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Superior Court of Pennsylvania
April 17, 2015
TIMOTHY J. STEWART, Appellantv.FEDEX EXPRESS AND FEDERAL EXPRESS CORPORATION, Appellees
Argued January 28, 2015
Appeal from the Order of the Court of Common Pleas, Beaver County, Entered June 24, 2014, Civil Division, No(s): 11222-2013. Before KUNSELMAN, J.
Gregory G. Paul, Sewickley, for appellant.
Terrence O. Reed, Memphis, TN, for Federal Express Corporation, appellee.
BEFORE: BOWES, OLSON, and STRASSBURGER,[*] JJ.
Page 425
Timothy J. Stewart (" Stewart" or " Mr. Stewart" ) appeals from the June 24, 2014 order which sustained the preliminary objections filed by FedEx Express and Federal Express Corporation (" FedEx" ), and dismissed Stewart's complaint. We affirm.
The trial court summarized the facts of this case as follows.
[Mr. Stewart] was employed at FedEx as a senior security specialist for almost six years, from April 9, 2007 through April 17, 2013. On April 5, 2013, Mr. Stewart and Kelly Kraemer, another senior security specialist, traveled together
Page 426
for work from the FedEx Pittsburgh Ground headquarters to the FedEx office in Cranberry. Mr. Stewart used his [ personal vehicle for this trip. During their trip from one FedEx location to another, Mr. Kraemer asked Mr. Stewart if he could put his car keys in the glove compartment of Mr. Stewart's car. Mr. Stewart gave Mr. Kraemer permission to put the keys in the glove box, but he advised Mr. Kraemer that he carried a handgun in the glove compartment. Mr. Stewart also informed Mr. Kraemer that he had a valid permit to carry a weapon. At all relevant times, Mr. Stewart maintained a Pennsylvania License to Carry Firearms issued by the Sheriff of Beaver County.
A few days later, on April 10, 2013, Mr. Stewart was summoned to a meeting at the Pittsburgh airport. At the meeting, Tom Herity, Manager of FedEx Zone Security in Chicago, informed Mr. Stewart that he was being investigated because of allegations concerning a handgun in the glove compartment of his car. A week later, on April 17, 2013, Mr. Stewart was terminated for violation of FedEx Policy 8.10, which, in relevant part, prohibits employees from possessing firearms or weapons on company property.
Specifically, the FedEx policy provides:
No firearms or weapons are permitted on Company property, in Corporate aircraft, in Company vehicles, or in Corporate buildings unless authorized by Corporate Security. Where federal, state or local laws impose different or additional requirements, the Company will abide by governing law.
Mr. Stewart identified the policy in his Complaint. There is no dispute that he was terminated because of the firearm in his car on April 5, 2013. Following his termination, Mr. Stewart initiated this lawsuit against FedEx alleging wrongful discharge. Mr. Stewart claims that his termination violates public policy.
Trial Court Opinion, 6/24/2014, at 2-3 (citations omitted).
FedEx filed preliminary objections in the nature of a demurrer pursuant to Pa.R.C.P. 1028(a)(4), which the trial court sustained by order of June 24, 2014. Stewart timely filed a notice of appeal. The trial court did not order Stewart to file a statement of errors complained of on appeal, and none was filed.
Stewart presents one question for this Court's consideration: " whether the [trial] court wrongfully dismissed [Mr. Stewart's] case determining a question of fact whether a licensed firearm in a personal vehicle's glove compartment is located on Mr. Stewart's or [FedEx's] property?" Stewart's Brief at 4.
We consider Stewart's question mindful of the following standard of review.
When reviewing the dismissal of a complaint based upon preliminary objections in the nature of a demurrer, we treat as true all well-pleaded material, factual averments and all inferences fairly deducible therefrom. Where the preliminary objections will result in the dismissal of the action, the objections may be sustained only in cases that are clear and free from doubt. To be clear and free from doubt that dismissal is appropriate, it must appear with certainty that the law would not permit recovery by the plaintiff upon the facts averred. Any doubt should be resolved by a refusal to sustain the objections. Moreover, we review the trial court's decision for an abuse of discretion or an error of law.
Page 427
B.N. Excavating, Inc. v. PBC Hollow-A, L.P., 2013 PA Super 120, 71 A.3d 274, 277-78 (Pa. Super. 2013) ( en banc) (quoting Ira G. Steffy & Son, Inc. v. Citizens Bank of Pennsylvania, 2010 PA Super 175, 7 A.3d 278, 282-83 (Pa. Super. 2010)).
Stewart sets forth three arguments in support of his position that the trial court erred in dismissing his complaint on preliminary objections. First, he argues that the trial court erred in holding that FedEx could terminate him for " no reason" when FedEx never informed him that he was terminated for " no reason." Stewart's Brief at 8. Next, Stewart claims that the trial court erred in ruling that FedEx could terminate him based upon an ambiguous company policy. Id. at 8-9. Finally, Stewart maintains that FedEx's termination of him violated an important Pennsylvania public policy, namely, the right to bear arms. Id. at 9-15.
This Court has summarized Pennsylvania's at-will employment doctrine as follows.[1]
" In Pennsylvania, absent a statutory or contractual provision to the contrary, either party may terminate an employment relationship for any or no reason." Weaver v. Harpster, 601 Pa. 488, 975 A.2d 555, 562 (Pa. 2009). " [A]s a general rule, there is no common law cause of action against an employer for termination of an at-will employment relationship." Id. at 563.
