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Online College
About the Online College
From the moment it opened its doors in 1939, as a training center for teachers and educators in the kibbutz movement, Kibbutzim College in Tel-Aviv has been at the forefront of progressive education in Israel. In dialogue with advanced methods of teaching and learning developed in many parts of the world and as an outcome of independent research of the faculty, Kibbutzim College has adapted new pedagogies to the needs and reality of local students and schools.
The digital age made it possible to open new opportunities to people who previously didn't have access to our programs. Online teaching and learning break boundaries and bring global populations to our online classes. Students from all over the world are able to participate in our programs and our regular students can decide whether to drive to Tel Aviv or stay at home and hear the lecture from a distance. Students can actively participate and ask questions from anywhere and come at their convenience to the lovely, green campus and enjoy its on-site facilities.
Since 2009, the Kibbutzim Online College has been offering a growing number of certificate programs and online courses in various disciplines. Our far-reaching vision involves making available to people everywhere an ever-increasing number of degree and certificate programs presently taught exclusively face-to face. This vision demands that we develop and perfect pedagogies especially suited to teaching and learning in online environments. Many of the courses sponsored by the Center for International Studies are based on existing courses and programs. Others have been newly developed in cooperation with the disciplinary departments to meet the needs of a global population and have been designed for an online environment.


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Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. NATHAN M. COHEN, Judge, presiding. Affirmed.
Two indictments were returned against Juan Tolentino and Robert Medino. One charged them with the robbery of Robert P. O'Connor, the other with the robbery of John R. Logan. They entered pleas of not guilty and waived trial by jury. The indictments were tried together. The trial court found them not guilty of either robbery but found them guilty of "the lesser included offense of theft" of the property of O'Connor. They were found not guilty of theft as to Logan.
Tolentino was sentenced from three to seven years in the penitentiary and this appeal is by him alone. He contends that his conviction should be reversed because (1) the trial court's finding that he was guilty of theft is inconsistent with the court's own explicit findings of fact and (2) the indictment was invalid.
In the early morning of January 12, 1964, O'Connor and Logan spent four hours drinking in a tavern on West Madison Street, Chicago. When the tavern closed at 5 a.m. they went to a restaurant at Halsted and Madison Streets and stayed there for a half hour. When they left the restaurant they walked west on Madison. O'Connor had $40 and some small change on his person; $34 of the $40 was in his key case. Logan had about $45 with $40 of that being in a separate pocket.
O'Connor next remembered waking up in a hospital. Logan saw O'Connor struck in the back of the head and he was struck in the front of the head at the same time. He also came to in the hospital. O'Connor had a cut on the side of his head and Logan had a cut on the front of his head which required 17 stitches. Neither had seen the assailants nor the instruments with which they were struck. O'Connor was missing his key case, the money therein and some change; Logan was missing $5 or $6 in currency.
Two Chicago police officers were driving eastward on Madison at about 5:30 a.m. As they approached Halsted they saw two men bent over two other men lying on the sidewalk on the northwest corner of the intersection. There was no one else in the vicinity. The two men on their feet were Tolentino and Medino and the two prostrate, bleeding men were O'Connor and Logan. The officers observed Tolentino going through Logan's pocket and saw him hand something from the pocket to Medino. The two ran when the officers approached. Immediately prior to being taken into custody, Tolentino threw some money to the ground. He was searched and the money thrown on the ground together with the money on his person totaled $3.04. He had blood on his hands. Medino was also apprehended and searched; a key case containing $34, $12 in currency and some change were found on his person. The victims were taken to the hospital and when they regained consciousness O'Connor identified the key case found on Medino and the $34 as his. Two hours later the officers searched the area where the crime was committed but found no weapons.
Tolentino testified that on the morning of January 12, 1964, he had been drinking beer in West Madison Street taverns and that from 4:30 to 5:00 a.m. he had been with a friend, Lorenzo Ramirez. He said they got in Ramirez' auto to drive to the south side but that he changed his mind and they returned to Madison and Halsted, where Ramirez parked his auto and waited while he went to get some coffee. He related that on his way to the restaurant he observed a fight between four persons at the corner. He said he watched the fight for 15 minutes, during which time two men knocked down and kicked the two complaining witnesses and then ran off. He denied striking Logan and O'Connor, denied going through their pockets and stated that the first time he saw Medino was when they were arrested.
Ramirez corroborated Tolentino's testimony in part. He testified that he met him in a tavern and that Tolentino was drunk at the time. He said they left the tavern at 5:00 a.m., drove a few blocks and turned around and went to Madison and Halsted Streets. He said he waited in his car for 15 minutes and when Tolentino did not return he went home.
Medino denied knowing Tolentino. He said he was in the restaurant on the corner, noticed four men fighting and went outside to watch. Two of the four men were Logan and O'Connor. He said he did not see Tolentino in the fight nor did he see Tolentino standing next to him when he bent over to assist the victims. He explained that he ran when the police approached because he couldn't afford to be investigated.
It is argued that the court was inconsistent in finding the defendant guilty of theft and not guilty of robbery, and in finding him guilty of theft from O'Connor and not guilty of theft from Logan. In making these findings the court gave the defendant the benefit of every doubt. Where the record contains evidence upon which a finding of theft may be made, the fact that the evidence would have justified the court in finding the defendant guilty of robbery is not a matter of which the defendant can complain. The record also would have justified a finding of guilty of theft from Logan. The defendant cannot complain that he was found not guilty of stealing Logan's money when he could have been found guilty of doing so. O'Connor's key case and the $34 within it were more readily identifiable than the currency lost by Logan, and the court resolved any doubt in favor of the defendant by finding him guilty of theft from O'Connor only.
Although the key case was found on Medino, the evidence showed Tolentino's complicity in the crime. A person is legally accountable for the conduct of another when during the commission of an offense, with the intention to facilitate such commission, he aids or abets such other person in the commission of the offense. Ill Rev Stats 1963, c 38, par 5-2; People v. Valentine, 60 Ill. App.2d 339, 208 N.E.2d 595 (1965). Both Tolentino and Medino were seen hovering over the robbery victims; Tolentino was seen going through the pockets of one of them; he passed something to his confederate, fled when he saw policemen coming and had blood on his hands. The evidence established his guilt of theft from O'Connor as much as it did Medino's, from whose person O'Connor's possessions were recovered.
The court's findings were not inconsistent with the evidence and they were not inconsistent with the indictment. The court found the defendant "guilty of the crime of theft . . . being a lesser included offense in indictment 64-603," and specifically found him guilty of the "offense of theft by obtaining unauthorized control over the property of Robert O'Connor, being $34 in United States currency and a key case taken from him . . . in violation of Chapter [sic] 16-1, Paragraph A, Chapter 38 of the Illinois Revised Statutes 1963." In determining the meaning of a finding of guilty the entire record will be searched and all parts of it interpreted together. Cf. People v. Bailey, 391 Ill. 149, 62 N.E.2d 796 (1945). From the sentence imposed (three to seven years in the penitentiary) it is obvious that the "lesser included offense" found by the court was not just the theft of $34 and a key case, but the theft of this property from the person of O'Connor. The defendant's sentence was in conformity with the penalty provided for this aggravated form of theft. Ill Rev Stats 1963, c 38, par 16-1.
The difference between theft from the person and robbery lies in the force or intimidation used in robbery and the absence of such force or intimidation in theft. People v. Ryan, 239 Ill. 410, 88 N.E. 170 (1909). An indictment may be so drawn as to charge in one and the same count the offense of robbery and also the offense of theft, and the defendant may be convicted of either offense, according as it may be shown by the evidence, and a description and value may be alleged and proved which would be necessary in a charge of theft but would be immaterial on a charge of robbery and could be rejected as surplusage on that charge. People v. Keene, 391 Ill. 305, 63 N.E.2d 509 (1945); People v. Rusk, 348 Ill. 218, 180 N.E. 863 (1932). The indictment charged that the defendants:
". . . committed the offense of robbery in that they, by the use of force and by threatening the imminent use of force, took thirty-four dollars . . . and a key case from the person . . . of Robert P. O'Connor. . . ."
The indictment as drawn, although in a single count, charged robbery, theft and an aggravated form of theft theft from the person. It charged robbery by alleging the use of force in the taking of the property; it charged theft by describing and alleging the value of the property taken, and it charged theft from the person by alleging that the property was taken from the person of O'Connor. The lesser offenses of theft and theft from the person were included in the charge of robbery and came within the purview of the statute which defines an "included offense" as one which:
"(a) Is established by proof of the same or less than all of the facts or less culpable mental state (or both), than that which is required to establish the commission of the offense charged. . . ." Ill Rev Stats 1963, c 38, par 2-9.
There is no merit to the defendant's remaining contention that the indictment is invalid because it failed to specify the time and place of the offense. People v. Blanchett, 33 Ill.2d 527, 212 N.E.2d 97 (1965).
The defendant was properly convicted of the offense of theft and properly sentenced for the aggravated offense of theft from the person. The judgment will be affirmed.
