Appellant's Reply Brief

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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ) ) ) ) Case No.: 07-36060 ) ) ) ) Appellant’s Reply Brief ) ) ) ) ) )

Brenda J. Maupin, Pro Se, Appellant, vs. Michael Astrue Commissioner of Social Security, Appellee.

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TRANSCRIPT ISSUES Maupin received the Commissioner’s Supplemental Excerpts of Record on March 29, 2008, along with the Appellee’s Brief. The Commissioner’s

Supplemental Excerpts of Record has the wrong page numbers at the lower right corner starting at Tr. 863/SER 864. The beginning of Volume IV, page i, lists the last page of Transcript as 929; however, the last page of the Transcript the Commissioner provided to the District Court was page 928, as proven by page xvi, the sixth page of volume IV. The last page of record also proves Also,

this change because the Transcript page is 928 and SER page is 929.

the Commissioner changed the transcript by moving Tr. 5-7 to the beginning of other volumes, making it more difficult to locate documents. Due to these

discrepancies, this document will continue to rely upon the accurate page numbers at the upper right corner and refer to them as Tr. Tr. and SER will be used in order to avoid any confusion. In response to Commissioner’s footnote on page 1 of Appellee’s Brief, Volume I of the Commissioner’s SER failed to include Plaintiff’s Opening
Appellant’s Reply Brief Case No.: 07-36060 Page 1 of 25 Brenda J. Maupin

At times, both

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Brief (Docket #14) and Plaintiff’s Reply Brief (Docket #20).

The Appellant’s

Informal Brief Attachment is not a separate document, the Appellate Court allows a pro se appellant to add up to 40 additional pages to their Informal Brief Form; Maupin added 18 pages and attached the documents the Court required, plus the five certification of legal blindness. Replying to the Commissioner’s claim that Maupin submitted new evidence to the District Court, pages 40-41 of Appellee’s Brief states the following: Ms. Maupin submitted with her Opening Brief 126 pages and a videotape that she previously supplied to the Appeals Council, identified as Exhibits A-G. Ms Maupin forwarded the documents to this Court, which she designated as “Tr. 961-1054” (Appellant’s Informal Brief at 2). These documents were not part of the record before the ALJ or the Appeals Council. The only exhibits that were not included by the Appeals Council were Exhibits labeled D, F, G and J. Exhibits D, F, and G were duplicates of documents previously included in the records as Exhibits. Exhibit F was Judge Caulfield’s letter to vocational expert, Francene Geers, stating that her October 20, 2004 testimony would “primarily cover the following period: July 15, 1998 through December 31, 2003.” Exhibit G was

Judge Elliott’s July 11, 2005 letter to vocational expert, Francene Geers (this letter proves that the ALJ violated Hallex I-2-5-57 D(2) by not providing any new evidence to the vocational expert). Maupin contends that

these documents are not duplicates already included in the record as the Commissioner states, and if they were, the Commissioner would have provided Tr./SER references where they could be found. The Commissioner has many

duplicate documents in the record, such as Drs. Flaxel and Graham’s certifications of legal blindness [Tr. 423/424 and 728/729]; therefore, the argument that they are duplicates fails. Furthermore, Tr. 548 proves that the Appeals Council received on October 6, 2005 Exhibits A-J and Tr. 882 details Exhibits A-J; therefore, these exhibits are not new evidence as the Commissioner claims. The District

Court Magistrate accepted these documents into evidence because he
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acknowledged, viewed and referred to Exhibit A, the videotape (see District Court’s Order, page 7, lines 18-24). The Commissioner objects to the

inclusion of the videotape because it proves that the Commissioner’s descriptions of that tape are inaccurate. Exhibit J was also provided to the

Appeals Council, as proven by Tr. 882 and 548; therefore, the Commissioner should have included the Petition for Writ of Certiorari and all other documents provided to the Appeals Council as part of the transcript. See

McCartey vs. Massanari, 298 F.3d 1072 (9th Circ. 2002). The Commissioner objects to the inclusion of the Petition for Writ of Certiorari because it explains the laws the Commissioner violated during the 2001 proceedings, exposes the fabricated evidence the Commissioner used to ignore the certifications of legal blindness during the first proceedings and provides an answer to all credibility issues the Commissioner raised to this Court. On December 21, 2006, the Appeals Council received Dr. Bartlett’s report, which the Commissioner included in the record [Tr. 883-888]. Since the

Commissioner included in the transcript this information, the Commissioner should have also included all exhibits provided with Maupin’s Request for Review of Hearing Decision/Order on October 6, 2005 [Tr. 548]. As proven by

the foregoing information, Maupin is not supplementing the administrative record; she is only providing to the Court what the Commissioner omitted from their transcript. The fact that the Commissioner submitted a transcript of

928 pages, but left out what the Appeals Council received from Maupin is inexcusable. The exhibits provided to the Appeals Council on October 6, 2005

were provided to the District Court with Plaintiff’s Opening Brief [Docket #14]. Maupin’s references to these documents submitted with Docket #14 are Transcript issues were also covered on page 2 of

listed as Encl. Tr.

Appellant’s Informal Brief Attachment.

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REPLY TO MEDICAL EVIDENCE In response to page 4 of Appellee’s Brief, which relied upon the 1997 medical evidence of Patrick J. Chan, Maupin previously addressed this issue on pages 1-2 of Plaintiff’s Reply Brief [Docket #20] as follows: Patrick Chan refused to complete his exam stating he did not want to get involved in a malpractice case and returned Plaintiff’s money [Tr. 214 & 393]. Dr. Chan stated that the color corneal topographies [Encl. Tr. 938-939] prove the damage to both eyes so he would not be necessary to help with Plaintiff’s Workers Compensation case [Tr. 115 & 914]. Additionally, Dr. Chan’s report is suspect since there was no issue of legal blindness at that time and it only became a concern after Drs. Flaxel and Graham certified that Plaintiff is legally blind in 1999 [Tr. 728-729]. Page 5 of Appellee’s Brief refers to Dr. Ardeleanu who examined Maupin on April 13, 1998. At that time, Valentin Ardeleanu reported Maupin’s right ”I recommended a consult with an

eye vision as 20/80‫ ־‬and stated:

ophthalmologist regarding the lid lesion, bandage contact lenses for her corneas, as well as artificial tears for her incomplete lid closure” [Tr. 730-732]. Since Maupin’s employer had canceled her medical insurance, Maupin That explains why Maupin’s vision deteriorated

was unable to seek treatment.