An employee may bring a cause of action for a termination of that relationship only in the most limited circumstances, where the termination implicates a clear mandate of public policy. In our judicial system, the power of the courts to declare pronouncements of public policy is sharply restricted. Rather, it is for the legislature to formulate the public policies of the Commonwealth. The right of a court to declare what is or is not in accord with public policy exists only when a given policy is so obviously for or against public health, safety, morals, or welfare that there is a virtual unanimity of opinion in regard to it. Only in the clearest of cases may a court make public policy the basis of its decision. To determine the public policy of the Commonwealth, we examine the precedent within Pennsylvania, looking to our own Constitution, court decisions, and statutes promulgated by our legislature.
Id. at 563 (quotation and citations omitted).
Applying this standard, Pennsylvania courts have found actionable exceptions where the employee was terminated for filing a claim for worker's compensation benefits, Shick v. Shirey, 552 Pa. 590, 716 A.2d 1231 (Pa. 1998); for filing a claim for unemployment benefits, Highhouse v. Avery Transportation, 443 Pa.Super. 120, 660 A.2d 1374 (Pa. Super. 1995); for failing to submit to a polygraph test where a statute prohibited employers from so requiring, Kroen v. Bedway Security Agency, Inc., 430 Pa.Super. 83, 633 A.2d 628 (Pa. Super. 1993); for complying with a statutory duty to report violations to the Nuclear Regulatory Commission, Field v. Philadelphia Electric Co., 388 Pa.Super. 400, 565 A.2d 1170 (Pa. Super. 1989); and for serving jury duty, Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (Pa. Super. 1978).
Courts have found no public policy exception where the employee was terminated as a result of sexual discrimination by an employer not covered by the Pennsylvania Human Relations Act, Weaver, supra; for complaining about
Page 428
violations of the Occupational Safety and Health Act, McLaughlin v. Gastrointestinal Specialists, Inc., 561 Pa. 307, 750 A.2d 283 (Pa. 2000); for expressing concerns that the employer's product was unsafe, Geary v. U.S. Steel Corporation, 456 Pa. 171, 319 A.2d 174 (Pa. 1974); for disengaging an illegal surveillance system, Hineline v. Stroudsburg Electric Supply Co., 384 Pa.Super. 537, 559 A.2d 566 (Pa. Super. 1989), appeal denied 524 Pa. 628, 574 A.2d 70 (Pa. 1989); or for complaining about the waste of taxpayer money, Rossi v. Pennsylvania State University, 340 Pa.Super. 39, 489 A.2d 828 (Pa. Super. 1985).
In sum, " an employer (1) cannot require an employee to commit a crime, (2) cannot prevent an employee from complying with a statutorily imposed duty, and (3) cannot discharge an employee when [specifically] prohibited from doing so by statute." Donahue v. Federal Exp. Corp., 2000 PA Super 146, 753 A.2d 238, 244 (Pa. Super. 2000) (quoting Spierling v. First Am. Home Health Servs., Inc., 1999 PA Super 222, 737 A.2d 1250, 1252 (Pa. Super. 1999)). Outside of those categories of our legislature's expression of public policy, a court may find a public policy exception that will sustain a wrongful termination action only if the public policy " is so obviously for or against public health, safety, morals, or welfare that there is a virtual unanimity of opinion in regard to it." Weaver, 975 A.2d at 563.
Mikhail v. Pennsylvania Organization for Women in Early Recovery, 2013 PA Super 36, 63 A.3d 313, 316-17 (Pa. Super. 2013).
From the above it is immediately clear that Stewart's first two arguments warrant no relief. He has no cause of action against FedEx for wrongful termination unless the termination violates public policy. Therefore, it matters not whether FedEx articulated no reason or a bad reason for terminating Stewart's employment, whether its firearm policy is vague, or whether Stewart's gun was on his property or FedEx's property when it was in his glovebox. The only relevant question is whether Stewart has pled that he was terminated for a reason that violates a policy of this Commonwealth that " is so obviously for or against public health, safety, morals, or welfare that there is a virtual unanimity of opinion in regard to it." Weaver, 975 A.2d at 563.
In his complaint, Stewart claimed that his termination was in violation of Pennsylvania's public policy to guard the rights " of citizens of Pennsylvania to protect themselves." Complaint, 8/7/2013, at 5. He averred that this policy was manifest in Article I, Section 21 of the Pennsylvania Constitution, and in 18 Pa.C.S. § 6106. Stewart also referenced in his complaint the decision of the Kentucky Supreme Court in Mitchell v. University of Kentucky, 366 S.W.3d 895 (Ky. 2012). For the following reasons, we hold that Stewart has failed to identify any Pennsylvania public policy which has been violated by his termination.
Article I, Section 21 of the Pennsylvania Constitution provides that the " right of the citizens to bear arms in defence of themselves and the State shall not be questioned." Pennsylvania Constitution, Art. I, § 21. The statute Stewart invokes is a provision of the Crimes Code entitled " firearms not to be carried without a license." 18 Pa.C.S. § 6106. Therein our legislature declared, inter alia, that it is a crime to carry a firearm in a vehicle without a valid license.
This Court has noted that " neither the Second Amendment to the United States Constitution, nor the Pennsylvania Constitution, bestows on any person the right to carry a concealed firearm or transport a loaded firearm in a vehicle." Commonwealth
Page 429
v. McKown, 2013 PA Super 282, 79 A.3d 678, 690 (Pa. Super. 2013). Similarly, it is evident from the language of 18 Pa.C.S. § 6106 that that statute criminalizing the conduct of carrying a firearm in a vehicle without a license does not conversely create a right to carry a licensed firearm in a car.