SULLIVAN, P.J. and SCHWARTZ, J., concur.
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Arindam Cahudhury
Arindam Cahudhury - Total results - 1
Updated : Feb 16, 2013
By : Anant Rangaswami
Category : India
IIPM strategy of blocking web sites is backfiring
IIPM's court order to block several URLs involving the institute has boomeranged. The media has panned it and social media is livid. HRD Minister Shashi Tharoor has also got into the act to oppose the blockade #social media #IIPM #Shashi Tharoor #Media Watch #URLs #Arindam Cahudhury #UGC


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I've been talking to this guy for months now, and he always tells me when I ask him how he feels about whats happening is "maybe in a few months, the timing is right"
we barely text anymore like we used to, but I told him its okay to end it if he isn't feeling it and guess what line he hits me with? "Im really busy / this is a bad time for me, maybe in a few months"
- Yes he is100% (5)100% (5)100% (10)Vote
- No he is not0% (0)0% (0)0% (0)Vote
And you are? I'm a GirlI'm a Guy


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The Romance of Food(1984)
A non fiction book by Barbara Cartland
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United States District Court, E.D. New York
August 28, 2014
MICHAEL FONTANAROSA, Plaintiff,v.CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.
MARGO K. BRODIE, District Judge.
Plaintiff Michael Fontanarosa filed the above-captioned action seeking review pursuant to 42 U.S.C. § 405(g) of a final decision of Defendant Carolyn W. Colvin, acting Commissioner of Social Security, denying his application for disability insurance benefits. Defendant moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, claiming that the Commissioner's decision is supported by substantial evidence and should be affirmed. Plaintiff cross-moves for judgment on the pleadings, arguing that Administrative Law Judge Patrick Kilgannon ("ALJ") failed to satisfy his duties in several aspects: (1) the ALJ failed to address the evidence of Plaintiff's treating physician; (2) the residual functional capacity determined by the Commissioner is not supported by substantial evidence; and (3) the ALJ did not correctly assess Plaintiff's credibility. For the reasons set forth below, Defendant's motion is denied and Plaintiff's motion for judgment on the pleadings is granted.
I. Background
Plaintiff was born in 1958. (R. at 39.) Plaintiff filed an application for disability insurance benefits on April 27, 2010, because of his depression, dizziness due to transient ischemic attack, [1] torn menisci and cervical and lumbar radiculopathy. ( Id. at 22, 135.) Plaintiff's application for disability benefits was denied. ( Id. at 22.) Thereafter, Plaintiff requested a hearing, which was held on October 11, 2011, before the ALJ. ( Id. ) At the hearing, Plaintiff and a vocational expert testified. ( Id. ) By decision dated October 26, 2011, the ALJ found that Plaintiff was not disabled. ( Id. at 29.) On April 9, 2013, the Appeals Council denied review of the ALJ decision. ( Id. at 1-5.)
a. Plaintiff's testimony
Plaintiff graduated from high school in 1976. ( Id. at 39-40, 136.) He is single, without employment or income, receives food stamps, and lives with his parents in Staten Island, New York. ( Id. at 39, 108)
Plaintiff testified that his left knee and constant dizziness constitute his main medical impairments. ( Id. at 43.) The dizziness results from a "clogged artery in [Plaintiff's] head." ( Id. ) Plaintiff has undergone two surgeries, one for his knee in the 1990s and another for his shoulder in the late 1980s. ( Id. at 43-44.) Plaintiff was being treated by an orthopedist, Dr. Suarez, and a neurologist, Dr. Krishna. ( Id. at 44.) Plaintiff used to attend physical therapy but lost coverage for such treatment. ( Id. ) Plaintiff received no mental health treatment. ( Id. ) Plaintiff, at the time of the hearing, was taking Plavix, Xanax, and Percocet. ( Id. at 48.)
Plaintiff testified that he is "really limited" and "didn't do much" due to his pain and side effects of his pain medication during a typical day. ( Id. at 45-46.) He does not do laundry, gardening or cooking. ( Id. at 45.) Although octogenarians, his parents help him more than he helps them. ( Id. ) With respect to Plaintiff's pain, he cannot stand longer than approximately ten to twelve minutes before feeling "very uncomfortable and hurting" in his knees and lower back. ( Id. at 46-47.) Even sitting longer than twenty minutes results in lower back pain and knee "cramping." ( Id. at 48.)
b. Plaintiff's work history
Plaintiff testified at the ALJ hearing that he worked in flooring as a carpet mechanic for approximately thirty years. ( Id. at 41, 43.) After fifteen years, Plaintiff had a knee operation and could not continue the same work.[2] ( Id. at 43.) Plaintiff later worked, for approximately five or six months, as a security guard. ( Id. at 42, 137.) His security guard job involved a lot of standing and walking, looking for illegally-parked cars. ( Id. at 42) He did not lift or carry anything for this job, instead he "would just walk and stand all day." ( Id. at 145.) For some period of time Plaintiff worked as a sales associate at Home Depot. ( Id. at 40.) Plaintiff took too many days off due to his inability to stand on his legs and frequent dizziness. ( Id. at 41.) He was terminated due to his absences. ( Id. ) Since Plaintiff's alleged disability onset date of December 31, 2006, Plaintiff has only worked as a porter at a supermarket from October 2008 to December 2008. ( Id. at 127.) Plaintiff quit his supermarket job due to his "medical condition." ( Id. )
c. Vocational expert's testimony
Doctor Steven H. Feinstein testified at the hearing as the vocational expert. ( Id. at 49.) Dr. Feinstein described Plaintiff's flooring work as SVP-7 heavy, his security guard job as SVP-3 light, his sales job as SVP-4 light, and his porter job as SVP-2 heavy.[3] ( Id. ) The ALJ then described a hypothetical person to Dr. Feinstein, based on the same age, education and work experience as the Plaintiff. ( Id. at 50.) The hypothetical involved the following description:
Postural limitations. No climbing of ladders, ropes, scaffolds. Occasional climbing of ramps and stairs, balancing, stooping, kneeling, crouching and crawling. No manipulative, visual or communicative limitations. In terms of environmental limitations, this individual should avoid concentrated exposure to unprotected heights.
( Id. ) Dr. Feinstein stated that an individual with the above-described limitations could perform Plaintiff's past security guard work. Dr. Feinstein also stated that even if the job were that of a parking lot attendant, SVP-2 light, his answer remained the same. ( Id. at 51.) Dr. Feinstein's answer remained constant even if the job should be "low-stress employment meaning only occasional[] decision making required and only occasional change[] in the work setting." ( Id. at 52.)
d. Medical evidence
i. Doctor P. Kudler[4]
On April 27, 2010, Dr. Kudler gave Plaintiff a primary diagnosis of "affective disorder, " a secondary diagnosis of "muscle, ligament and fascia disorders" and determined that Plaintiff was not disabled. ( Id. at 54.) On July 8, 2010, Dr. Kudler diagnosed Plaintiff with adjustment disorder. ( Id. at 243.) Dr. Kudler determined that Plaintiff could follow and understand simple directions and instructions, perform tasks independently, maintain attention and concentration, and maintain a regular schedule. ( Id. )
ii. Doctor Ranga C. Krishna
Plaintiff first saw Doctor Ranga C. Krishna, of Total Neuro Care P.C., on September 26, 2009. ( Id. at 139.) On September 29, 2009, Dr. Krishna performed an electromyogram test on Plaintiff. ( Id. at 177.) Dr. Krishna found that the test revealed evidence of chronic right C5-C6 cervical and chronic right L5-S1 lumbosacral radiculopathies.[5] ( Id. at 188.) The test also showed evidence of a moderate bilateral sensorimotor median nerve neuropathy at the wrist, consistent with the clinical diagnosis of carpal tunnel syndrome. ( Id. ) Dr. Krishna recommended that Plaintiff restrict his physical activity, meaning no prolonged standing, walking or sitting. ( Id. )
In a letter dated April 13, 2010, Dr. Krishna noted that Plaintiff has difficulty walking and climbing stairs, and that he is "totally disabled and is unable to work in any functional capacity."[6] ( Id. at 290.)
On August 16, 2010, Dr. Krishna completed a functional capacity questionnaire in which he stated that Plaintiff could carry "very little weight, " and could not stand for more than thirty minutes in the course of an eight hour workday.[7] ( Id. at 250.)
On September 17, 2010, Dr. Krishna performed another electromyogram, which revealed evidence of chronic right C5-6 cervical radiculopathy and evidence of chronic right L5-S1 lumbosacral radiculopathy. ( Id. at 295.)
On February 21, 2012, Dr. Krishna performed an electromyogram test which revealed evidence of chronic right C5-C6 cervical and chronic right L5-S1 lumbosacral radiculpathies.[8] ( Id. at 299.)