by the time Vocational Rehabilitation paid for Maupin to have a consultative examination with Dr. Flaxel [Tr. 423, 424, 728 & 729]. Doctors Chan and

Ardeleanu were prior to the certifications of legal blindness [Tr. 728, 729, 808, 868-869 & 885] and applications for disability benefits. Page 5 of Appellee’s Brief also refers to Dr. John Walker’s report. Please note that Dr. Walker’s 1999 report stated that he would “talk to her about treatment for inflammatory bowel disease” subsequent to performing a colonoscopy [Tr. 417 & 739]. Maupin’s letters to Dr. Flaxel as quoted on pages 7, 10 and 11 of Appellee’s Brief indicate the frustration because of Flaxel’s reports contradicting what he told Maupin during his evaluation and the intense eye
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pain as confirmed by Drs. Bartlett and Gates [Tr. 885-886 & 807].

Dr. Flaxel

testified over the telephone on May 23, 2001 that his conclusions were based upon “corneal scarring” and “possibly secondary dual corneal injury” [Tr. 47]; therefore, his clinic’s certifications should not be ignored [Tr. 728 & 729]. Page 8 of Appellee’s Brief refers to consultative examiner, Dr. Shults. Reasons that Dr. Shults’ June 14, 1999 report should not be relied upon were addressed on pages 4 and 5 of Appellant’s Informal Brief Attachment. Again,

Dr. Shults is the only examining physician to claim that Maupin’s right eye vision is hand motion at one foot [Tr. 435]. Dr. Shults claimed that

Maupin’s “performance is incompatible with a patient with hand motion vision at one foot” [Tr. 438]. At Maupin’s Oregon Commission for the Blind Hearing,

Dr. Shults testified that Maupin could not read his eye chart from 20 feet but described it from 20 feet [Tr. 528]. and should be ignored. Therefore, his report is inaccurate

Since the Commissioner received signed consultative

examination reports from Dr. Shults and Dr. Wahl [Tr. 433-438 & 462-476], there is no valid excuse that nine years after Dr. Flaxel’s consultative examination, the Commissioner has not obtained a properly signed consultative examination report from Dr. Flaxel in accord with 20 C.F.R. §404.1519n and Hallex 1-2-520 [Hallex provided at Tr. 213]. There are more recent vision

examinations provided by Dr. Gates in December 2003 [Tr. 856-861 & 867-869] and Dr. Bartlett in August 2006 [Tr. 884-888] that contradict Dr. Shults. Page 11 of Appellee’s Brief relies upon a report from Optometrist Douglas Walker, who Maupin consulted for a pair of glasses in September 2000. The Commissioner did not request this report until July 2003 [Tr. 794]. Maupin has sought treatment and glasses to improve vision, yet neither has been provided [Tr. 191, 219, 220, and 407-409]. Therefore, Maupin is unsure

how the Commissioner expects Maupin to work without glasses, since she has
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required the use of glasses since the first grade.

Since the Commissioner

contacted doctors who examined Maupin prior to the first ALJ’s July 2001 decision, they should have gone back to Dr. Flaxel for a consultative examination report in accordance with C.F.R. §404.1519n. Please note that

the only documents that have Dr. Flaxel’s full signature are his certification that Maupin is legally blind [Tr. 423] and his two letters to Maupin informing her that none of Flaxel’s eye clinics would provide Maupin optical services [Tr. 219-220]. The new medical evidence from Dr. Gates in

2003 [Tr. 808] and Dr. Bartlett in 2006 [Tr. 885-886] verifies the reason for Maupin’s vision loss and should be considered for reopening of Maupin’s disability case. See Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988).

Page 11 of Appellee’s Brief relied upon the May 23, 2001 telephone testimony of Dr. Baer. 2001 [Tr. 80-139]. Maupin’s first hearing was conducted on April 18,

Dr. Baer was not at that hearing but only testified at Maupin did not

the May 23, 2001 Supplemental Hearing by Telephone.

participate in this illegal proceeding because she never waived her legal right to in-person testimony in accord with 20 C.F.R. §404.950. Maupin

requested subpoenas of Drs. Flaxel and Graham on April 26, 2000, July 17, 2000 and March 28, 2001 [Tr. 187, 189 & 210-211]. Since the ALJ needed their

testimony, along with medical and vocational experts, the ALJ had sufficient time to schedule their testimony for the April 18, 2001 Hearing. As

presented to the Supreme Court, the ALJ denied Brenda Maupin the right to complete the record and explore all relevant facts regarding Dr. Flaxel’s and Dr. Graham’s certifications of legal blindness by ignoring the request for subpoenas [Encl. Tr. 984]. Page 30 of Appellee’s Brief asserts that the

Commissioner ignored Dr. Graham’s 1999 assessment that Maupin’s legal blindness is permanent because she was not an examining physician. Dr.

Graham’s opinion was based upon Dr. Flaxel’s records, which to this date

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Maupin has been denied access, as well as the telephone experts. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9 th Cir. 2001).

See

Additionally, Dr.

Baer was not a “fair and impartial witness” as the Commissioner claims because “Dr. Baer admitted that he has known Dr. Shults for 30 years” [Tr. 51 & Encl. Tr. 988]. Pages 24 & 25 of Appellee’s Brief stated that: “Maupin

went from 20/20 vision to 20/400 vision as found by Dr. Flaxel” and Dr. Baer testified that he based his testimony “on a review of the entire record.” Maupin contends these are false statements, as nowhere in the record is Maupin’s vision reported as 20/20 and the ALJ said he only submitted to the telephone doctors “part of the prior proceedings” [Tr. 42]. Dr. Baer must

not have examined Dr. Ardeleanu’s April 13, 1998 report that listed Maupin’s right eye vision as 20/80- and this was the vision report prior to Dr. Flaxel’s March 1999 examination [Tr. 407]. There is no letter to any of Furthermore,

these doctors indicating what part of the record they received.