In Mitchell, the plaintiff was fired for having a licensed firearm in his car on the property of his employer, the University of Kentucky. The Supreme Court of Kentucky held that Mitchell " established that his discharge was contrary to a fundamental and well-defined public policy, i.e., the right to bear arms, as evidenced by existing statutory provisions," in particular K.R.S. 237.106, which provides:
(1) No person, including but not limited to an employer, who is the owner, lessee, or occupant of real property shall prohibit any person who is legally entitled to possess a firearm from possessing a firearm, part of a firearm, ammunition, or ammunition component in a vehicle on the property.
* * *
(4) An employer that fires, disciplines, demotes, or otherwise punishes an employee who is lawfully exercising a right guaranteed by this section and who is engaging in conduct in compliance with this statute shall be liable in civil damages. An employee may seek and the court shall grant an injunction against an employer who is violating the provisions of this section when it is found that the employee is in compliance with the provisions of this section.
Mitchell, 366 S.W.3d at 902 (quoting K.R.S. 237.106).
Stewart points to no Pennsylvania statute comparable to the Kentucky statute at issue in Mitchell. Indeed, as the trial court noted, such legislation had been proposed, but not enacted, in Pennsylvania at the time of Stewart's termination. Trial Court Opinion, 6/24/2014, at 22-25 (discussing Senate Bill 1438 (2011) and House Bill 2243 (2014)). Therefore, the reasoning of Mitchell is inapplicable because, unlike Kentucky's legislature, our legislature has not declared that Pennsylvania public policy is violated by FedEx's termination of Stewart.
Thus, the facts alleged in Stewart's complaint do not establish that FedEx (1) required him to commit a crime, (2) prevented him from complying with a statutorily imposed duty, (3) discharged him in violation of a statute, or (4) otherwise terminated him in violation of a public policy that " is so obviously for or against public health, safety, morals, or welfare that there is a virtual unanimity of opinion in regard to it." Weaver, 975 A.2d at 563. Accordingly, Pennsylvania law does not permit recovery on the facts averred, and the trial court properly dismissed Stewart's complaint.
Order affirmed.
Bowes, Judge joins the opinion.
Olson, Judge concurs in the result.
Judgment Entered.
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The Handkerchief Symbol Timeline in Othello
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08/18/16: Update on Sugar. Sugar has come a long way since first coming to her foster home. She loves to run in the yard now which she used to not know what to do with a freedom run. She also loves attention and comes up when her foster mom is sitting or laying down to get some love--she seems to have never had attention before so she now groans when you rub her face and tummy. She will always probably be skittish so needs a quiet environment that she will not always be startled with loud noises and quick movements. She is probably younger than previously thought as she still runs with the young dogs. She is housebroke and does fine with the other dogs. She does get a little aggravated if the youngest gets too rowdy with her but puts him in his place. She's a sweet girl who deserves some one-on-one attention.
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Sift flour, soda and spices together. Cream shortening and sugar until fluffy. Add eggs and sifted ingredients alternately with sour milk in small amounts. Add nuts and raisins and mix thoroughly. Drop from spoon onto greased baking sheet and bake in oven at 350 degrees F about 12 minutes or until brown. Makes 100.
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April 12, 2012
Assistant Secretary Dann-Messier to Deliver Keynote Remarks at Mountain Plains Adult Education Association Conference
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Director of the Office of Educational Technology Karen Cator to Deliver Keynote Remarks at Ohio State University Annual Conference
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Assistant Secretary Dann-Messier to Deliver Remarks and Join Adult Education Director for Twitter Town Hall at Virginia Association for Adult and Continuing Education Conference
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April 10, 2012
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April 9, 2012
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April 9, 2012
Assistant Secretary Ochoa to Participate in Webinar on the State of Latino College Completion in all 50 States
Eduardo Ochoa, assistant secretary for Postsecondary Education, will take part in an Excelensia in Education webinar on the current status of college completion among Latinos at 10 a.m. on Tuesday, April 10. He will comment on the data and information contained in their release of 50 separate...
April 6, 2012
U.S. Education Department Senior Officials Highlight Administration's Efforts to Make College More Affordable During Visit to North Carolina
U.S. Under Secretary of Education Martha Kanter and White House HBCU Executive Director John Wilson will continue the Obama Administration's discussion on college affordability and the shared responsibility to contain costs during a trip to Greensboro, N.C., on Monday.


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Best Fishing Times: 12:07AM to 2:07AM, and 12:42PM to 2:42PM
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Fishing Deep Creek, AK on 12/8/2016 will be best from 12:07AM through 2:07AM, and from 12:42PM to 2:42PM. If those times won't work for you, 6:19AM to 8:19AM looks promising. Remember to adjust these times based on barometric pressure, and weather changes.


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Brazilian CEOs get all the attention but a quiet Mexican manager obsessive about quality has created a true global champion. Bimbo CEO Daniel Servitje is our Man of the Year.
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August 5, 2012
DONALD SUAREZ, PLAINTIFF,v.MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
1. Plaintiff, Donald Suarez, challenges an Administrative Law Judge's ("ALJ") determination that he is not disabled within the meaning of the Social Security Act ("the Act"). Suarez alleges that he has been disabled since June 1, 2005*fn1 and that his impairments render him unable to work. He therefore asserts that he is entitled to disability insurance benefits ("benefits") under the Act.