On March 6, 2012, Dr. Krishna noted a decreased range of motion "at knee" with swelling and tenderness.[9] ( Id. at 289.) Plaintiff's Lachman and anterior drawer test were positive. ( Id. ) Flexion and extension of the knee was limited to 30 degrees. ( Id. )
On March 19, 2012, in a "Physician's Note, " Dr. Krishna found Plaintiff to be "totally disabled" and unable to work in any functional capacity due to his ankle joint pain, herniated discs and cervical and lumbar radiculopathy.[10] ( Id. at 300.)
Finally, in an undated report, Dr. Krishna determined that Plaintiff sustained a cervical and lumbar strain injury, cervical and lumbar disk resulting in a neuropathic pain syndrome, right knee derangement, and worsening lumbar disc with worsening neuropathic pain.[11] ( Id. at 292.) Dr. Krishna noted a positive straight leg raising test on the right side at 30 degrees, an antalgic gait, and palpable point tenderness. ( Id. ) Forward flexion of the thoracolumbar spine was performed to 30 to 50 degrees and forward flexion of the cervical spine was limited to 30 degrees. ( Id. ) Dr. Krishna recommended that Plaintiff obtain orthopedic consultation, and if the symptoms failed to improve, explore knee braces, ankle surgery, and physical therapy. ( Id. ) Dr. Krishna noted that his prognosis "is guarded due to the nature, severity, and permanency of the outlined injuries." ( Id. at 293.)
iii. Certified physician's assistant Thomas Detey
On September 16, 2010, Thomas Detey, PA-C (physician's assistant), completed a "Treating Physician's Wellness Plan Report." ( Id. at 245.) He noted that Plaintiff had torn menisci, in addition to degenerative arthritis. ( Id. at 245-247.) There was pain and edema of both knees and Detey noted that the Plaintiff's MRIs showed meniscus tear and arthritis in both knees. ( Id. ) Plaintiff was prescribed non-steroidal anti-inflammatory drugs and physical therapy. ( Id. ) Detey also indicated that Plaintiff had a permanent disability of bilateral knee arthritis, was unable to work for at least twelve months and may be eligible for long-term disability benefits.[12] ( Id. )
iv. Magnetic resonance imaging results
On referral from Dr. Krishna, Plaintiff underwent a series of MRIs of his knees, ankles and brain. On January 9, 2010, Dr. Harold S. Parnes performed an MRI of Plaintiff's left knee. ( Id. at 184.) Dr. Parnes found joint fluid, soft tissue swelling, postoperative changes, and a tear through the two menisci. ( Id. at 185.) Dr. Parnes recommended "followup." ( Id. at 186.)
On March 26, 2010, Dr. Parnes performed an MRI of Plaintiff's right knee. ( Id. at 189.) Dr. Parnes found a "baker cyst, " joint fluid, soft tissue swelling, a meniscus tear, and recommended other diagnostic studies and tests. ( Id. at 190.)
On March 3, 2011, Dr. Parnes performed an MRI of Plaintiff's right ankle. ( Id. at 255.) Dr. Parnes noted joint fluid at the tibiotalar joint space, a questionable contusion at the distal fibula, a questionable arthritic process which needed to be evaluated, a sprain or strain in the Achilles tendon, evidence of some soft tissue swelling anterior and posterior to the distal Achilles tendon and mild degenerative changes involving the midfoot region. ( Id. at 255.) Dr. Parnes recommended further diagnostic studies and tests. ( Id. at 256.)
On April 1, 2011, Dr. Parnes performed an MRI of Plaintiff's left ankle. ( Id. at 257.) Dr. Parnes noted joint fluid at the tibiotalar joint space, retrocalcaneal bursitis, soft tissue swelling at the level of the medial and lateral malleoli, and a posterior tibial tendon tear with surrounding edema. ( Id. ) Further diagnostic studies and tests were recommended. ( Id. at 258.)
On February 20, 2012, Dr. Parnes performed an MRI of Plaintiff's lumbosacral and cervical spine.[13] ( Id. at 274, 276.) With respect to Plaintiff's lumbosacral spine, Dr. Parnes noted multilevel disc space narrowing and desiccation and facet hypertrophic arthropathy. ( Id. at 274.) Posterior disc herniations and disc protrusions were also noted. ( Id. ) With respect to Plaintiff's cervical spine, Dr. Parnes noted multilevel disc space narrowing, dessication and endplate degenerative changes, mucous thickening in the right maxillary sinus, and posterior disc herniations. ( Id. at 276.)
On March 12, 2012, Dr. Parnes performed an MRI of Plaintiff's left knee.[14] ( Id. at 271.) Dr. Parnes noted joint fluid, degenerative changes, sprain or strain of the lateral collateral ligament, moderate intrameniscal degenerative signal, soft tissue swelling, a tear through the anterior horn, body and posterior horn of the medial meniscus, and mild to moderate degenerative changes involving the patellofemoral joint. ( Id. at 271-72.)
On March 14, 2012, Dr. Parnes performed an MRI of Plaintiff's right knee.[15] ( Id. at 268.) Dr. Parnes noted mild to moderate degenerative changes involving the patellofemoral joint, small medial and lateral joint compartment osteophytic changes, a sprain or strain of the lateral collateral ligament, moderate intrameniscal degenerative signal, and a tear through the posterior horn and body of the medial meniscus. ( Id. at 268-69.)
v. Doctor Joseph A. Suarez
On May 17, 2011, Plaintiff visited Doctor Joseph A. Suarez. ( Id. at 260.) Dr. Suarez noted that Plaintiff had pain during range of motion tests of the cervical and lumbar spine. ( Id. ) Dr. Suarez also noted bilateral knee pain with tenderness and pain in the medial side of both knees and a lack of about twenty degrees of full flexion in both knees. ( Id. ) Dr. Suarez noted that his office ordered MRIs of Plaintiff's cervical spine and lumbar spine. Dr. Suarez's impression was that Plaintiff had cervical and lumbar-sacral spine degenerative disc disease, osteoarthritis of both knees and early degenerative changes of both knees. ( Id. at 261.) Dr. Suarez noted that these problems would not improve and that the patient "should think about retiring" as he could not "really work now at any type of gainful employment." ( Id. ) On June 14, 2011, Dr. Suarez, after receiving Plaintiff's MRI of the cervical spine, wrote in a letter that test showed degenerative disc disease "which is chronic and because of the cervical spine and lumbar spine chronic problems and bilateral knee osteoarthritis, the patient is totally disabled and unable to perform any type of gainful employment." ( Id. at 263.)
On January 18, 2012, Dr. Suarez wrote another letter reiterating that Plaintiff's lumbar and cervical spine pain was chronic, had not improved, and would be permanent.[16] ( Id. at 266.)
vi. Doctor Chitoor Govindaraj
On June 28, 2010, Doctor Chitoor Govindaraj performed a consultive evaluation of Plaintiff and diagnosed Plaintiff with a history of left knee degenerative arthritis, past history of medial meniscus tear, post degenerative arthritis of the right knee with meniscus tear and baker cyst and a "[h]istory of carpal tunnel syndrome on the right secondary to C5-C6 cervical radiculopathy." ( Id. at 222, 224.) Plaintiff's reflexes were normal, range of motion of both knees was normal, range of motion of the spine was normal, and straight leg raising was normal. ( Id. ) Dr. Govindaraj determined that Plaintiff did not need a cane, and that Plaintiff's overall medical prognosis was good and cleared Plaintiff for "occupation." ( Id. ) Dr. Govindaraj noted that Plaintiff had taken 1mg of alprazolam (Xanax) four times a day for anxiety for the past six months and 75mg of Plavix once a day, but that Plaintiff was not then currently taking any medication. ( Id. at 22.)
vii. Disability analyst W. Knoble[17]
On July 8, 2010, W. Knoble, a disability analyst, found Plaintiff's allegation that he could not walk for more than a block to not be credible. ( Id. at 219.) Knoble also found that Plaintiff did not establish any visual limitations, manipulative limitations or postural limitations. ( Id. at 217-18.) Knoble determined that Plaintiff could occasionally lift or carry up to fifty pounds, frequently lift or carry up to twenty-five pounds, stand and/or walk about six hours in an eighthour workday, and sit for a total of about six hours in an eight-hour workday. ( Id. at 217.)