Dr. Kehrli examined the entire record and determined on July 20, 1999 that Maupin’s primary diagnosis is blindness and low vision [Tr. 140 & Encl. Tr. 1054]. Also, Dr. Baer must not have been provided Dr. Wahl’s examination

report that opined that Maupin’s symptoms “are not intentionally produced or feigned” [Tr. 466] since Dr. Baer testified that, “I would come down on the side of this lady being actively falsifying her symptoms. an opinion and not a matter of sworn testimony” [Tr. 54]. But that would be Telephone

testimony is a violation of 20 C.F.R. §404.950(d)&(e) and does not discharge the ALJ’s duty to “fully and fairly develop the record and to assure that the claimant’s interests are considered.” 1144, 1150 (9th Cir. 2001). See Tonapetyan v. Halter, 242 F.3d

If this Court is going to continue to allow the

Commissioner to rely upon this illegal testimony, the Commissioner should be required to provide the copies of the tapes in accord with Federal Rules of Evidence, Article X, Rules 1002 and 1003. Since Dr. Baer never heard

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Maupin’s testimony and did not perform an examination, more weight should be given to examining Drs. Flaxel, Gates and Bartlett in accord with 20 C.F.R. §404.1527(d)(1). The May 23, 2001 Supplemental Hearing tapes were first

requested by Maupin under the Privacy Act, 5 U.S.C. §552, on July 7, 2005 [Tr. 760]. Since that request was ignored, another Privacy Act request was The Commissioner violated the

submitted on December 27, 2005 [Tr. 545].

Privacy Act by not only refusing to provide the requested items, but the Commissioner never sent Maupin a letter as to why the Commissioner denied the Privacy Act request. Privacy Act issues were discussed on pages 6 & 7 of

Plaintiff’s Opening Brief (Docket #14) and pages 6 & 7 of Plaintiff’s Reply Brief (Docket #20). Page 26 of Appellee’s Brief ignores the fact that Bartlett opined that Maupin is statutorily blind and provided the reasons for the vision loss [Tr. 885/SER 886]. Bartlett’s report was provided to the Appeals Council, the Commissioner added it to the Transcript, the evidence relates to Maupin’s request for disability due to vision loss and therefore, warrants the Commissioner’s attention. Circ. 2002). See McCartey vs. Massanari, 298 F.3d 1072 (9th

Also, Dr. Bartlett’s report was provided to the Commissioner

before Maupin’s date last insured of December 31, 2010 for statutory blindness or June 30, 2016 for disability insurance purposes [Tr. 140, 341, 623 & Encl. Tr. 1054]. On August 16, 2006, Dr. Roy W. Bartlett, Board

Certified Ophthalmologist, of the Bartlett Eye & Laser Clinic in Bothell, Washington, performed a thorough vision examination [Tr. 884]. Dr. Bartlett

submitted a letter to SSA Regional Commissioner, Carl Rabun on December 5, 2006 reiterating Maupin’s vision loss of 20/300 in the best eye, chronic scarring of the cornea with vascularization of the cornea inferiorly, permanent irregular corneal surface which is permanent and that Maupin is unable to work [Tr. 885-886]. Dr. Barlett also prescribed Acular for

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Maupin’s eye inflammation and pain [Tr. 888/SER 889].

This information is

very similar to Dr. Gates report [Tr. 806-808 & 868-869] and proves that Dr. Flaxel and Graham’s certifications should not have been ignored [Tr. 728 & 729]. Dr. Bartlett’s report is not evidence regarding a new disability, but

supports Maupin’s request for disability due to vision loss and shows that the Commissioner should not have ignored Drs. Flaxel and Kehrli’s opinions that Maupin is legally blind [Tr. 728, Tr. 140/Encl. Tr. 1054] and Dr. Graham’s opinion that the blindness is permanent [Tr. 729]. Dr. Bartlett

just provided further explanation as to why Maupin’s disability has kept her from working since July 1998. If the Commissioner wanted Dr. Bartlett’s

“chart notes” they should have requested them, as the Appeals Council had already held Maupin’s case for fourteen months (page 43 of Appellee’s Brief). Also, Drs. Bartlett and Gates stated that Maupin needs medical consultations, yet Maupin has no medical insurance [Tr. 856 & 886]. Page 26 of Appellee’s Brief states: “Although Drs. Baer, Dragovich,

and Bruton were nonexamining medical sources, they had the benefit of reviewing the entire record in this case.” This issue was previously

addressed to the Federal Courts [Encl. Tr. 986-987] as follows: Dr. Susan Dragovich must not have reviewed all medical evidence or the hearing record since she states on page 67 of Defendant’s Transcript of Record, “Gets fired from her job. And then presents herself as being severely impaired from a visual sense.” Plaintiff’s employment was terminated on July 15, 1998, and prior to this Dr. James Cech, the treating Worker’s Compensation Physician, records the Plaintiff’s right eye vision as 20/30 on May 22, 1996 and shows deterioration of right eye vision on subsequent visits [Defendant’s Transcript of Record, pages 490, 488, 480 and 481]. The last worker’s compensation examination by Dr. Cech was on March 11, 1997, where he records the Plaintiff’s right eye vision as 20/50 = [Defendant’s Transcript of Record, page 479]. On that date, Dr. Cech also claimed that the Plaintiff’s condition was “stable” [Defendant’s Transcript of Record, page 478]. On August 9, 1997 Dr. Brooksby says that patient “uses magnifier to read” [Defendant’s Transcript of Record, page 399] and Plaintiff’s testimony confirmed this fact [Defendant’s Transcript of Record, pages 114, paragraph 3; 117, paragraph 8; 285, paragraph 15 and 287, paragraph 15]. On April 13, 1998