2. Suarez filed an application for benefits under Title II of the Act on August 7, 2006.*fn2 The Commissioner of Social Security ("Commissioner") denied Suarez's application, and as result, he requested an administrative hearing. He received that hearing before ALJ Nancy Lee Gregg on November 12, 2008; Suarez appeared with counsel and testified. His wife, Sheila Suarez, and a vocational expert, Jay Steinbrenner, also testified at the hearing. The ALJ considered the case de novo, and on April 28, 2009, issued a decision denying Suarez's application for benefits. Suarez filed a request for review with the Appeals Council, but the Council denied that request on May 12, 2011, prompting him to file the current civil action on September 8, 2011, challenging Defendant's final decision.*fn3
3. On May 18, 2012, the Plaintiff filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The Commissioner followed suit by filing his own motion for judgment on the pleadings three days later. Briefing on the motions concluded July 9, 2012, at which time this Court took the motions under advisement without oral argument. For the reasons set forth below, the Commissioner's motion is granted and Suarez's motion is denied.
4. A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will be reversed only if it is not supported by substantial evidence or there has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). Substantial evidence is that which amounts to "more than a mere scintilla"; it has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
5. "To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams on Behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner's finding must be sustained "even where substantial evidence may support the plaintiff's position and despite that the court's independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's determination considerable deference, and may not substitute "its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
6. The Commissioner has established a five-step sequential evaluation process to determine whether an individual is disabled as defined under the Social Security Act. See 20 C.F.R. §§ 404.1520, 416.920. The United States Supreme Court recognized the validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287, 2291, 96 L. Ed. 2d 119 (1987), and it remains the proper approach for analyzing whether a claimant is disabled.
7. This five-step process is detailed below: First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. § 404.1520.
8. Although the claimant has the burden of proof as to the first four steps, the Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S. at 146 n. 5; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984). The final step of this inquiry is, in turn, divided into two parts. First, the Commissioner must assess the claimant's job qualifications by considering his physical ability, age, education, and work experience. Second, the Commissioner must determine whether jobs exist in the national economy that a person having the claimant's qualifications could perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S. Ct. 1952, 1954, 76 L. Ed. 2d 66 (1983).
9. In this case, the ALJ made the following findings with regard to the five-step process set forth above: (1) Suarez has not engaged in substantial gainful activity since his alleged onset date (R. 47);*fn4 (2) Suarez has several severe impairments, including degenerative disc disease, tears of the inferior crusciate ligament, posterior horn lateral meniscus and posterior horn medial meniscus of the left knee, degenerative changes of the left knee, migraine headaches, allergic rhinitis, and "residuals of knee surgeries" (Suarez has had surgery on both his ACLs) (id.); (3) Suarez does not have an impairment or combination of impairments that meets or medically equals the criteria necessary for finding a disabling impairment under the regulations (id.); (4) since June 1, 2005, Suarez has not been able to perfrom his past relevant work as a firefighter; (5) Suarez retained the residual functional capacity ("RFC") to perform the full range of sedentary work as defined in 20 C.F.R. 404.1567(a), (id.), and considering Suarez's age, education, work experience, and RFC, he is capable of making a successful vocational adjustment to perform other work that exists in significant numbers in the national economy (R. 55.) Ultimately, the ALJ concluded that Suarez was not under a disability as defined by the Act from June 1, 2005 through the date of her decision. (R. 56.)
10. Suarez raises two intertwined challenges to the ALJ's decision. First, Suarez argues that the ALJ erred by failing to give controlling weight to the opinions of his treating physicians, Dr. Andrew Cappuccino and Dr. William Douglas. Relatedly, Suarez argues that, in considering the severity of his migraine headaches, the ALJ substituted her own opinion for that of the treating physicians.
11. Under the "treating physician's rule,"*fn5 the ALJ must give controlling weight to a treating physician's opinion when that opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record." 20 C.F.R. § 404.1527(d)(2); see also Green-Younger v. Barnhart, 335 F.3d 99 (2d Cir. 2003); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000).
12. Suarez points to the opinion of Dr. Cappuccino, Suarez's surgeon, who, in a letter addressed to Dr. Douglas, dated January 7, 2010, declared Suarez "completely and totally disabled." (R. 400.) Supporting this judgment, according to Suarez, are several reports indicating degeneration in Suarez's cervical spine. Suarez also notes that Dr. Cappuccino recommended a second spinal surgery (his first was in 1997) due to continuing problems at his C3-5 vertebrae. Suarez, however, remains opposed to further surgery, believing that the first provided no relief.
Dr. Douglas made a similar finding regarding disability: in January, 2007, in a form completed pursuant to Suarez's application for benefits, Dr. Douglas opined that Suarez was not capable of performing sedentary work due to "severe h/a [headaches]."
A finding by a medical source, however, that a claimant is "disabled" or "unable to work" does not mean that the Commissioner must determine that the claimant is disabled within the meaning of the Act. See 20 C.F.R. § 404.1527(e); see also Green-Younger, 335 F.3d at 106 ("A treating physician's statement that the claimant is disabled cannot itself be determinative") (internal citation and quotation marks omitted). Rather, to be entitled to controlling weight, the treating physicians' opinions must be "well-supported by medically acceptable clinical and laboratory diagnostic techniques and [] not inconsistent with the other substantial evidence in [the] record." 20 C.F.R. § 404.1527(d)(2).
Here, although all parties agree that Suarez has had spinal and knee injuries, and that he suffers from migraine and cervicogenic headaches, the record is inconsistent as to whether those issues preclude sedentary work. For example, in the same report that Dr. Douglas declared Suarez unable to perform sedentary work, he indicated that Suarez could occasionally lift and carry, could stand and walk less than two hours per day, and had no limitation in sitting.*fn6 These findings are consistent with sedentary work as defend by the Act:
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 20 C.F.R. § 404.1567(a)
Further, consultive examiner John Schwab, D.O., described Suarez's prognosis as "fair," noting that Suarez appeared "in no acute distress," and found only mild restrictions in head movement and his ability to kneel. (R. 316.) A non-physician examiner for the Commissioner also found that Suarez could perform duties consistent with sedentary work.