viii. Doctor Richard King
On June 20, 2010, Doctor Richard King, after a consultative evaluation, found Plaintiff anxious and depressed to a mild degree, and to have an adjustment disorder of adult life. ( Id. at 213.) Dr. King determined that Plaintiff could manage his own funds, had a satisfactory ability to follow simple instructions and perform simple tasks. ( Id. ) Moreover, Dr. King found that Plaintiff had a satisfactory ability to follow complex instructions and perform complex tasks, and interact with others in a work setting. ( Id. )
e. The ALJ's decision
The ALJ conducted the five-step sequential analysis as required, and more fully discussed below. First, the ALJ found that Plaintiff had not engaged in substantial gainful activity since December 31, 2006. ( Id. at 24.) Second, the ALJ determined that Plaintiff has the following severe impairments: "degenerative cervical and lumbosacral disc disease and degenerative joint disease." ( Id. ) Third, the ALJ found that Plaintiff did not have an impairment or combination of impairments that meets or equals the severity of one of the listed impairments in Appendix 1 of the regulations. ( Id. at 25.) The ALJ specifically considered Listing 1.02 for major dysfunction of a joint and Listing 1.04 for disorders of the spine. ( Id. at 25-26.) With respect to Listing 1.02, the ALJ recognized that Plaintiff had a knee impairment but found no evidence to support the conclusion that the impairment resulted in Plaintiff's inability to "ambulate effectively" as required under Listing 1.02. ( Id. at 26.) As for Listing 1.04, the ALJ acknowledged Plaintiff's diagnosis of degenerative disc disease but found that there was no evidence of "neuro-anatomical distribution of pain or that there exists any sensory or reflex loss" as required under Listing 1.04. ( Id. ) The ALJ noted that Dr. Govindaraj found that Plaintiff "exhibited a range of motion within normal limits." ( Id. )
Fourth, the ALJ determined that Plaintiff had "the residual functional capacity [RFC'] to perform light work." ( Id. ) The ALJ found that Plaintiff must avoid concentrated exposure to unprotected heights and could not climb ladders, ropes or scaffolds but could occasionally climb ramps and stairs, balance, stoop, kneel, couch and crawl. ( Id. ) The ALJ found Plaintiff's statements concerning the "intensity, persistence and limiting effects of these symptoms" not credible to the extent that they were inconsistent with the ALJ's determination of Plaintiff's RFC. ( Id. at 27.) In coming to this determination, the ALJ recognized the medical findings within the following documents: (1) September 29, 2009 nerve conduction study; (2) October 10, 2009 nerve report; (3) January 9, 2010 MRI of the left knee; (4) March 3, 2011 MRI of the right ankle; (5) April 1, 2011 MRI of the left ankle; (6) June 28, 2010 consultative examination by Dr. Govindaraj; (7) September 16, 2010 PA-C report;[18] (8) Letters sent by Dr. Suarez; (9) June 20, 2010 consultative examination by Dr. King; (10) Assessment by Dr. Kudler. ( Id. at 27-28.) Although acknowledging these findings, the ALJ noted that Plaintiff had not undergone any surgery, injections or anything more than physical therapy. ( Id. ) The ALJ also found that Dr. Govindaraj's opinion deserved "substantial weight" as an "examining physician whose opinion is consistent with the medical evidence of record." ( Id. at 28.) The ALJ admonished the statements of Dr. Suarez labeling Plaintiff as disabled, characterizing them as "no more than attempts to usurp the Commissioner's authority with regard to the finding of disability." ( Id. ) Furthermore, the ALJ found that Dr. Suarez offered no opinion as to Plaintiff's "actual physical limitations or abilities." ( Id. )
Finally, the ALJ determined that Plaintiff is capable of performing past relevant work as a security guard because such a position does not require activity precluded by the RFC assessment. ( Id. at 29.)
II. Discussion
a. Standard of Review
In reviewing a final decision of the Commissioner, a district court must determine "if there is substantial evidence, considering the record as a whole, to support the Commissioner's decision and if the correct legal standards have been applied." Cichocki v. Astrue, 729 F.3d 172, 175-76 (2d Cir. 2013) (per curiam) (quoting Kohler v. Astrue, 546 F.3d 260, 264-65 (2d Cir. 2008)); see also Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per curiam). Substantial evidence requires "more than a mere scintilla." Selian, 708 F.3d at 417 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008)). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Selian, 708 F.3d at 417 (citation and internal quotation marks omitted). Once an ALJ finds facts, the court "can reject those facts only if a reasonable factfinder would have to conclude otherwise. " Brault v. Soc. Sec. Admin., 683 F.3d 443, 448 (2d Cir. 2012) (citations and internal quotation marks omitted). In deciding whether substantial evidence exists, the court "defer[s] to the Commissioner's resolution of conflicting evidence." Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012). The Commissioner's factual findings "must be given conclusive effect so long as they are supported by substantial evidence." Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citation and internal quotations omitted). If, however, the Commissioner's decision is not supported by substantial evidence or is based on legal error, a court may set aside the decision of the Commissioner. Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998); see Box v. Colvin, ___ F.Supp.2d ___, ___, ___ WL 997553, at *13 (E.D.N.Y. Mar. 14, 2014) ("When reviewing the decision of the Commissioner, the Court may set aside the determination only if the decision was based on legal error or was not supported by substantial evidence in the administrative record."). "The Act must be liberally applied, for it is a remedial statute intended to include not exclude." Moran, 569 F.3d at 112 (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)).
b. Availability of benefits
Federal disability insurance benefits are available to individuals who are "disabled" within the meaning of the Social Security Act (the "Act"). To be eligible for disability benefits under the Act, the plaintiff must establish his or her inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The impairment must be of "such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). The Commissioner has promulgated a five-step analysis for evaluating disability claims. 20 C.F.R. § 404.1520. The Second Circuit has described the steps as follows:
The first step of this process requires the [Commissioner] to determine whether the claimant is presently employed. If the claimant is not employed, the [Commissioner] then determines whether the claimant has a "severe impairment" that limits her capacity to work. If the claimant has such an impairment, the [Commissioner] next considers whether the claimant has an impairment that is listed in Appendix 1 of the regulations. When the claimant has such an impairment, the [Commissioner] will find the claimant disabled. However, if the claimant does not have a listed impairment, the [Commissioner] must determine, under the fourth step, whether the claimant possesses the residual functional capacity to perform her past relevant work. Finally, if the claimant is unable to perform her past relevant work, the [Commissioner] determines whether the claimant is capable of performing any other work. If the claimant satisfies her burden of proving the requirements in the first four steps, the burden then shifts to the [Commissioner] to prove in the fifth step that the claimant is capable of working.
Kohler, 546 F.3d at 265 (quoting Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996)).
c. Analysis
Defendant moves for judgment on the pleadings, claiming that the Commissioner's decision is supported by substantial evidence and should be affirmed. Plaintiff cross-moves for judgment on the pleadings, arguing that reversal is proper based on the following legal errors: (1) the ALJ failed to address the evidence of Plaintiff's treating physician; (2) the RFC determined by the Commissioner is not supported by substantial evidence; and (3) the ALJ did not correctly assess Plaintiff's credibility.
i. Treating physician rule and the duty to develop the record
Plaintiff argues that the ALJ erred in not addressing the medical evidence and opinion of Dr. Krishna. (Pl. Mem. 17.) Defendant argues that the ALJ considered Dr. Krishna's report and correctly concluded that objective findings contained therein did not preclude the Plaintiff from performing "light work." (Def. Opp'n Mem. 2.)
"A treating physician's statement that the claimant is disabled cannot itself be determinative." Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (quoting Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999)); Micheli v. Astrue, 501 F.Appx. 26, 28 (2d Cir. 2012). But a treating physician's opinion on the "nature and severity" of the plaintiff's impairments will be given "controlling weight" if the opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the plaintiff's] case record." 20 C.F.R. § 404.1527(c)(2); see Matta v. Astrue, 508 F.Appx. 53, 57 (2d Cir. 2013) (discussing the treating physician rule); Petrie v. Astrue, 412 F.Appx. 401, 405 (2d Cir. 2011) ("The opinion of a treating physician is accorded extra weight because the continuity of treatment he provides and the doctor/patient relationship he develops place[s] him in a unique position to make a complete and accurate diagnosis of his patient." (quoting Mongeur v. Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir. 1983) (per curiam)); Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (discussing treating physician rule). A treating source is defined as a plaintiff's "own physician, psychologist, or other acceptable medical source" who has provided plaintiff "with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with [the plaintiff]." 20 C.F.R. § 404.1502; Bailey v. Astrue, 815 F.Supp.2d 590, 597 (E.D.N.Y. 2011).
An ALJ must consider various factors in determining how much weight to give a treating physician's opinion. Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (citing 20 C.F.R. § 404.1527(d)(2)). Specifically, the ALJ should consider: "(1) the frequen[cy], length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is a specialist." Selian, 708 F.3d at 418 (citing Burgess, 537 F.3d at 129); see also Halloran, 362 F.3d at 32 (discussing the factors). The ALJ must set forth the reasons for the weight he or she assigns to the treating physician's opinion. Halloran, 362 F.3d at 32. The ALJ is not required to explicitly discuss the factors, but it must be clear from the decision that the proper analysis was undertaken. See Petrie, 412 F.Appx. at 406 ("[W]here the evidence of record permits us to glean the rationale of an ALJ's decision, we do not require that he have mentioned every item of testimony presented to him or have explained why he considered particular evidence unpersuasive or insufficient to lead him to a conclusion of disability.'" (quoting Mongeur, 722 F.2d at 1040)). Failure "to provide good reasons for not crediting the opinion of a claimant's treating physician is a ground for remand." Sanders v. Comm'r of Soc. Sec., 506 F.Appx. 74, 77 (2d Cir. 2012); see also Halloran, 362 F.3d at 32-33.