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Valentin Ardeneanu, O.D. recorded the Plaintiff’s right eye vision as 20/80- and “filled out her paper work for a disabled permit for DMV.” [Defendant’s Transcript of Record, pages 407 and 409]. Dr. Ardeleanu’s report states that the Plaintiff has “heavy scarring on the lower third of the cornea” and needs “bandage contact lenses for her corneas” [Defendant’s Transcript of Record, pages 407 and 409]. This is the first acknowledgement since the worker’s compensation injury that both eyes need treatment. By this time the Plaintiff could not obtain treatment, because her employer, Westak Inc., had cancelled her medical insurance when her job was changed to part-time in September of 1997. Additionally, every ophthalmologist the Plaintiff has seen since the Worker’s Compensation injury has not provided treatment. Page 26 of Appellee’s Brief also disregarded American Board of Professional Disability Consultants, Dr. Kehrli’s diagnosis of “blindness and low vision” [Tr. 140/Encl. Tr. 1054] because it “does not prove Ms. Maupin’s assertion that she was disabled.” Dr. Kehrli is one of the Commissioner’s

disability consultants; therefore, his opinion after reviewing the entire record should not have been ignored by the Commissioner. This demonstrates

the Commissioner’s refusal to accept any medical opinion that Maupin is statutorily blind.

REPLY TO CREDIBILITY ISSUES Page 8 of Appellee’s Brief partially quotes a report of contact from a Social Security District office [Tr. 173]. This July 30, 1999 report is

proven false by the fact that Dr. Shults did not make this allegation in his report [Tr. 433-443] and Dr. Shults’ June 9, 1999 cover letter to DDS stated: “Thanks very much for asking me to see this lady” [Tr. 433]. a restraining order, as the report claims [Tr. 173]. There was never

Additionally, the

report of contact was dated July 30, 1999, more than a month after the alleged incident. If the report of contact were true, ALJ Stewart would have

had Dr. Shults testify over the telephone about this alleged incident, rather than Dr. Shults’ associate, Dr. Baer.
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None of the ALJ’s questioned Maupin
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about this false report.

Further details can be found at page 11 of

Appellant’s Informal Brief Attachment, page 3 of Plaintiff’s Reply Brief [Docket #20], and the Petition for Writ of Certiorari [Encl. Tr. 977]. Page 10 of Appellee’s Brief quoted from the Cooperative Disability Investigations Unit of the Social Security Administration Office of Inspector General with a quote that included the fact that “she was videotaped.” The

inaccuracy of the statements in that report, as proven by the videotape, was covered on pages 9-11 of Appellant’s Informal Brief Attachment. The Maupin’s

Commissioner did not dispute Maupin’s description of the videotape.

right to the videotape was not adjudicated by the Ninth Circuit’s February 13, 2003 decision [Encl. Tr. 1008 & 1009] and the United States District Court for the District of Oregon’s May 29, 2002 decision [Encl. Tr. 10101035]. Subsequent to Maupin’s complaint to the White House, the Commissioner

finally provided Maupin an edited copy of the videotape in February 2004. The Commissioner continues to argue that they are not required to provide “an unedited copy of a February 2000 surveillance videotape” (page 39 of Appellee’s Brief), which is more proof that the CDI/OIG report was fabricated. ALJ Elliott should have honored Maupin’s request to “have a TV

and VCR available for viewing the February 10, 2000 video surveillance tape” because Maupin wanted to discuss the false CDI/OIG report at the hearing [Tr. 697]. The videotape was supplied to the District Court of Washington, along

with all other Appeals Council documents as an enclosure to Docket #14. Furthermore, Magistrate Arnold refers to the videotape on page 7 of the District Court’s Order; therefore, the videotape must be included in the record. The Federal Rules of Evidence, Article X, Rule 1001 Definitions (2)

defines photographs as “still photographs, X-ray films, video tapes, and motion pictures.” Rule 1002 states, “To prove the content of a writing,

recording, or photograph, the original writing, recording, or photograph is
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required, except as otherwise provided in these rules or by Act of Congress.” The videotape is “new and material” evidence that should also be considered as good cause for reopening (20 C.F.R. §404.989). Therefore, the

Commissioner should not continue to quote and deny benefits based upon a report that is proven false by the videotape. Page 19 of Appellee’s Brief states: “The ALJ is not required to All of

automatically credit or believe every allegation of disabling pain.”

the case law the Commissioner cites on page 19 was to resolve credibility issues related to pain. Again, the issue is whether Maupin meets the

requirements of statutory blindness in accord with 20 C.F.R. §404.1581 [Tr. 548]. Therefore, all allegations regarding Maupin’s credibility should be

ignored because there is objective medical evidence to support claimant’s visual limitations. See Light v. Social Security Administration, 119 F.3d 789 (9th Cir. 1997). #14). (Presented on page 11 of Plaintiff’s Opening Brief, Docket

This issue was also addressed on pages 3 and 9-11 of Appellant’s

Informal Brief Attachment. Page 21 of Appellee’s Brief states that: “The ALJ judged Ms. Maupin’s credibility based on consideration of the entire case record and provided clear and convincing reasons supported by substantial evidence for this determination.” ALJ Elliott’s decision stated that: “The claimant has

presented the same allegations as were considered in the July 2001 Administrative Law Judge decision, and such allegations remain not credible for the same reasons set forth in that decision” [Tr. 558]. At Maupin’s

continued hearing, Judge Elliott never mentioned credibility issues and ignored Maupin’s request to discuss this issue [Tr. 697]. Since Maupin has

appeared before three ALJ’s, the Commissioner should have pointed to discrepancies in Maupin’s testimony if the Commissioner’s credibility allegations were true.
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See Light v. Social Security Administration, 119 F.3d
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789 (9th Cir. 1997).