(R. 327.) Specifically, he found that Suarez had no limitations in pushing/pulling, that he could occasionally lift and/or carry 20 pounds, frequently lift and/or carry ten pounds, stand and/or walk about six hours per day, and sit less than six hours per day. (Id.) The ALJ was not, therefore, required to give the opinions of Drs. Cappuccino and Douglas controlling weight.
13. Although Suarez notes that Dr. Douglas' opinion is uncontradicted, ALJ Gregg did not disagree with Dr. Douglas' opinion that Suarez suffered from headaches; rather, she simply disagreed with his ultimate opinion regarding his ability to work. This is the ALJ's prerogative. See SSR 96-5P, 1996 WL 374183, at *2 (S.S.A. 1996) (whether an individual is "disabled" under the Act is not a medical issue but is an administrative finding that is dispositive of a case). "[T]reating source opinions on issues that are reserved to the Commissioner are never entitled to controlling weight or special significance." Id. While the treating physicians' opinions on this matter should not be disregarded, there is no indication that they were. Instead, ALJ Gregg considered these opinions-according them "some weight"-in conjunction with the collective evidence and made a determination that Suarez was not disabled, which she was free and required to do under the Act as the presiding judge. See Taylor v. Barnhart, 83 Fed. App'x 347, 349 (2d Cir. 2003) (summary order) (treating physician's belief that a plaintiff is "totally disabled" is not entitled to any weight since that determination is reserved for the Commissioner).
14. While Suarez relies heavily on evidence of his disc herniations and the presence of headaches, there can be no serious dispute that there is a dearth of objective, consistent evidence that Suarez could not complete the full-range of sedentary work with these impairments in mind. Thus, Suarez's application boils down to subjective complaints of pain-pain related to his spinal and knee injuries and pain related to his headaches. The ALJ found that Suarez's impairments could reasonably be expected to cause some degree of the alleged symptoms, but that his statements concerning the intensity, persistence, and limiting effects of these impairments were not entirely credible. In this vein, contrary to Suarez's argument, (see Pl.'s Reply Br., at 6; Docket No. 17), the ALJ clearly considered the debilitating effects of Suarez's headaches. Indeed, she noted that "one of the claimant's main complaints appears to be related his headaches." (R. 53.) The ALJ was permitted, indeed required, to make the determination regarding the effects Suarez's pain had on his ability to work. See Bowen, 859 F.2d 255 at 260 ("As fact-finder, an ALJ is free to accept or reject testimony.") And this Court finds no error therein, as it is not inconsistent with the record.
For example, although Suarez contends that he is unable to perform even sedentary work, physical therapy notes from March 16, 2006 indicate that he was able to ride a stationary bike at the gym for five miles per day. (R. 283.) In fact, those notes indicate that he was able to perform a wide range of physical activities, including squatting and hamstring curls. (R. 283-285.) In addition, this Court notes, as did the ALJ, that Dr. Michael Battaglia, a neurologist, opined that his more frequent, daily headaches were associated with analgesic abuse, and thus may be reduced with more appropriate medication. (R. 311)
ALJ Gregg properly credited Suarez's testimony to the extent that he suffers from a certain degree of pain due to his various impairments, and, based on evidence such as that described above, she also made a reasonable determination that the pain should not preclude him from performing sedentary work.
15. Accordingly, having found that ALJ Gregg's opinion to be supported by substantial evidence, Suarez's motion for judgment on the pleadings is denied and the Commissioner's motion is granted.
IT HEREBY IS ORDERED, that Defendant's Motion for Judgment on the Pleadings (Docket No. 9) is GRANTED.
FURTHER, that Plaintiff's Motion for Judgment on the Pleadings (Docket No. 12) is DENIED.
FURTHER, that the Clerk of the Court shall close this case. SO ORDERED.
William M. Skretny
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|This is a discussion on $25 NLHE 6-max: All-in with QQ pre-flop vs. high 3-bet% within the online poker forums, in the Cash Game Hand Analysis section; Villian Stats (VPIP/PFR/AF): 22/16/2.75 Ok, first of all, apologies if I'm posting in this HA forum a little too much, I recently posted another QQ hand
$25 NL HE 6-max: All-in with QQ pre-flop vs. high 3-bet%
Villian Stats (VPIP/PFR/AF): 22/16/2.75
Ok, first of all, apologies if I'm posting in this HA forum a little too much, I recently posted another QQ hand here which was all pre-flop, where I folded to a 3-bet.
Now this is a pretty similar situation, and I 4-bet, but I'm not sure if what I did next was ok. The guy's 3-bet percentage was 9% at the time, but in my pokertracker now it says it's only 6.67%, and I only have 143 hands on villain, but anyway, here it is:
View hand 767933
The Official DeucesCracked.com (http://www.deucescracked.com/?referrer=converter_phpbb) Hand History Converter (http://www.thehandconverter.com)
Hero (CO): $33.57
Pre Flop: ($0.35) Hero is CO with Q Q
UTG raises to $0.75, Hero calls $0.75, BTN raises to $3.35, 3 folds, Hero raises to $11.15, BTN raises to $25 all in, Hero calls $13.85
Flop: ($51.10) A K K
Turn: ($51.10) 7
River: ($51.10) 7
Should I have folded? Should I have 4-bet a little less to make a fold a bit easier?