Before determining whether the Commissioner's decision is supported by substantial evidence, the court "must first be satisfied that the claimant has had a full hearing under the regulations and in accordance with the beneficent purposes of the Act." Moran, 569 F.3d at 112 (alterations omitted) (quoting Cruz, 912 F.2d at 11); see also Perez, 77 F.3d at 47 ("Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record."). The ALJ has a threshold duty to adequately develop the record before deciding the appropriate weight to give the treating physician's opinion. Burgess, 537 F.3d at 129 ("[A]n ALJ cannot reject a treating physician's diagnosis without first attempting to fill any clear gaps in the administrative record." (quoting Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999))); Collins v. Comm'r of Soc. Sec., No. 11-CV-5023, 2013 WL 1193067, at *9-10 (E.D.N.Y. Mar. 22, 2013) (remanding for failure to develop the record); Hinds v. Barnhart, No. 03-CV-6509, 2005 WL 1342766, at *10 (E.D.N.Y. Apr. 18, 2005) ("The requirement that an ALJ clarify a treating source's opinion that a claimant is unable to work is part of the ALJ's affirmative obligation to develop a claimant's medical history."); Pabon v. Barnhart, 273 F.Supp.2d 506, 514 (S.D.N.Y. 2003) ("[T]he duty to develop a full record... compels the ALJ... to obtain from the treating source expert opinions as to the nature and severity of the claimed disability.... Until he satisfies this threshold requirement, the ALJ cannot even begin to discharge his duties... under the treating physician rule." (alterations in original) (quoting Peed v. Sullivan, 78 F.Supp. 1241, 1246 (E.D.N.Y. 1991))). "Because of the considerable weight ordinarily accorded to the opinions of treating physicians, an ALJ's duty to develop the record on this issue is all the more important.'" Rocchio v. Astrue, No. 08-CV-3796, 2010 WL 5563842, at *11 (S.D.N.Y. Nov. 19, 2010) (citation omitted), report and recommendation adopted, No. 08-CV-3796, 2011 WL 1197752 (S.D.N.Y. Mar. 28, 2011). An ALJ's "failure to develop the record adequately is an independent ground for vacating the ALJ's decision and remanding the case." Green v. Astrue, No. 08-CV-8435, 2012 WL 1414294, at *14 (S.D.N.Y. Apr. 24, 2012) (citing Moran, 569 F.3d at 114-15), report and recommendation adopted, No. 08-CV-8435, 2012 WL 3069570 (S.D.N.Y. July 26, 2012).
For the reasons discussed below, the Court finds that (1) the ALJ failed to adequately explain his reasons for affording little weight to the medical opinion of Plaintiff's treating physician Dr. Krishna, thereby violating the treating physician rule, and (2) failed to develop the record with respect to the medical opinion of Plaintiff's other treating physician, Dr. Suarez.
1. The ALJ did not properly address the findings of Plaintiff's treating physician Dr. Krishna
Plaintiff argues that the ALJ violated the treating physician rule by failing to discuss and failing to provide good reasons for rejecting the medical findings of Plaintiff's treating physician Dr. Krishna. (Pl. Mem. 18.) As a preliminary matter, contrary to Plaintiff's assertion that the ALJ "never even acknowledged Dr. Krishna's existence, " (Pl. Mem. 18), the ALJ expressly cited to Dr. Krishna's September 29, 2009 electromyogram test, (R. at 27). The ALJ noted that the electromyogram test "reveal[ed] evidence of chronic cervical and lumbosacral radiculopathies as well as moderate bilateral wrist neuropathy." ( Id. at 27.) However, Plaintiff is correct that the ALJ did not discuss Dr. Krishna's express recommendation that Plaintiff "[r]estrict physical activity" and engage in "[n]o prolonged standing, walking, or sitting." ( Id. at 178.) As discussed below, the Court agrees with Plaintiff and finds that the ALJ failed to adequately follow the treating physician rule with respect to Dr. Krishna's medical opinion that Plaintiff restrict physical activity and avoid prolonged standing, walking or sitting.
The relevant SSA regulations state that the ALJ will "evaluate every medical opinion" it receives. 20 C.F.R. §§ 404.1527(c) and 416.927(c). The SSA regulations also make the following promise: "We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion." Id. ; Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998) (quoting 20 C.F.R. §§ 404.1527(c) and 416.927(c)); Bolden v. Comm'r of Soc. Sec., 556 F.Supp.2d 152, 165 (E.D.N.Y. 2007) ("[T]he ALJ must always give good reasons in her decision for the weight accorded to a treating source's medical opinion." (citation and internal quotation marks omitted)).
The ALJ did address Dr. Krishna's September 29, 2009 electromyogram test and presumably relied on the objective medical findings therein to conclude that Plaintiff suffers from severe medical impairments. (R. at 24-25.) However, the ALJ did not address Dr. Krishna's opinion that Plaintiff could not stand, walk or sit for a prolonged period. The ALJ only stated that he arrived at his findings and conclusions of law "[a]fter careful consideration of the entire record." ( Id. at 24.) Assuming that Dr. Krishna's recommendation that Plaintiff avoid prolonged standing, walking or sitting was part of the "entire record" considered, the ALJ's conclusion necessarily assigned little weight to Dr. Krishna's recommendation.[19] This is so because "light work" requires prolonged standing, walking and/or sitting.[20] When an ALJ affords a treating physician's opinion little weight, the ALJ must consider the various factors set forth in 20 C.F.R. § 404.1527(c). Halloran, 362 F.3d at 32.
The ALJ's failure to address Dr. Krishna's findings concerning Plaintiff's functional limitations is troubling because the findings directly contradict the ALJ's ultimate conclusion that Plaintiff could perform a variety of light work. Even after a "searching review" of the record, the Court cannot say with certainty that the treating physician rule was followed. The ALJ's failure to discuss this critical medical finding from Plaintiff's treating physician and the ALJ's failure to provide "good reasons" for affording this opinion little weight necessitates remand. See Coscia v. Astrue, No. 08-CV-3042, 2010 WL 3924691, at *8 (E.D.N.Y. Sept. 29, 2010) ("However, the ALJ declined to accord [the plaintiff's treating physician's] assessment controlling, or even great, ' weight. In making this decision, the ALJ did not take into consideration two of the relevant factors.... As consideration of these factors is mandatory, the ALJ's lapse mandates remand." (citations omitted)); Bolden, 556 F.Supp.2d at 166 (finding that the ALJ's failure to assign any weight to the plaintiff's treating physicians' opinions required remand); Hendricks v. Comm'r of Soc. Sec., 452 F.Supp.2d 194, 201 (W.D.N.Y. 2006) ("Even when controlling weight is not accorded a treating physician's opinion, the ALJ still must describe what weight he gave to that opinion. He did not do so here and that was error."); Sutherland v. Barnhart, 322 F.Supp.2d 282, 290 (E.D.N.Y. 2004) ("Factual determinations, based on the weighing of evidence, are within the ALJ's competence; however, in making these determinations, the ALJ must address the evidence on the record.... [T]he ALJ's failure to mention several parts of the record which contradict his conclusion constitutes error."); Pogozelski v. Barnhart, No. 03-CV-2914, 2004 WL 1146059, at *12 (E.D.N.Y. May 19, 2004) ("Dr. Tanzer's opinion, as the opinion of a treating physician, should have been accorded controlling weight, or if not, the ALJ was still required to apply the factors specified in the regulations concerning treating physicians, to determine the degree of weight it deserved. The failure to follow this rule, standing alone, requires demand." (citations omitted)).
2. The ALJ failed to develop record with respect to Dr. Suarez
The ALJ also failed to develop the record with respect to Dr. Suarez's medical opinion. The ALJ noted that "Dr. Suarez is a treating specialist who refers to the findings in [Plaintiff's] recent MRIs, " which findings ostensibly supported Dr. Suarez's conclusion that Plaintiff's degenerative diseases would not improve, that Plaintiff should think about retiring and that Plaintiff is disabled. (R. at 28, 261.) Nevertheless, the ALJ emphasized "that Dr. Suarez offers no opinion as to the [Plaintiff]'s actual physical limitations or abilities, " and therefore gave Dr. Suarez's opinion "little weight." ( Id. at 28-29.) To the extent that the ALJ found the omission of Dr. Suarez's opinion as to Plaintiff's "actual physical limitations or abilities" to be of critical importance, it was the ALJ's duty to obtain all relevant information from Dr. Suarez, rather than seize upon this documentary omission in order to undercut Dr. Suarez's medical conclusions. See Rivera v. Astrue, No. 06-CV-3326, 2009 WL 705756, at *7 (E.D.N.Y. Mar. 16, 2009) ("With respect to treating physicians, ALJs must seek additional evidence or clarification when a report contains a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques.'" (quoting 20 C.F.R § 404.1512(d))); see also Johnson v. Barnhart, No. 02-CV-1704, 2004 WL 725309, at *4 (E.D.N.Y. Mar. 8, 2004) (remanding where the ALJ "should have made efforts to obtain from the plaintiff's psychiatrist or psychologist a more detailed description of the plaintiff's limitations"); cf. Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996) ("Because there is nothing to indicate... that the reports were inconclusive, the ALJ was not obligated to request further information...." (emphasis added)). The ALJ's failure to fill a clear gap in the record compels remand.
d. Credibility
Plaintiff argues that the ALJ improperly rejected subjective evidence of pain and functional limitation and failed to take into account Plaintiff's lengthy work history. (Pl. Mem. 21-22.) Defendants argue that the ALJ properly weighed Plaintiff's credibility. (Def. Mem. 21.)