Judge Elliott deferred to ALJ’s Stewart’s opinion,

instead of pointing to the 2004 and 2005 hearings with regard to credibility [Tr. 889-928]; therefore, ALJ Elliott did not base his opinion on the entire record. Pages 22 and 23 of Appellee’s Brief reports an incident with Dr. Wahl that ALJ Stewart referenced in his 2001 decision. This issue was addressed

as follows on pages 9-10 of Plaintiff’s Opening Brief [Docket #14]: ALJ Stewart then alleged that the plaintiff’s “degree of functioning in inconsistent with the claimant’s professed inability in her examination by Dr. Wahl to see a document waved directly in front of her face” [Tr. 27]. This issue was addressed in the Supreme Court Petition [Encl. Tr. 989]. Brenda Maupin did not see the paper because her eyes were closed since the lights in Dr. Wahl’s office were hurting her eyes. Dr. Wahl would not know when Brenda Maupin had her eyes closed because he reported that: “She wore dark glasses throughout the evaluation” [Tr. 466]. Plaintiff testified at the April 18, 2001 hearing regarding light sensitivity [Tr. 291]. With plaintiff’s current disability case, Dr. Gates confirmed the light sensitivity issue [Tr. 806]. Dr. James Wahl provided the February 10, 2000 consultative neuro-psychological screening for the defendant [Tr. 462-467]. Once Dr. Wahl determined that plaintiff is not malingering, defendant should have ceased attacking plaintiff’s credibility.

All credibility references in the Commissioner’s statements have been regarding evidence prior to ALJ Stewart’s 2001 decision and were previously addressed by Maupin to the Courts [Encl. Tr. 977, 982, 988-993, pages 8-12 of Plaintiff’s Opening Brief, (Docket #14) & pages 9-11 of Appellant’s Informal Brief Attachment]. None of the Commissioner’s credibility issues have merit.

Furthermore, credibility is a moot point, as the issue is statutory blindness, not pain. See Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991).

REPLY TO LEGAL ISSUES Page 4 of Appellee’s Brief states that, “Ms. Maupin was 54 years old at the time of the ALJ’s decision.” The Commissioner failed to respond to

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Maupin’s argument that she had a change in her age category on pages 7-9 and 17 of Appellant’s Informal Brief Attachment. The ALJ and Appeals Council

should have considered this change because 20 C.F.R. §404.1563(b) states: “If you are within a few days to a few months of reaching an older age category, and using the older age category would result in a determination or decision that you are disabled, we will consider whether to use the older age category after evaluating the overall impact of all the factors of your case.” ALJ Elliott’s decision was issued on August 8, 2005 without

acknowledging that Maupin would turn 55 on September 13, 2005 (just over a month after his decision). At the hearing the ALJ acknowledged Maupin’s work

history as an “administrative assistant” and made sure that the vocational expert’s responses were “utilizing some skills from past relevant work” [Tr. 922]. At the time of the written interrogatory, the ALJ abandoned this line

of questioning and requested unskilled jobs without mentioning vision limitations, making it possible for the vocational expert to reply with jobs that did not utilize Maupin’s past skills in direct violation of 20 C.F.R. §404.1583(c). The Commissioner erred by not acknowledging the change in The

Maupin’s age category. See Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988). Appeals Council received Maupin’s request for review and was notified that Maupin had reached the advanced age of 55 [Tr. 875].

The District Court did

not adjudicate this issue because it only considered disability through the SSI date last insured of December 31, 2003 (page 4, lines 23-26 of District Court’s Order). Maupin’s current application does not include SSI and the

issue is legal blindness with a date last insured until at least December 31, 2010; therefore, the District Court should have considered Maupin’s advanced age category [pages 2-3 & 18 of Plaintiff’s Opening Brief]. Pages 17-19 of Appellee’s Brief argue that Maupin’s disability case was not reopened. Maupin already addressed the new medical evidence and good
Brenda J. Maupin

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cause for reopening on pages 5-9 of Appellant’s Informal Brief Attachment. Both ALJ James Caulfied and Gary Elliott stated that the vocational expert’s testimony would go back to 1998, giving the impression that Maupin’s disability case was reopened [Tr. 567 & Encl. Tr. 951]. During the January

14, 2005 Hearing, ALJ Elliott allowed Maupin’s representative to question the vocational expert regarding evidence that Maupin was accepted as a client of Vocational Rehabilitation on June 30, 1998 and the Commission for the Blind in October 2000 [Tr. 924-925]. Transcript 701 and 743-749. These vocational documents can be found at

The Commissioner granted a new hearing, which

was conducted on October 20, 2004 and continued on January 14, 2005; therefore, the Commissioner should be relying upon the evidence and hearing record from those dates since the Commissioner claims Maupin’s disability case was not reopened [Tr. 889-928]. Since the Commissioner argues that

Maupin’s disability case was not reopened, then ALJ Elliott should have honored the subpoena request of Drs. Flaxel and Graham [Tr. 696 & 697]. Their testimony was necessary for clarification of their signed certifications and needed to complete the record since Maupin’s September 24, 2005 request for written interrogatories was ignored [Tr. 691]. See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). Page 19 of Appellee’s Brief states: Where evidence exists to support more than one rational interpretation, the Court must defer to the decision of the ALJ. Batson v. Comm’r, 359 F.3d 1190, 1193 (9 th Cir. 2004). The ALJ is not required to automatically credit or believe every allegation of disabling pain. Batson v. Commissioner pertained to claimant’s pain allegations. Again, the issue is not pain [Tr. 548] and five certifications that Maupin meets the regulations of statutory blindness in accord with 20 C.F.R §404.1581 should not be open to more than one interpretation [Tr. 728, 729, 808, 868-869 & 885].