My reasoning: He was on the button, he likes to 3-bet, particularly with 1.85 already in the pot, so easy 4-bet, then when he goes all-in I have to spend 13.85 to win 36.15 (right?) so I guess the pot odds just seemed too tempting...
Looking at it now, I only called from UTG+1, I think I was actually trying to induce a 3-bet, and maybe the UTG was pretty tight and his opening range from that position was pretty small and we were like 125BB deep... Guess I should've 3-bet maybe... But then perhaps I'd have lost some value since 3-betting UTG from UTG+1 is a pretty strong move...?
Anyway, I'll leave it to you guys to fill me in, cheers!
Its not an easy 4bet
He isnt 3betting an MP2 open and a CO call a Co open and a BTN call. He is 3betting an UTG open with an UTG+1 call so you should assume his 3betting range is stronger. If you put him on JJ+ AK then QQ is slightly behind that range and even further behind his "I'm not folding to your 4bet range" You dont fold out enough hands to sow a profit from your fold equity and if he dosent fold you dont win enough to show a profit from getting it all in.
9% 3bet 6% 3bet... he isnt 3betting all that wide and he certainly isnt sticking around after a 4bet with a wide range. You were a little too quick to lable him as a wide 3better (you have less than 200 hands on him).
Flatting UTG is bad! You are not guaranteed to play in position.
You give fantastic odds for people to overcall and play large MW pots where QQ is a hand that suffers from RIO.
You also put yourself in this position when 3bet.
So whilst I would flat QQ on the BTN or possibly the CO if the BTN is a nit I would never flat QQ from EP or MP.
I will call shoves with 66.. I will shove with complete air.
However I am also very aware that the average player is playing so tightly that its more profitable to let go than it is to get the money in.
Thats why I factor in the position of the original raiser when putting a villian on a range.
What people seem to forget is just how often 4bets need to work in order to show a profit. You can 3bet and 5bet/shove much lighter than you can 4bet.
3bets have tonnes of fold equity and shoves guarantee a SD with a lot of dead money in the pot but 4bets often win small pots and end up against a range that crushes them when shoved over.
re: Poker & $25 NLHE 6-max: All-in with QQ pre-flop vs. high 3-bet%
As yourself this: why do people open up their 3bet range?
Is it not more often a means of attacking a wide CO range or defending from the blinds?
In this situation this isnt happening, the 3bet it attacking an UTG raise. Surely you have to think that denotes a stronger range than when attacking a CO range.
I think he needs to 3 bet the UTG open raise. Only thing calling does is allow more people to call. My play would be 3bet to $2.25ish. Now if the Button 4 bets, it can't be too big of a bet, maybe $8. So now you have a decision to make. You can fold saying I only have $2.25 invested with a vulnerable hand getting pressured. Or you ship it on him and make him play for a decision to play for the rest of his $17. I think either decision is fine.
I think you put yourself in a bad spot by calling and giving the rest of the table the opportunity to take command of the hand. So now your put to a decision for your most of your stack with QQ, when you could be the one putting them to a decision. It's an uncomfortable feeling calling off your stack with QQ, I try to avoid it.


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Sometimes I just have to draw. I don't always know why. I see something, I grab a pencil, pen or whatever is at hand and draw. 265 more words
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A year ago when I started writing on this forum, my first post was The Alphabet Wall, a project so creatively fulfilling that it propelled me to start sharing my projects more publicly in the hopes of inspiring others to create things a little outside of normal perimeters. 534 more words


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On October 27th SCES welcomed Spencer County's own, Laura Jones, center, who is the current Miss Kentucky. Jones went on to be in the top 12 of the Miss America competition. She now travels the state to share the importance of a healthy lifestyle.
On October 13th SCES celebrated their students during Toss It Thursday. After participating in various activities, many students were recognized for scoring Proficient or Distinguished on KPREP.
Thousands of bats lie, heaped high on cave floors, sometimes as many as 10,000 at one site. Fragile, winged mammals that have succumbed to the ravages of white nose syndrome and dropped, flightless, from their roosts on cave ceilings. Biologists report coming upon this tragic scene and finding, among the piles of tiny corpses, living bats, struggling to survive hibernation by burrowing among the bodies of their colony for residual warmth.
There are certain trees that consistently remain my favorites. When I think about their common characteristics, one thing stands out: the bark. Interesting bark is always there, whether the tree is leafing out, blooming, or showing dramatic fall color. Bark remains constant whether the tree is good, bad, pretty or ugly.
Spencer County Middle School students got a break from the books on Friday as they celebrated the school's recent test scores that once again earned them a "Distinguished" designation. The students gathered in the gym for a celebration, followed by a concert and a dance that made for a much more relaxed afternoon. They call the event Grizzly Fest and it recognizes the classroom achievements. One teacher described it as an Academic Pep Rally.
Racking up over 600 yards of offense and holding their opponent to less than half that, the Spencer County Bears played one of their best games Friday night in a 37-14 win at Henry County.
The timing couldn't be better, as the postseason begins this Friday night and the Bears were coming off a bad loss to Shelby County two weeks ago followed by a bye week. It was good to recapture the winning feeling.
Spencer County Special Olympic team competed in the 2016 Regional competition at Kingpin Bowling Lanes in J-town last weekend. Out of the 31 athletes that practice with the team every Monday they took 25 athletes and 5 unified partners to the Regional games and represented Spencer County proudly. All will now go on to compete in the State Competition in Louisville next month with over 3,000 athletes from across the state.
The near drought conditions of the fall season seem to have lengthened the peak of the changing of the leaves. We still have a couple of good weekends left of the beautiful fall colors.