While SSA regulations require an ALJ "to take the claimant's reports of pain and other limitations into account, he or she is not required to accept the claimant's subjective complaints without question." Campbell v. Astrue, 465 F.Appx. 4, 7 (2d Cir. 2012) (alteration omitted) (quoting Genier, 606 F.3d at 49). Rather, the ALJ evaluates the claimants' contentions of pain through a two-step inquiry. First, "the ALJ must decide whether the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged, " including pain. Genier, 606 F.3d at 49 (2d Cir. 2010) (citing 20 C.F.R. § 404.1529(b)); see also 20 C.F.R. § 404.1529(a) ("[S]tatements about your pain or other symptoms will not alone establish that you are disabled; there must be medical signs and laboratory findings which show that you have a medical impairment(s)...."). If the ALJ finds such an impairment, at the second step, "the ALJ must then consider the extent to which [the claimant's] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence of record.'" Campbell, 465 F.Appx. at 7 (alteration in original) (quoting Genier, 606 F.3d at 49). The ALJ will consider all of the available medical evidence, including a claimant's statements, treating physician's reports, and other medical professional reports. Whipple v. Astrue, 479 F.Appx. 367, 370-71 (2d Cir. 2012). To the extent that a claimant's allegations of pain "are not substantiated by the objective medical evidence, the ALJ must engage in a credibility inquiry." Meadors, 370 F.Appx. at 184 (citing § 404.1529(c)(3)(i)-(vii)). In conducting the credibility inquiry, the ALJ must consider seven factors.[21]
For purposes of judicial review, the Second Circuit has "long held that [i]t is the function of the [Commissioner], not ourselves, ... to appraise the credibility of witnesses, including the claimant.'" Campbell, 465 F.Appx. at 7 (alterations in original) (quoting Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983)). Assuming all other aspects of the underlying proceedings adhered to the law, the ALJ's failure to explicitly reference Plaintiff's work history or medication would not require remand. See Campbell, 465 F.Appx. at *7 ("Although it is true that a good work history may be deemed probative of credibility, ' it remains just one of many factors' appropriately considered in assessing credibility." (quoting Schaal v. Apfel, 134 F.3d 496, 502 (2d Cir. 1998))); Wavercak v. Astrue, 420 F.Appx. 91, 94 ("That Wavercak's good work history was not specifically referenced in the ALJ's decision does not undermine the credibility assessment, given the substantial evidence supporting the ALJ's determination."); Sickles v. Colvin, No. 12-CV-774, 2014 WL 795978, at *12 (N.D.N.Y. Feb. 27, 2014) (rejecting the plaintiff's claim that the ALJ's lack of specific mention to the type, dosage or side effects of any medication the Plaintiff was taking required remand and further noting that "[t]he choice of which evidentiary basis to utilize, in a written opinion, in order to justify a decision to accord a reduction in probative weight to a plaintiff's testimony is up to the ALJ"). However, as discussed above, the ALJ erred in not addressing the medical opinion of Dr. Krishna and further erred in failing to develop the record in order to adequately weigh Dr. Suarez's opinion regarding Plaintiff's functional limitations against that of Dr. Govindaraj. Therefore the ALJ could not properly assess Plaintiff's credibility. See 20 C.F.R. § 404.1529 ("In evaluating the intensity and persistence of your symptoms, we consider all of the available evidence, including your history, the signs and laboratory findings, and statements from you, your treating or nontreating source, or other persons about how your symptoms affect you. We also consider the medical opinions of your treating source and other medical opinions as explained in § 404.1527." (emphasis added)). Upon remand, the ALJ must reevaluate Plaintiff's credibility against the medical opinions of Dr. Krishna and Dr. Suarez, along with the other evidence in the record.
III. Conclusion
For the foregoing reasons, Defendant's motion for judgment on the pleadings is denied. Plaintiff's cross motion for judgment on the pleadings is granted. The Court finds that the ALJ erred in failing to properly assess the medical opinion of Plaintiff's treating physicians Dr. Krishna and Dr. Suarez, and failed to fulfill his duty to develop the record before determining the weight to give to the opinion of the treating physicians.
The Commissioner's decision is vacated and this action is remanded for further administrative proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). The Clerk of Court is directed to close this case.
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United States District Court, C.D. California
October 9, 2014
Bruce Diep et al.v.Wells Fargo Bank et al.
JOSEPHINE L. STATON, District Judge.
PROCEEDINGS: (IN CHAMBERS) ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (Docs. 11, 25)
Before the Court is a Motion to Dismiss filed by Defendant Wells Fargo Bank, N.A. (Docs. 11, 25.) Plaintiffs opposed, and Defendant replied. (Docs. 16, 26, 18.) The Court finds this matter appropriate for disposition without oral argument. See Fed.R.Civ.P. 78; C.D. Cal. R. 7-15. Accordingly, the hearing set for October 10, 2014, at 2:30 p.m. is VACATED. For the following reasons, the Court GRANTS the Motion.
On December 11, 2013, Plaintiffs Bruce Diep and Christie Diep filed a Complaint against Defendant in Orange County Superior Court. (Doc. 1-1, Ex. B.) On February 21, 2014, Plaintiffs filed a First Amended Complaint. (Doc. 1-1, Ex. A.) On March 24, 2014, Defendants removed the case to this Court. (Doc. 1.)
The FAC states the following facts:
Plaintiffs reside at 15672 Butterfield Street in Huntington Beach, California. Plaintiffs obtained a home loan which was securitized. (FAC ¶¶ 2-3.) The securitization of Plaintiffs' loan is governed by a Pooling and Service Agreement. (Id. ¶¶ 6-7.) Subsequent transactions involving the loan's securitization have violated the PSA. (Id. ¶ 14.) Additionally, as part of the securitization process, the mortgage note became separated from the deed of trust, with the deed of trust being transferred to the Mortgage Electronic Registrations System.[1] (Id. ¶ 10.) As a result of these facts, Defendant cannot establish that it legally and properly acquired the note, and Defendant has an imperfect security interest. (Id. ¶¶ 11-12.)
Based on the foregoing facts, Plaintiffs assert claims for: (1) lack of standing to foreclose; (2) fraud in the concealment; (3) fraud in the inducement; (4) intentional infliction of emotional distress; (5) slander of title; (6) quiet title; (7) declaratory relief; (8) violation of the Truth in Lending Act; (9) violation of RESPA; and (10) rescission.
When evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all allegations of material facts that are in the complaint and must construe all inferences in the light most favorable to the non-moving party. Moyo v. Gomez, 32 F.3d 1382, 1384 (9th Cir. 1994). Dismissal of a complaint for failure to state a claim is not proper where a plaintiff has alleged "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint must (1) "contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively, " and (2) "plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). "Although for the purposes of a motion to dismiss [the Court] must take all of the factual allegations in the complaint as true, [it] [is] not bound to accept as true a legal conclusion couched as a factual allegation.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
In considering a motion to dismiss, the Court is limited to the allegations on the face of the complaint (including documents attached thereto), matters which are properly judicially noticeable, and "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading." Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994), overruled on other grounds in Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).
A. Lack of standing
Plaintiffs' first claim alleges that Defendant lacks standing to foreclose.
California courts, however, have squarely held that no such cause of action exists. See Gomes v. Countrywide Home Loans, Inc., 192 Cal.App.4th 1149, 1154 (Cal.Ct.App. 2011) (holding that California's nonjudicial foreclosure system is a "comprehensive framework for the regulation of a nonjudicial foreclosure sale" and "[does] not allow for a challenge to the authority of the person initiating the foreclosure"); Jenkins v. JP Morgan Chase Bank, N.A., 216 Cal.App.4th 497, 513 (Cal.Ct.App. 2013) (agreeing with the Gomes court and noting that permitting this cause of action "would fundamentally undermine the nonjudicial nature of the process and introduce the possibility of lawsuits filed solely for the purpose of delaying valid foreclosures.").[2] This does not mean, however, that California borrowers who seek to challenge the foreclosing party's standing to do so are without a remedy. Instead, the proper course is to bring an action either to enjoin the trustee's sale or to set the sale aside. See Robinson v. Countrywide Home Loans, Inc., 199 Cal.App.4th 42, 46 n.5 (Cal.Ct.App. 2011).