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Pages 34-35 of Appellee’s Brief claims that Maupin did not raise the issue of the Dr. Gates subpoena in her “opening brief to the district court.” This is a false statement as proven by page 13, lines 2-7 of Plaintiff’s Opening Brief (Docket #14), which stated the following regarding ALJ Caufield’s October 20, 2004 Hearing: On April 20, 2004, defendant received plaintiff’s first request for subpoenas of Drs. Gates, Flaxel and Graham [Tr. 684]. Plaintiff received no response regarding subpoena request; therefore, on September 24, 2005 plaintiff requested that the ALJ submit written interrogatories to those three doctors since it appeared that the ALJ was “not going to issue the subpoenas” [Tr. 691]. Pages 13-14 of Plaintiff’s Opening Brief [Docket #14] continued to address this issue with Judge Elliott’s January 14, 2005 Hearing, as follows: Plaintiff was informed that ALJ Elliott scheduled to continue plaintiff’s hearing on January 14, 2005 [Tr. 564]. In response, plaintiff again requested subpoenas of Drs. Gates, Flaxel and Graham on December 3, 2004 [Tr. 696-697]. . . Judge Elliott also stated in his December 22, 2004, letter that he “issued a subpoena to Dr. Patricia Gates” [Tr. 750]. Judge Elliott ignored plaintiff’s request to include “the subpoena and proof of service of that subpoena since Patricia Gates failed to appear at the January 14, 2005 hearing” [Tr. 709]. The fact that Judge Elliott ignored this request and Dr. Gates did not appear at plaintiff’s hearing seems to indicate that the ALJ did not actually issue the subpoena for Dr. Gates to appear at plaintiff’s hearing in violation of 20 C.F.R. §404.950(d). Therefore, the Commissioner’s objection is inappropriate and this Court should adjudicate the matter of Dr. Gates subpoena for Maupin’s 2005 hearing, since the District Court failed to do so. To this date, there is no subpoena

or proof of service for Dr. Gates in the Commissioner’s Transcript. Since the Commissioner did not accept Dr. Gates opinion that Maupin is statutorily blind, Dr. Gates testimony was necessary to complete the record and resolve any questions the Commissioner had as to the accuracy of Dr. Gates’ reports. Additionally, not issuing the subpoena as requested is a
Brenda J. Maupin

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direct violation of 20 C.F.R. §404.950(d) because the ALJ determined that Dr. Gates testimony was necessary [Tr. 750]. Maupin also provided ALJ Elliott a

set of written questions that he should have submitted to Dr. Gates [Tr. 692] in order to “fully and fairly develop the record and to assure that the claimant’s interests are considered,” especially since it appears he never issued the subpoena. See Brown v. Heckler, 713 F.2d 441, 443 (9 th Cir. 1983).

REPLY TO COMMISSIONER’S FIVE STEP EVALUATION The Commissioner disputes Maupin’s Sequential Evaluation Process found on pages 14-17 of Appellant’s Informal Brief Attachment. Page 15 of

Appellant’s Informal Brief Attachment was very clear that Maupin meets the “Appendix 1 to Subpart P of Part 404—Listing of Impairments 2.02” that defines “impairment of central visual acuity.” Drs. Flaxel, Gates and

Bartlett have examined Maupin and determined that she meets the definition of statutory blindness as found at 20 C.F.R. §404.1581 [Tr. 728, 729, 808, 868, 869, 884-886]. The Commissioner ignored Dr. Graham’s certification that

Maupin’s legal blindness is permanent [Tr. 729] because “Dr. Graham stated that she did not personally examine the claimant, but instead relied on Dr. Flaxel’s records” (page 30 of Appellee’s Brief). The Commissioner’s argument

would also apply to Drs. Baer, Dragovich and Bruton who never examined Maupin. Dr. Graham’s in-person testimony was requested so that she could

explain exactly what information in Dr. Flaxel’s records she used to determine Maupin’s legal blindness is permanent and explain the color corneal topographies at the hearing [Tr. 211]. ALJ Stewart was provided this

information on March 29, 2001, yet the ALJ never asked Dr. Graham to explain this or Maupin’s “prognosis or treatment recommendations” during the May 23, 2001 telephone testimony [Tr. 211 & 49-50]. F.3d 1144, 1150 (9th Cir. 2001). See Tonapetyan v. Halter, 242

Dr. Graham’s telephone testimony never

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revoked the accuracy of her statement that Maupin is permanently legally blind [Tr. 49]. On January 5, 2000 Brenda Maupin tried to resolve this issue

by writing Dr. Graham and asking, “why you indicated that the legal blindness is permanent, as I thought that a cornea transplant might have improved my vision” [Tr. 421]. Dr. Graham’s written response was that, “the most recent

examination performed by Dr. Flaxel on 3/15/99, and his dictated letter dated 3/29/99, were used to support the information provided on that eye examination report” [Tr. 420]. Again, Dr. Graham had the opportunity to

revoke the accuracy of her statements, but failed to do so; therefore, Dr. Graham’s certification should not be ignored [Tr. 424/729]. Furthermore,

this demonstrates the need for a signed consultative examination report from Dr. Flaxel in accord with 20 C.F.R. §404.1519. Whereas, ALJ Stewart did not

allow Maupin to complete the record in 2001, subpoenas for Drs. Gates, Flaxel and Graham were necessary for the 2004/2005 hearings [Tr. 684, 691-692 & 696]. See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9 th Cir. 2001). Page 31 of Appellee’s Brief states: “The ALJ noted that Ms. Maupin’s

testimony that she could tell that the ALJ was sitting at the end of the table and appeared to have white hair when she was approximately 15 feet away from him was inconsistent with the level of impairment reported on examination by Dr. Flaxel.” Maupin was demonstrating to the ALJ that her

visual acuity was not hand motion at one foot, as Dr. Shults reported. Maupin testified to this fact at the April 18, 2001 hearing. This false

statement was previously addressed on page 15 of the Petition for Writ of Certiorari [Encl. Tr. 982]: “One thing I would like to say is that during the OCB hearing it was brought out that visual acuity is subjective and that the doctors can pretty much do a visual acuity any way they want to do it and write the results any way they want to write them. Because I read, or not read, but described Dr. Flaxel’s eye chart exactly the way I described Dr. Shults’ eye chart and yet Dr. Flaxel, according to my daughter, she’s read the reports to me,
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she says Dr. Flaxel listed my vision as 20/400- and that Dr. Shults put down hand motion at one foot, which we had a big laugh at that. My vision is not nearly that bad because even though I can’t describe you, I can’t see what your face looks like, I can tell that there’s a person sitting at the end of this table and appears to have white hair. ALJ: And we’re about 15 feet apart.

