
2001); Bruton v. Massanari, 268 F.3d 824 (9th Cir. 2001); 20 CFR § 416.920(f).

4.
CREDIBILITY
The ALJ also claims that Hoeft is not credible because she was near
completion of her law degree. Hoeft was one year away from that degree when
she found out that the dean of the school (Saratoga University School of Law);
Michael Narkin had embezzled the assets of the school and fled the state (see
attached article). Hoeft has no transcripts and the credits are non-transferable to
any School of Law and therefore wasted 3 years of her life and several thousand
of dollars saved up from her small income during the time she was employed, and
now faces an uphill battle to retain DIB. It should be noted that Hoeft paid for and
began school approximately 6 months before the onset of her disability. Hoeft is
now of advanced age and her increased severity of her disability render her

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incapable of learning new skills or trades. The ALJ also noted that a one-time
statement of “doing wonderfully” on her first experience with anti-depressants is
also grounds for not finding Hoeft credible. The vast 9 year history of medication
in attempting to ameliorate Hoeft’s impairment belies this. It is true that “If the
evidence can support either outcome, the court may not substitute its judgment for
that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016. 1018 (9th Cir 1992). But the
Commissioner’s decision “cannot be affirmed by simply isolating a quantum of
supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243(9th Cir 1998).
Rather, a court must “Consider the record as a whole, weighing both evidence that
supports and evidence that detract from the secretary’s conclusion.” Penny v.
Sullivan, 2 F.3d 953, 956 (9th Cir 1993); Aukland v. Massanari, 257 F.3d 1033
(9th Cir. 2001). The ALJ did not do this; rather he took those two issues and
disregarded the rest of the record to come to the fallacious conclusion that Hoeft
was not disabled.
5.
INEFFECTUAL ASSISTANCE OF COUNSEL
Claimant applied for and was denied pro-bono counsel. Claimant is
medically unstable and is illiterate in Social Security law, and was misguided by
her first Counsel of Record, Dennis Cameron. Because of his malfeasance, no
counsel from California to Arkansas, would take on the case and claimant had to
try her best to perfect the appeal. The proper standard requires the [defendant] to
show that there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different. A reasonable

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probability is a probability sufficient to undermine confidence in the outcome. A
court hearing an ineffectiveness claim must consider the totality of the evidence
before the judge or jury. Pp. 691-696. [Strickland v. Washington, 466 U.S. 668,
670]. If Claimant had properly brought the issue of the need for a VE before this
court, pursuant to Heckler v. Campbell, supra. The outcome may have been
different.

CONCLUSION
The court should grant Hoeft a rehearing, because the decision conflicts with
the case of Heckler v. Campbell, 461 U.S. 458, 103S.Ct. 1952, 76 L.Ed.2d 66
(1983), and the above cited 9th Cir cases as well as the vast majority of the sister
circuits of the United States and the inability to properly prosecute her case as a
disabled, ineffectual and incapable “counsel.”

DATED:

Respectfully Submitted,

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____________________
Monica Hoeft
In Pro-se
P.O. Box 4843
Stockton. CA 95204-4843
(775)544-2721

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