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December 5, 2012
DEANNA GRIFFIN,PLAINTIFF,v.MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
Plaintiff filed a Complaint on October 24, 2011, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's application for a period of disability, disability insurance benefits ("DIB"), and supplemental security income ("SSI"). On December 19, 2011, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. The parties filed a Joint Stipulation on July 16, 2012, in which: plaintiff seeks an order reversing the Commissioner's decision and awarding benefits or, alternatively, remanding for further administrative proceedings; and the Commissioner requests that his decision be affirmed or, alternatively, remanded for further administrative proceedings.
On May 7, 2007, plaintiff filed an application for a period of disability, DIB, and SSI, alleging an inability to work since December 31, 1994, due to "dislocation right shoulder/back injury/hyperextended knee." (Administrative Record ("A.R.") 11, 143.) Plaintiff has past work experience as a "telemarketer," "customer service-clothing," "waitress," "cocktail waitress," and "bartender." (A.R. 17, 144.)
The Commissioner denied plaintiff's application initially and upon reconsideration. (A.R. 65-69, 71-75.) On June 9, 2009, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge Jay E. Levine (the "ALJ"). (A.R. 24-59.) David Reinhart, a vocational expert, also testified. (Id.) On November 12, 2009, the ALJ denied plaintiff's claim (A.R. 7-19), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 1-5). That decision is now at issue in this action.
The ALJ found that plaintiff met the insured status requirements of the Social Security Act through September 30, 2004, and that she had not engaged in substantial gainful activity from her alleged onset date of December 13, 1994, through the date of the decision. (A.R. 10.) The ALJ further determined that plaintiff has the severe impairments of: Meniere's disease; degenerative disc disease; degenerative joint disease; chronic right shoulder dislocations; bipolar disorder; and marijuana addiction. (A.R. 13.) The ALJ concluded that none of these impairments meet or medically equal the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the Listing of Impairments. (Id.)
After reviewing the record, the ALJ determined that plaintiff has the residual functional capacity ("RFC") to perform "sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a)," except she would be limited as follows:
[N]o work around unprotected heights or dangerous machinery. She would be limited to occasional climbing, stooping or lifting above shoulder level with the left upper extremity; and no balancing, kneeling, crouching, crawling, and no conveyor belt work or piecework.
The ALJ found that plaintiff's past work as a telemarketer constitutes past relevant work under the regulations and that she is capable of performing it, both as that work is generally performed and as she actually performed it. (A.R. 18.) Additionally, after having considered plaintiff's age, education, work experience, and RFC, the ALJ found that other jobs exist in the national economy that plaintiff could perform, including "telephone quotations clerk," "pari-mutuel ticket checker," and "order clerk food and beverage." (Id.) The ALJ further determined that plaintiff's substance abuse was not a contributing factor material to the determination of disability, because "even in the absence of her substance addiction, [the ALJ] would still not be able to find [plaintiff] to be disabled." (A.R. 18-19.) Accordingly, the ALJ concluded that plaintiff has not been under a disability, as defined in the Social Security Act, since December 31, 1994, the alleged onset date of her disability. (Id.)
Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citation omitted). The "evidence must be more than a mere scintilla but not necessarily a preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). "While inferences from the record can constitute substantial evidence, only those 'reasonably drawn from the record' will suffice." Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted).
Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate non-disability determination.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. Comm'r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d at 679.
Plaintiff alleges the following three issues: (1) whether the ALJ properly evaluated the medical evidence of record relevant to plaintiff's mental impairment; (2) whether the ALJ properly considered plaintiff's subjective complaints; and (3) whether the ALJ erred in finding that plaintiff's prior employment as a telemarketer constituted past relevant work ("PRW"). (Joint Stipulation ("Joint Stip.") at 3.)
I. The ALJ Failed To Properly Evaluate The Medical Evidence Concerning Plaintiff's Mental Impairment.
An ALJ is obligated to take into account all medical opinions of record. 20 C.F.R. §§ 404.1527(d), 416.927(d). It is the responsibility of the ALJ to analyze evidence and resolve conflicts in medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). In the hierarchy of physician opinions considered in assessing a social security claim, "[g]enerally, a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a reviewing physician's." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. §§ 404.1527(d), 416.927(d).
The opinions of treating physicians are entitled to the greatest weight, because a treating physician is hired to cure and has a better opportunity to observe the claimant. Magallanes, 881 F.2d at 751. When a treating physician's opinion is not contradicted by another physician's opinion, it may be rejected only for "clear and convincing" reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). When contradicted by another doctor's opinion, a treating physician's opinion may be rejected only if the ALJ provides "specific and legitimate" reasons supported by substantial evidence in the record. Id. An ALJ must provide "clear and convincing reasons" for rejecting the uncontradicted opinion of either a treating or examining physician. Id.
The medical treatment records before the ALJ concerning plaintiff's mental impairment were from the Riverside County Department of Mental Health ("Riverside County"), where plaintiff was treated from December 2008, through at least June 2009. (A.R. 499-519, 547-65, 567-83.) It appears that plaintiff was seen monthly by her treating psychiatrist, David Aryanpur, M.D., and by several different clinicians on a weekly basis. (Id.)
On December 31, 2008, Dr. Aryanpur noted that plaintiff was doing a "little better" but was "frustrated." (A.R. 516.) He also noted that plaintiff exhibited "mood swings" and "slightly rambling speech," and was on "verge of tears." (Id.) He further noted marijuana use on December 28, 2008, and he recommended that plaintiff abstain from drugs, especially marijuana. (Id.)