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CL: Anyway, that’s been a real irritation to me that the doctors can get, do a test with the exact same results and list those results any way they want to.” It is clear from this testimony that Brenda Maupin was disputing Dr. Shults’ report of her visual acuity as hand motion at one foot, because Brenda’s “vision is not nearly that bad” which she demonstrated by describing the ALJ, since he was farther away than one foot. Dr. Shults is the only examining physician to claim that Maupin’s visual acuity is hand motion at one foot. At Maupin’s Oregon Commission for

the Blind Hearing, Dr. Shults testified that Maupin could not read his eye chart from 20 feet but described it from 20 feet. This hearing resulted in a

favorable decision for Maupin, as proven by Tr. 196, 676-681 and Encl. Tr. 998. These facts prove that Dr. Shults report is not dependable. This issue

was previously addressed on pages 4 & 5 of Appellant’s Informal Brief Attachment, pages 2 & 3 of Plaintiff’s Reply Brief, page 10 of Plaintiff’s Opening Brief and Petition for Writ of Certiorari [Encl. Tr. 988-989]. Page 32 of Appellee’s Brief continues to assert a false allegation that Maupin “has a valid driver’s license.” Please note this testimony was taken

at the April 18, 2001 Hearing and was followed by Maupin’s testimony that the last time a vision test was performed by the Department of Motor Vehicles was in Portland, Oregon in 1994 and that Maupin has not driven since 1998 because she could not read street signs and “almost hit someone” [Tr. 116-117]. issue was refuted on page 5 of Plaintiff’s Reply Brief (Docket #20). On This

April 13, 1998, Dr. Ardeleanu stated that Maupin’s right-eye vision was 20/80- and left eye vision as 20/1600, which is not good enough for driving

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[Tr. 730-732].

Also, for re-application Maupin again stated that she can no

longer drive [Tr. 656] and ALJ’s Elliott and Caulfield never questioned Maupin regarding this issue at the 2004 hearing and 2005 continued hearing. Additionally, the Commissioner has access to government records and if Maupin had a valid driver’s license, the Commissioner had the responsibility to include a copy of it in the record in order to prove their allegation. Page 33 of Appellee’s Brief states: “Her acceptance for vocational

rehabilitation does not provide a basis for finding that she could not perform other work; it supports a finding that she can perform other work.” Claimants can receive disability benefits while enrolled with the approved Vocational Rehabilitation programs. (9th Cir. 1983). See Leschniok v. Heckler, 713 F.2d 520

Maupin applied for Vocational Rehabilitation services in

1998 because she wanted to continue working, but knew she could not continue being an administrative assistant with her reduced vision. Maupin was

accepted as a client of Vocational Rehabilitation on June 30, 1998, while still working at Westak [Tr. 701]. Page 6 of Plaintiff’s Opening Brief,

(Docket #14) states: “Vocational Rehabilitation noted that plaintiff meets disability category due to blindness or other visual impairments and that vision is not correctable, blurriness, distortion, light blindness [Tr. 701].” Transcript 701 shows that Maupin had to prove disability in order to The Department of Human

receive Vocational Rehabilitation services.

Resources, Vocational Rehabilitation Division for the State of Oregon decided they could not assist Maupin and transferred her case to the Oregon Commission for the Blind on August 17, 1999 [Tr. 742]. The Oregon Commission

for the Blind accepted Maupin as a client, but failed to provide training; therefore, Maupin has not worked since July 1998 [Tr. 743-749]. The

vocational expert that testified at the January 14, 2005 Hearing was provided this vocational evidence [Tr. 925/SER 926]. The vocational expert reiterated

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the fact that Maupin could perform no jobs when the ALJ “factored in the vision” limitations [Tr. 926/SER 927]. Additionally, one has to meet the

same vision requirements for The Oregon Commission for the Blind of visual acuity of 20/200 or less [OAR 585-010-0020] as for disability benefits [20 C.F.R. § 404.1581]. Since the Oregon Commission for the Blind was ordered to

provide Brenda Maupin with services in October 2000 [Tr. 196, 384-389], the Commissioner should have accepted Brenda Maupin as disabled due to blindness [Encl. Tr. 994]. The testimony of the telephone experts proves that they

were not provided the Commission for the Blind evidence [Tr. 39-79]. Page 37 of Appellee’s Brief quotes the hypothetical question posed to the vocational expert six months after Maupin’s January 14, 2005 continued hearing and claims that the written interrogatory was needed for “clarification from the vocational expert following her testimony.” Please

note that the vocational expert, Francine Geers, was present at the October 20, 2004 and January 14, 2005 hearings; therefore, no further testimony should have been required. The written interrogatory used the exact

limitations set forth to the vocational expert at the January 14, 2005 Hearing, as proven by Tr. 922/SER 923 and Encl. Tr. 952. The vocational

expert correctly responded at the hearing with jobs such as time keeper, patcher and document preparer that are “sedentary and unskilled” [Tr. 922923]. The ALJ ensured that the vocational expert provided only sedentary

jobs and the vocational expert testified to unskilled jobs at the hearing; therefore, the written interrogatory was not new and material evidence. Also, at the hearing, the ALJ ensured that the jobs were “utilizing some skills from past relevant work” [Tr. 922]. At the hearing the ALJ went on to

present the additional limitations “that the person would be unable to see well enough that, in fact she would not be able to use her hands to manipulate objects,” “person would miss more than two days of work per month”

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[Tr. 923] and “as a result of pain, if a person needed to lay down perhaps two hours out of an eight hour day, would that also rule out competitive employment?” [Tr. 923-924] The vocational expert testified at the hearing The written

there would be no jobs in response to all three questions.

interrogatory did not mention these further limitations or the “new and material evidence” that Maupin would soon be of advanced age (20 C.F.R. §404.944), which would have elicited a different response from the vocational expert. Hallex I-2-5-57 D(2) (Hearings, Appeals and Litigation Law Manual)

states that an ALJ can only obtain additional evidence from the vocational expert after the hearing if the ALJ submits new evidence to the vocational expert that might change their previous testimony. The ALJ’s letter to the

vocational expert proves that the ALJ did not present any new evidence to the vocational expert [Encl. Tr. 952]; therefore, the written letter from the vocational expert should not be considered. Maupin has always done sedentary

work, such as secretary or administrative assistant; therefore, the cleaning jobs and folding machine operator do not use Maupin’s previous skills and are not sedentary jobs [Tr. 702]. At step five the burden shifted to the

Commissioner to “identify jobs existing in significant numbers in the national economy that the claimant can perform given her residual functional capacity, age, education and work experience” (Appellee’s Brief, page 16). Maupin contends that the Commissioner did not meet this burden because the vocational expert’s testimony at the hearing was that Maupin’s impairments prevent her from working and the written interrogatory responses did not consider Maupin’s “residual functional capacity, age, education and work experience”; therefore, Maupin should be entitled to her disability benefits. The vocational expert’s testimony was thoroughly discussed on pages 11-13 of Appellant’s Informal Brief Attachment and pages 15-17 of Plaintiff’s Opening Brief [Docket #14].

