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

Claimant Monica Hoeft inpro 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

Claimants condition as guarded. (TR. at 120-125). Claimants 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 Claimants 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 claimants] 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 Hoefts limitations prevent her from working.

McDaniels v. Callahan , 113 F.3d 1241 (9 th 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 relyon 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 Claimants

symptoms failed to qualify, nor did he provided any explanation as to how

he reached the conclusion that claimants 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 (10 th 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 Hoefts claim. Smith v.Bowen, 837 F2d 635 (4 th 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.

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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 9 th Cir

has held that [t]he Commissioners need for efficiency justifies the use of the

grids at step five but only when the grids completely and accurately represent a

claimants 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 impairmentsmay make reliance on the grids

inappropriate. Id. at 1101-02 ( citing Desrosiers v. Secty 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);

G agnon 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 (9 th 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 Hoefts 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

Commissioners 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 secretarys 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

InPro-seP.O. Box 4843Stockton. CA 95204-4843(775)544-2721

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