Accordingly, this claim is DISMISSED WITH PREJUDICE.
B. Fraud in the Concealment and Fraud in the Inducement
Next, Plaintiffs assert claims for both fraud in the concealment and fraud in the inducement.
In the concealment claim, Plaintiffs suggest that Defendants "concealed the fact that the Loans were securitized as well as the terms of the Securitization Agreements" and suggest that Plaintiffs would not have entered into the Loans "had the truth been disclosed." (FAC ¶¶ 35-36.) In the inducement claim, Plaintiffs assert that "Defendants... intentionally misrepresented to Plaintiffs those Defendants were entitled to exercise the power of sale provision contained in the Deed of Trust." (Id. ¶ 44.)
Federal Rule of Civil Procedure 9(b) requires that a party "state with particularity the circumstances constituting fraud or mistake." Fed.R.Civ.P. 9(b). See, e.g., Schreiber Distrib. Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1401 (9th Cir. 1986) ("We have interpreted Rule 9(b) to mean that the pleader must state the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentation."). Here, Plaintiffs do not offer any such details. Plaintiffs fail to plead which Defendants were involved in the alleged fraud, how any statements made by Defendants were false, why Plaintiffs relied on these statements, why any such reliance was reasonable, or how they were damaged by any reliance on these statements.
Accordingly, these claims are DISMISSED WITHOUT PREJUDICE.
C. Intentional Infliction of Emotional Distress
Plaintiffs further allege that by foreclosing on them, Defendants intended to - and did - inflict severe emotional distress on Plaintiffs. (FAC ¶¶ 55-56.)
To state a claim for intentional infliction of emotional distress Plaintiffs must allege five elements: (1) outrageous conduct by the defendant; (2) intent to cause, or reckless disregard of the possibility of causing, emotional distress; (3) severe emotional suffering; and (4)-(5) actual and proximate causation of the emotional distress. Bogard v. Employers Casualty Co., 164 Cal.App.3d 602, 616 (Cal. 1985).
Plaintiffs have asserted no basis on which to assert that Defendants have no right, title or interest in the Property. They assert that Defendants attempted to foreclose the Property in order to intentionally inflict emotional distress, but plead no facts to suggest such a plan existed. (FAC ¶ 56) Plaintiffs do not contest that they are in default on the loan and thus it is not clear how foreclosure constitutes "extreme" or "outrageous" conduct in this case. See Aguinaldo v. Ocwen Loan Servicing, LLC, 2012 WL 3835080, at *7 (N.D. Cal. Sept. 4, 2012) (holding that "foreclosing on property does not amount to the outrageous conduct'"); Davenport v. Litton Loan Servicing, LP, 725 F.Supp.2d 862, 884 (N.D. Cal. 2010) (holding that home foreclosure "falls shy of outrageous, ' however wrenching the effects on the borrower").
D. Slander of title
Plaintiffs next allege that Defendants "disparaged Plaintiffs' exclusive valid title by and through the preparing, posting, publishing, and recording" of documents including "the Notice of Default, Notice of Trustee's Sale, and Trustee's Deed." (FAC ¶ 63.)
The elements of this tort are (1) a publication, (2) without privilege or justification, (3) falsity, and (4) direct pecuniary loss. Sumner Hill Homeowners' Assn., Inc. v. Rio Mesa Holdings, LLC, 205 Cal.App.4th 999, 1030 (Cal.Ct.App. 2012). Here, Plaintiffs do not allege that the listed documents contained any false statements, aside from reasserting, without any plausible facts, that "Defendants had no right, title, or interest in the Property." (FAC. ¶ 64). Nor do Plaintiffs allege lack of privilege.
Accordingly, this claim is DISMISSED WITHOUT PREJUDICE.
E. Quiet title
Plaintiffs next seek to quiet title in the property.[3]
Quiet title claims require that five elements be set out in a verified complaint: (1) a description of the property, both legal description and street address; (2) the title of the plaintiff, and the basis for that title; (3) the adverse claims to the plaintiff's title; (4) the date as of which the determination is sought; and (5) a prayer for the determination of the plaintiff's title against the adverse claims. Cal. Civ. Proc. Code § 761.020(a)-(e).
Plaintiffs' quiet title claim fails as a matter of law because they fail to establish "adverse claims" to his title. Defendants cannot hold a claim adverse to Plaintiff's title because a deed of trust "carries none of the incidents of ownership of the property, other than the right to convey upon default on the part of the debtor in payment of his debt." Hamilton v. Bank of Blue Valley, 746 F.Supp.2d 1160, 1177 (E.D. Cal. 2010). Further, Plaintiffs cannot maintain a claim for quiet title unless they pay off their mortgage. See Rosenfeld v. JPMorgan Chase Bank, N.A., 732 F.Supp.2d 952, 975 (N.D. Cal. 2010) ("A basic requirement of an action to quiet title is an allegation that plaintiffs are the rightful owners of the property, i.e., that they have satisfied their obligations under the deed of trust."). Finally, Plaintiffs fail to allege tender.
F. Declaratory Relief
Plaintiffs next seek declaratory relief that Defendants lack the authority to foreclose upon and sell the property. (FAC ¶ 80.)
California Code of Civil Procedure section 1060 authorizes "[a]ny person... who desires a declaration of his or her rights or duties with respect to another... in cases of actual controversy relating to the legal rights and duties of the respective parties, [to] bring an original action... for a declaration of his or her rights and duties...." Cal. Code Civ. Proc. § 1060 (emphasis added). "The fundamental basis of declaratory relief is the existence of an actual, present controversy over a proper subject." City of Cotati v. Cashman, 29 Cal.4th 69, 79 (Cal. 2002). The object of Section 1060 "is to afford a new form of relief where needed and not to furnish a litigant with a second cause of action for the determination of identical issues." California Ins. Guarantee Assn. v. Superior Court, 231 Cal.App.3d 1617, 1624 (Cal.Ct.App. 1991).
Here, Plaintiffs' declaratory relief claim essentially duplicates their "lack of standing" claim. For the reasons noted above, no actual, present controversy yet exists about Defendants' standing to foreclose on Plaintiffs' property. Moreover, this claim is duplicative of the "lack of standing" claim because it acts as a "second cause of action for the determination of identical issues." California Ins. Guarantee Assn., 231 Cal.App.3d at 1624.
G. Violation of the Truth in Lending Act (TILA)
Plaintiffs next assert that Defendant failed to provide accurate material disclosures under TILA. (FAC. ¶ 91.) Specifically, Plaintiffs allege Defendants failed to inform them of the pros and cons of adjustable rate mortgages in understandable language and advise them of other products that might be more advantageous to them. (Id.)
Individual actions for damages under TILA must be filed within one year of the date of the occurrence of the alleged violation. 15 U.S.C. § 1640(e). Ordinarily, any failure to disclose necessary information occurs, if at all, at the time the loan documents are signed. Meyer v. Ameriquest Mortg. Co., 342 F.3d 899, 902 (9th Cir. 2003).
Plaintiffs do not allege when they obtained their home loan from Defendants, but in their Opposition do not dispute Defendants' assertion that they did so in April 2007. (Mot. at 1.) Plaintiffs filed their initial Complaint on December 11, 2013. Therefore, more than one year passed between the time of the violation and the time Plaintiffs filed the instant lawsuit, and this claim is time-barred.
Plaintiffs contend that the limitations period should be tolled because defendants failed to "effectively provide the required disclosures and notices" required under TILA. (FAC ¶ 92.) The Ninth Circuit has held that equitable tolling of claims for damages under TILA may be appropriate "in certain circumstances, " and can operate to "suspend the limitations period until the borrower discovers or had reasonable opportunity to discover the fraud or nondisclosures that form the basis of the TILA action." King v. California, 784 F.2d 910, 914-15 (9th Cir. 1986). However, when a plaintiff does not allege any facts demonstrating that he or she could not have discovered the alleged violations by exercising due diligence, dismissal may be appropriate. See Meyer, 342 F.3d at 902-03 (declining to apply equitable tolling to TILA claim where plaintiff was in full possession of all loan documents and did not allege any concealment of loan documents or other action that would have prevented discovery of the alleged violations).
Plaintiffs have failed to allege sufficient facts showing they could not have discovered the alleged violations by exercising due diligence, and have possessed the allegedly deficient mortgage documentation since April 2007. Courts in the Ninth Circuit have found equitable tolling inappropriate under similar circumstances. See Akhavein v. Argent Mortg. Co., 2009 WL 2157522, at *3(N.D. Cal. July 18, 2009); Suguri v. Wells Fargo Bank, 2009 WL 2486546, at *3 (C.D. Cal. Aug. 7, 2009).
Accordingly, this claim is DISMISSED WITHOUT PREJUDICE. Plaintiffs are given leave to amend to provide facts sufficient to support tolling the limitations period.