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SUMMARY The Commissioner’s decision was not free of legal error because the Commissioner violated the following laws and Ninth Circuit Authorities with regard to Maupin’s disability case: a) 20 C.F.R. §404.944 because ALJ Elliott reopened the hearing to receive evidence that was not “new and material,” but to suborn perjury from the vocational expert six months after the 2005 continued hearing. b) 20 C.F.R. §404.950(d) by not issuing a subpoena for Dr. Gates after determining her testimony was necessary. c) 20 C.F.R. §404.989 by refusing to reopen the 2001 hearing although, “new and material evidence” was provided by Drs. Gates, Bartlett and Muller. Also, the surveillance videotape is new evidence that proved the CDI/OIG report was false. d) 20 C.F.R. §404.1519n and Hallex 1-2-520 by failing to include a signed Consultative Examination report from Dr. Flaxel. e) 20 C.F.R. §404.1520 by incorrectly applying the five-step evaluation to Maupin’s disability case. f) 20 C.F.R. §404.1527(d)(1) by giving more weight to nonexamining physicians and ignoring examining physicians and consultative examiners, Dr. Flaxel and Dr. Wahl. g) 20 C.F.R. §404.1563(b) by ignoring the fact that Maupin was within a few months of reaching advanced age at the time of ALJ Elliott’s August 8, 2005 decision. h) 20 C.F.R. §404.1581 by not accepting five certifications that Maupin meets the definition of statutory blindness. i) C.F.R. §404.1583(c) by listing jobs as cleaner, laundry worker and folding machine operator for Maupin since these jobs do not use the skills and abilities of Maupin’s past work as a secretary. j) Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991) by the Commissioner and District Court misapplying this case regarding subjective complaints of pain and using it to discredit Maupin’s request for benefits due to legal blindness (page 9 of Appellant’s Informal Brief Attachment). k) Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988) because the new medical evidence is more severe than the “considered” impairments of conversion disorder, an adjustment disorder

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with mixed anxiety and depressed mood, and mild residuals of gastritis/colitis/esophagitis by the ALJ in 2001. Maupin’s change in age category was also not considered by the Commissioner (pages 6-9 of Appellant’s Informal Brief Attachment). l) Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) shows that the Commissioner’s decision should be reversed because the decision was not supported by substantial evidence and the Commissioner misapplied correct legal standards (page 1 of Appellant’s Informal Brief Attachment). m) Light v. Social Security Administration, 119 F.3d 789 (9th Cir. 1997) because Maupin’s case includes “objective medical evidence,” such as five certifications that Maupin meets the definition of statutory blindness; therefore, Maupin’s credibility should not have been an issue. None of the credibility issues have merit (pages 10 & 11 of Appellant’s Informal Brief Attachment). n) McCartey vs. Massanari, 298 F.3d 1072 (9th Circ. 2002) shows that the Commissioner should have considered all of the evidence submitted to the Appeals Council (page 2 of Appellant’s Informal Brief Attachment).
o) Moisa v. Barnhart, 367 F.3d 882, 885 (9 th Cir. 2004) because

ALJ Elliott did not provide clear and convincing reasons for rejecting the medical opinions of the examining physicians or claimant’s January 14, 2005 testimony regarding severity of her symptoms (page 7 of Appellant’s informal Brief Attachment). p) Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9 th Cir. 2001) because none of the ALJs discharged their duty to “fully and fairly develop the record.” All three ALJ’s that Maupin has appeared before denied Maupin the right to complete the record and explore all relevant facts because no subpoenas were issued and Maupin’s requests for written questions to Drs. Flaxel, Graham and Gates were ignored. There is nothing in the record to support ALJ Elliott’s claim that he issued a subpoena for Dr. Gates. The Commissioner’s Transcript in incomplete because it does not include a signed consultative examination report from Dr. Flaxel (page 14 of Appellant’s Informal Brief Attachment). CONCLUSION The issue presented on page three of Appellant’s Informal Brief Attachment was as follows: Does Maupin meet the requirements of statutory blindness with vision of “20/200 or less in the better eye with the use of

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correcting lens” as found at 20 C.F.R. §404.1581 and is the Commissioner’s decision free of legal error? The Commissioner has done everything they can to subvert the medical proof of Maupin’s statutory blindness; however, credibility issues, age categories, non-examining physicians, and so forth, are irrelevant to the issue of statutory blindness. Maupin has proven before her date last insured

of December 31, 2010 or June 30, 2016 that she meets the standards of statutory blindness (five certifications attached to Informal Brief) in accord with 20 C.F.R. §404.1581 and the Commissioner’s decision contains numerous legal errors; therefore, Maupin should be entitled to her disability benefits. The Commissioner has had medical proof that Maupin meets the requirements for statutory blindness since 1999 and Maupin has appeared before three ALJ’s; therefore, this Court should find a “remand for award of benefits to be appropriate” rather than requesting additional investigation. See Moisa v. Barnhart, 367 F.3d 882, 885 (9 th Cir. 2004).

Dated this 10th day of April, 2008

__________________________________ Brenda J. Maupin, Pro Se Plaintiff 316 N. H St. #101 Aberdeen, WA 98520 (360) 533-8513

Document researched and prepared by Sandra Maupin since Brenda Maupin is visually impaired.

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