Paddling a stream during the peak of fall colors is the best way to enjoy this annual spectacle of nature. The brown, orange, red and yellow leaves soar above your head and line the tops of rocky, river bluffs. You see few others on the water at this time of year, lending peaceful solitude to your paddle.
Edgewater Resort may have a new owner.
Javin Montgomery, who currently owns Taylorsville Lake Marina, along with the Settlers Trace gas station and store near the entrance to the marina, submitted a winning bid on the resort during a sale conducted earlier this month.
Jerry Sewell, who manages the marina and other properties owned by Montgomery, confirmed that they did place the high bid, although he refused to give the amount.
"We've got it under contract. That's all I can tell you at this time," said Sewell.
Copyright © 2016
The Spencer Magnet is your source for local news, sports, events, and information in Spencer County, KY and the surrounding area.


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"Hi, I'm Peaches" AKA Cuddlesworth or Piggy, because I eat so much, I am lovable and cuddly. I would like nothing less than to be attached to you 24/7…$1,500
These canaries belong to my Aunt and she asked for my help to sell them because of there moving situation and family dog. Both males and females are available…$45
For Sale: . Blue Fallow, split Dilute, Pastel, 33% CHANCE split Albino, ??% CHANCE carries Pied*. FEMALE, my own baby, parent-raised. SEMI-TAME (sill…$210
FOR SALE: . PROVEN Blue Fallow split Dilute, Pastel, 25% CHANCE split Albino MALE, parent-raised, my own baby, now an adult NOT TAME (breeder) ID…$120
FOR SALE: . Green split Turquoise(OR*)Blue, Dilute, ??% CHANCE split Pied**, 50-66% CHANCE Fallow***, 50-66% CHANCE -ino***. MALE, parent-raised, …$100
FOR SALE: . Blue split Dilute Fallow Marbled FEMALE, my own baby, parent-raised, NOT TAME (very timid) Band: CA 16 LOP 136 Hatch: ~2016-06-18 Pictures…$115
For Sale: . *Turquoise Pied Dilute split Fallow with 66% CHANCE split Albino* FEMALE, my own baby, parent-raised, NOT TAME Band: CA 16 LOP 104 Hatch…$250
We currently have 4 young Blue Indian Ringneck Parrots. They are parent raised and will make good pets or future breeders. 909 957 6535$350
estoy vendiendo los 2 pericos. son African Ringneck Parrots. solo vendo la pareja$240
I'm selling my 2.5 yrs old scarlet macaw for $2000 with cage and toys. she is very friendly and not too loud. the reason why I'm planning to sell it is…$2,000


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Fondue Sets
Kitchen & Home › Cookware & Bakeware › Fondue Sets
Showing 1 - 24 of 149 Results
- Brand: Nouvel
- Model Number: 311240
- Brand: Swissmar
- Model Number: F66709
- Brand: Steak Clamp
- Material: Stainless Steel
Cook foundue Set (Red)
- Brand: INVICTA
- Model Number: CFS1135
Cook Fondue Set (Black)
- Brand: INVICTA
- Model Number: CFSBlack
Swissmar Nordic Foldable Candlelight Raclette, Black
- Brand: Swissmar
- Model Number: KF-00536
Swissmar Alpine Portable Candlelight Raclette, Stainless Steel
- Brand: Swissmar
- Model Number: KF-00436
Emile Henry Made In France Flame Cheese Fondue Set, 2.6 quart, Burgundy
- Brand: Emile Henry
- Model Number: 349922
Mastrad A47537 Fondue Set, Little Hearts
- Brand: Mastrad
- Model Number: A47537
Mastrad A47534 Fondue Set, Pompoms
- Brand: Mastrad
- Model Number: A47534
- Brand: Mastrad
- Model Number: A47536
- Brand: Mastrad
- Model Number: A47535
White Cheddar Cheese Powder - cheese fondue anytime (2 Ounce)
- Brand: Tech Organea- White ...
- Model Number: Make Cheese F...
- Brand: Godskitchen
- Colour: Multi
Quality Cake Modelling Kit Set Of 8 Pc16 Fondant Tool Food Grade
- Brand: Haven
- Model Number: 13111
"Love You More Than Chocolate" Fondue Pot for 2 with Forks, Gift Boxed
- Brand: Gourmet du Village
Battery Operated Cake Frosting Deco Icing piping Pen Christmas Diwali New Year Birthday Anniversary Cake Muffin Chocolate Cookie Decorating Frosting Pen
- Brand: Bulfyss
- Model Number: YSFROSTPEN2
- Brand: Nouvel
- Model Number: TC22/13
- Brand: Nouvel
- Model Number: TC16/14
Nouvel TC13/14 7-Piece Fondue Set, Pink/White
- Brand: Nouvel
- Model Number: TC13/14
- Brand: Nouvel
- Model Number: TC9/14
- Brand: Cuisinart
- Model Number: FP-115RS
Cuisinart FP-115WS 13-Piece Cast Iron Fondue Set, White
- Brand: Cuisinart
- Model Number: FP-115WS
- Brand: Roshco
- Model Number: 58914
Buy Fondue Pots and Sets Online on Junglee
Fondues usually come in three traditional varieties: mat, cheese, and chocolate. If you are planning to throw a party soon, you have come to the right place to look for your fondue pots and sets. Make your party lively with a delicious treat of either chocolate or melted cheese fondue. Our large collection of fondue pots, fondue sticks, chocolate fondue fountain, cheese fondue set, and spring fondue set, among others can make your party memorable.
Fondue sets are designed keeping certain factors and criteria in mind. Using a particular fondue set for which it was not designed can have the opposite effect on your preparation. We stock a large variety of fondue pots, fondue forks and all other fondue items that you may need to prepare lip-smacking fondue.