H. Violation of and Real Estate Settlement Procedures Act (RESPA)
Plaintiffs further allege Defendants violated RESPA, 12 U.S.C. § 2601 et seq., because unspecified payments made between them "were misleading and designed to create a windfall." (FAC ¶ 102.) Plaintiffs claim the payments violated a two-part test promulgated by the U.S. Department of Housing and Urban Development (HUD) in 1999. (FAC ¶¶ 99-100.)
RESPA creates a private right of action for three categories of wrongful acts: (1) payment of a kickback and unearned fees for real estate settlement services, 12 U.S.C. § 2607; (2) requiring a buyer to use a title insurer selected by the seller, 12 U.S.C. § 2608; and (3) the failure by a loan servicer to give proper notice of a transfer of servicing rights or to respond to a qualified written request for information about a loan, 12 U.S.C. § 2605. Deal v. Countrywide Home Loans, Inc., C 09-01643 SBA, 2013 WL 3157914, *3 (N.D. Cal. June 20, 2013); see also Lopez v. Wachovia Mortgage, 209-CV-01510-JAM-DAD, 2009 WL 4505919, *3 (E.D. Cal. Nov. 20, 2009). Claims brought under Section 2607 or 2608 are subject to a one-year statute of limitations, while claims brought under Section 2605 are subject to a three-year statute of limitations, each of which begins to run when the violation occurs. 12 U.S.C. § 2614.
Plaintiffs' allegations do not appear to fit within any of these three categories. Therefore, Plaintiffs fail to allege facts stating a RESPA claim. Moreover, as noted above, Plaintiffs do not dispute Defendants' assertion that they obtained their home loan from Defendants in April 2007. As a result, Plaintiffs' RESPA claim is barred by the statute of limitations unless equitable tolling applies. As with their TILA claim, however, Plaintiffs fail to allege a basis for equitable tolling. This claim is therefore time-barred.
I. Rescission
Plaintiffs finally seek rescission of the loan and accompanying loan documents pursuant to TILA and their various state-law claims. (FAC ¶ 105.)
Rescission under TILA is subject to a three-year statute of limitations. 15 U.S.C. § 1635(f); see also McOmie-Gray v. Bank of Am. Home Loans, 667 F.3d 1325, 1328 (9th Cir. 2012). Because Plaintiffs obtained their loan in 2007 and filed the initial Complaint in 2013, their claim for rescission under TILA is time-barred.
Plaintiffs alternately seek rescission under various state-law theories including fraud and independent public policy grounds. (FAC ¶ 105.) In California, however, actions for rescission of a written contract are subject to a four-year statute of limitations. Cal. Civ. Proc. Code § 337(3). As noted above, Plaintiffs do not sufficiently allege tolling. Rescission is therefore time-barred under Plaintiffs' various state-law theories.
For the foregoing reasons, Defendant's Motion to Dismiss is GRANTED. Plaintiffs' claims for lack of standing, intentional infliction of emotional distress, quiet title and declaratory relief are DISMISSED WITH PREJUDICE. All other claims are DISMISSED WITHOUT PREJUDICE. Plaintiffs shall file any amended complaint within TWENTY-EIGHT DAYS of this Order. Failure to do so will result in the immediate dismissal of this case with prejudice.
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This is another pricey, private club where you need to be a member of a guest of a member. Located in Kailua, actually Lanikai, it can be difficult to find on your first drive out there. It's pretty and somewhat laid back.4


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Michigan football
Wallpaper Season - The Game - 2016
Good evening, ladies and gentlement of MGoBlog.
As you may or may not have noticed, I have been absent from the wallpaper scene this year for the most part. I've been extremely busy with both work and life and haven't had some of the free-time to do wallpapers like I would like to. Well, this week I was sent to Kentucky for work and so I have had some evening free time - so you get a wallpaper from me for "The Game." Ok, enough stupid filler "me" content, and on to the wallpaper content.
I'm constantly struck by how much of Bo is in Jim Harbaugh. I think some of it is fabricated by my mind and others in the Michigan fanbase, but I also truly believe Bo had such a lasting impression on Jim that he tries hard to emulate Bo in many areas of coaching. For this week's wallpaper, I went with the sentimental approach rather than the "Beat Ohio" chest-pounding. While I love to talk trash about Ohio State, they are not who I am focusing on this week - focusing on your rival is for little brothers. I am focusing on The Game, and on Jim Harbaugh, and on Bo - all things that make Michigan that much more MICHIGAN in my mind.
There's no way I could know this, of course, but I like to think that Jim can hear his old coach giving him advice while he roams the sideline, grinning or growling, teaching or throwing things. I just imagine him hearing Bo curse when a flag is thrown, laugh at the futility of dealing with referees, and encourage his quarterback when he's down on himself - wanting to give in to doubt. I like to think that these things fuel Jim - that they give him some sort of supernatural serenity, an unnatural peace in the midst of the chaos that is gametime. I want so desperately for Bo's words to be prophetic.
"It's gonna be Michigan again...Michigan."
Damn it, Bo. We miss you. Jim misses you. This world took you away too soon. Here's to being "Michigan again." For Bo, for Jim, for the Team, and for all of us fans. I'm thankful to be a Michigan Wolverine. I'm thankful for a forum to express my unhealthy love for this game and for the Team that plays it so well. I hope you enjoy this wallpaper.
Go Blue.
Desktop (1920x1080):
Mobile (Bo):
Mobile (Jim):
Official Georgia vs. Florida Thread (And Other Afternoon Games)
MOD EDIT - let's just open the discussion rather than have two threads. - LSA
To see how Georgia performs.
This Thread is dedicated to Aubrey Solomon. Aubrey please come to Michigan.
For those who have not seen his film, Aubrey is a Stud.
247: Michigan in excellent CFP position heading into Wisconsin game
Some great stats in this piece put out by 247 today. Really cool to see how we line up against the rest of the country on both sides of the ball. My favorite part:
"There are only three teams scoring more points per game than Michigan. No team has more sacks (17) or tackles for loss (44) than the Wolverines. Like Jabril Peppers, who leads the team with 332 all-purpose yards and is second with 33 tackles while leading the country with 23.7 yards per touch and with 9.5 tackles for loss, Michigan is dominating on both sides of the ball. It has an extremely tough game waiting at the end of the regular season against rival Ohio State. But arguably nobody is in a better position to earn a spot in the Playoff this year than Michigan."
Yes, week 5 caveats and such (also, beat Wisconsin...before anyone else says it). But it's great to see us at the top of so many categories of stats already and looking ahead, should we continue that trend on Saturday, in great position to have a really special season.
Michigan Still Fifth In The Coaches Poll
Expected after Louisville dismantled FSU.
Link to poll - LINK
MOD EDIT - Cleaning this one up a bit. - LSA
Attending UCF @ Michigan Game. Thank you MgoBlog for the tips for visitors.
So I'm heading east shortly to attend UCF @ Michigan game this weekend.
Excited would be an understatement. In tow with me will be a 9 year old boy and 11 year old girl, to witness the first Michigan football game of their lives. I can't wait to show them everything from UM campus, Moe's, Stadium, UM marching band, local restaurants and Ann Arbor itself.
I found this article on MGOBLOG with advice from August 2015: http://mgoblog.com/mgoboard/finally-attending-my-first-game-big-house-need-some-info-please
Just another reason why MGOBLOG is a great place and resource for visitors, thanks to all of you. Much appreciated!
Go Blue!
Harbaugh vs. Rolovich in QB Challenge: Who Ya Got?!
UH Head Coach Nick Rolovich took to twitter to challenge Harbaugh to a friendly QB competition before the game on Saturday. Harbaugh's response?
"Yeah, I'd be open to it," Harbaugh said in response to a question this morning on the Big Ten Conference media conference call.
"Quarterback shootout? Interesting. I'll see what he has in mind. Yeah, I'd be glad to talk to Nick about that. Sounds like a challenge, huh?"
Harbaugh then said, "I think I know what competition he is talking about. So, that would be interesting. Yeah, I'd be open to it."
Of course Harbaugh would never reject a challenge. He's the most competitive guy I've ever seen. My prediction? Harbaugh wins this QB shootout in blowout fashion, as a prelude to what's going to happen on the field.
Edit: For reference, Rolovich was QB at UH in 2001, then had a journeyman career, bouncing from the Denver Broncos, to NFL Europe, AFL, and the German Football League.
(I'm still taking Harbaugh)


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INDIAN WELLS, Calif. — In anticipation of federal legislation that will establish a cap-and-trade system to reduce the production of greenhouse gas emissions, food retailers should assess their carbon footprint and their level of energy efficiency, said a Safeway executive. "While you're waiting for legislation to come, you'll want to see where you are," advised Cathy Ikeuchi, manager of energy operations for Safeway, Pleasanton, Calif., in a presentation here last week during the Food ...
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The Little Clinic at Fry's grocery store in Phoenix treats most basic illnesses for less than $59, making it an affordable option for people who don't have insurance -- and even those who do. The clinic, staffed by nurse practitioners and physician's assistants, provides quick, convenient care for patients and reduces health care costs and crowding at hospital emergency departments.
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