Fondue pots are the most important part of any fondue set. We know this and as such add to your cooking pleasure by offering under one roof a large variety of fondue pots from some of the leading manufacturers and sellers. Fondue sets from well-known brands such as Beka Cookware, Bon Chef, Boska Holland, Swissmar, and Wilton, among others, can be found on Junglee.Chocolate fondue pots
Chocolates are a popular treat anywhere in the world. Chocolate fondues as such are often considered to be the lifeline of any party or event. Chocolate fondue pots are usually smaller than normal fondue pots and generally make use of a tealight to keep the melted chocolate at the right temperature. Chocolate fondue pots made of ceramic, porcelain, and earthenware, among other materials, are readily available at Junglee. Compare, choose, and buy one that you think is most likely to complement the occasion.Cheese fondue pots
Cheese fondue pots require higher temperature to keep the melted cheese from solidifying again. Earthenware is the preferred material for cheese fondue pots. Also, these pots have flat bottoms and large openings. We at Junglee cater to your specific needs and requirements by stocking a large variety of fondue sets like cheese fondue pots, meat fondue pots, electric fondue pots, and hot oil fondue pots, among others. We also have in stock dishwasher safe fondue pots and sets for your added comfort and convenience.Why Junglee is the ideal online shopping destination
Online shopping can be easy as well as complicated. The availability of a large number and variety of products gives you a potentially limitless choice. This, however, can also be a source of complication and confusion. You are often confused as to what type of product is best suited for your needs.
Junglee, by virtue of being a leading online comparison website, gives you freedom of choice without adding to your confusion. Different online sellers are brought on a single platform for your convenience. You can compare the prices of different products as well as their features and specifications without having to waste your time and energy browsing through individual websites.
The convenience that comes with the availability of a large array of products is further augmented by Junglee's helpful search and filter option. You can make use of this advanced search feature to quickly look and find the fondue set that comprehensively matches your requirements. Things only get better from here with a helpful and professional team of customer care executives and up-to-date information about the newest arrivals and latest discounts.Reviews and ratings guide you at every stage
Can I use my fondue pot for more than just fondue? what materials should I opt for? what size of fondue set will help me at my party? are some of the common questions that keep playing in our minds. Junglee.com has the largest single database of customer reviews in India. This simplifies things for you to a considerable extent as the experience of previous buyers and sellers can guide you to opt for a set that you believe answers most aptly to your needs. Seller ratings awarded by genuine buyers of the products help get you rid of the concerns you may have about the trustworthiness of a seller.
Fondue as a food item during parties and family get-togethers enjoy widespread popularity. A wide array of fondue pots and fondue sets made of different materials are available in various sizes at Junglee to help you make your mark as a fondue specialist.
- ‹ Kitchen & Home
- ‹ Cookware & Bakeware
- Fondue Sets


text: firstname.lastname@example.com NPR Digital Services RSS Generator 0.94 Hear provocative voices and passionate discussion as Tom confronts the stories that are at the center of what is important in the world today. Leaving no perspective unchallenged, On Point digs past the surface and into the core of a subject, exposing each of its real world implications. For more on the show go online to: onpoint.wbur.org NPR Digital Services RSS Generator 0.94 On Point Wed, 07 Dec 2016 09:06:56 +0000 On Point http://tpr.org Empty RSS feed.


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NEW YORK (AP) — New York City police have once again searched the site of a former grocery store for evidence in the 1979 disappearance of a 6-year-old boy.
NYPD spokesman Paul Browne confirmed investigators returned Wednesday to where an alleged abductor once worked. He said the search wasn't based on new information, but wouldn't elaborate.
The FBI, which also has investigated the case of Etan Patz (AY'-tahn PAYTS'), wasn't involved.
Police have said Pedro Hernandez of Maple Shade, N.J., told investigators he lured the boy into the shop with the promise of a soda. He allegedly said he led the child to the basement, choked him and left his body in a bag of trash about a block away.
His attorney has described Hernandez as bipolar and schizophrenic, with a history of hallucinations.


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907 - 08/13 - Notice of Arrival/Departure Changes - USA
- Date: 23/08/2013
Bulletin 907 (40 kB)
907 - Chinese Version (155 kB)
907 - Simplified Chinese (154 kB)
The United States Coast Guard (USCG) will no longer be accepting old versions of the electronic Notice of Arrival Departure (NOAD).
As of the 13th August 2013, the USCG will no longer accept Notice of Arrival/Departure (NOAD) Workbook (Ver. 6.0) as well as all other prior USCG NOAD workbooks, and all non-USCG NOAD workbooks.
From the 22nd October 2013, they will also not accept Notice of Arrival/Departure (NOAD) InfoPath Template 6.0 or 6.1, Workbook 7.0, and OCS Notice of Arrival (NOA) Workbook 1.0.
Members are advised to ensure that they are using NOAD InfoPath Template 6.2.1, NOAD Workbook 7.1 or OCS Notice of Arrival (NOA) Workbook 1.1 as soon as possible.
Current workbooks may be downloaded from the Downloads section of the NVMC website.
The USCG requests that the Workbooks are completed electronically and then sent via email or imported into the eNOAD web application. Alteration of the official workbook could result in significant delays in processing.
Source of information:
United States Coast Guard
National Vessel Movement Center
Loss Prevention Department
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US VRP Compliance
With effect from 30th January 2014 non-tank as well as tankships calling at US ports will be required to submit VRPs. For Club and other resources to assist in compliance click here
International Environmental compliance
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