On February 6, 2009, Dr. Aryanpur noted that plaintiff's mood was improved and she had less rambling speech. (A.R. 505.) He noted her last marijuana use was on January 24, 2009. (Id.) He recommended that she continue with Tegretol, the medication for her bipolar disorder. (Id.)
On March 6, 2009, Dr. Aryanpur reported that plaintiff was doing well but had a "lapse . . . during her wedding which negatively affected her mood but only temporarily." (A.R. 564.) Her last marijuana use was on February 15, 2009. (Id.) He indicated that she should continue to take Tegretol. (Id.)
On April 3, 2009, Dr. Aryanpur noted that plaintiff had "family stressors" and is "a little on edge as a result," but that she was "holding up fairly well." (A.R. 560.) He noted she last used marijuana three weeks ago and should continue taking Tegretol. (Id.)
On May 15, 2009, Dr. Aryanpur noted that plaintiff was "doing better," and that the "family stressors have resolved themselves." (A.R. 549.) Plaintiff ranked her mood "7/10." (Id.) He noted her last marijuana use was the day before and she should continue taking Tegretol. (Id.)
An "Adult Annual Re-Assessment" was completed on May 29, 2009, by T. Drumgole, IMF. (A.R. 572-77.) In the Re-Assessment, plaintiff was diagnosed with bipolar disorder, NOS, and cannabis dependence. (A.R. 572.) Plaintiff's motor activity was restless, her concentration was poor, and her memory was slightly impaired. (A.R. 574.) Plaintiff had a depressed mood, flight of ideas/racing thoughts, excessive anxiety, muscle tension, recurrent distressing dreams, and fear of losing control. (Id.) Plaintiff's thought process was characterized as "blocking" and reflecting "flight of ideas/loose associations." (Id.) Her thought content was "mood congruent," she had no delusions, but she did have visual perceptions/hallucinations. (Id.) She had a "low average" general fund of knowledge, fair insight, and poor judgment and impulse control. (Id.) Plaintiff was assessed a GAF score of 50.*fn1 (A.R. 573.)
At the hearing before the ALJ, plaintiff testified that her bipolar disorder was her most serious problem. (A.R. 32.) She stated that it causes her uncontrollable emotions and anxiety, and it affects her ability to work, because if she "can't keep the moods under control, it's not good to be around people." (A.R. 33-34.) Plaintiff testified that she takes Tegretol for the bipolar disorder. (A.R. 33) She also goes to a "co-occurring disorder group" at the mental health clinic twice a week for her mental illness and marijuana addiction. (A.R. 41.)
After the ALJ's adverse November 12, 2009 decision, plaintiff's counsel provided to the Appeals Council a "Mental Impairment Questionnaire" from Dr. Aryanpur dated January 20, 2010. (A.R. 651-54.)
In the Impairment Questionnaire, Dr. Aryanpur opined that plaintiff suffered from bipolar disorder, NOS. (A.R. 651.) He assessed a GAF score of 50 and noted that plaintiff's highest GAF score in the past year was 56. (Id.) Dr. Aryanpur opined that plaintiff's prognosis is "guarded." (A.R. 653.) Dr. Aryanpur described plaintiff's mental impairment and symptoms as "mood swings and depression which cause apathy, lethargy, feelings of worthlessness, impairment in focus and concentration," and he noted that plaintiff has had two suicide attempts. (A.R. 652.) He indicated plaintiff's limitations to be: slight restriction of activities of daily living; marked difficulties in maintaining social functioning; frequent deficiencies in concentration, persistence, or pace; and repeated episodes of deterioration or decompensation. (A.R. 654.) Dr. Aryanpur also noted that plaintiff's impairments or treatment would cause her to be absent from work more than three times a month. (A.R. 653.) He stated that plaintiff's prescribed medications (Tegretol and Trazodone) cause drowsiness. (Id.) Dr. Aryanpur concluded that plaintiff's "emotional instability, low energy and decrease[d] ability to concentrate preclude [her] from substantial full-time employment." (A.R. 654.)
The Appeals Council denied review, stating:
We considered the medical source statement that your representative submitted with the request for review . . . but the assessment was not accompanied by an explanation with specific references to treatment records. Absent an explanation with specific references to the treatment record, we have concluded that the record does not support the assessment and that the assessment . . . would not have changed the [ALJ's] decision in the case. We have reviewed the entire record and we have found no basis for changing the [ALJ's] decision.
(A.R. 2.) Plaintiff argues that a remand is appropriate based on the ALJ's failure to properly consider the medical evidence "as it pertains to the extent and severity of her mental impairment," and in light of the additional evidence she presented to the Appeals Council. (Joint Stip. 4-5.) The Court agrees.
Although the ALJ found plaintiff's bipolar disorder and marijuana addiction to be severe, he does not address these impairments in any other portion of his opinion. (A.R. 13.) When an ALJ has determined that a claimant has a severe impairment at step two, "all medically determinable impairments must be considered in the remaining steps of the sequential analysis." See Orn, 495 F.3d at 630. However, an ALJ may properly conclude that a severe mental impairment does not necessarily limit the ability to perform basic work activities if the medical record supports such a finding. See Bray v. Comm'r, 554 F.3d 1219, 1228--29 (9th Cir. 2009)(finding that the ALJ adequately accounted for a mental disorder despite finding it did not limit all work). Here, the ALJ neither determined whether plaintiff's severe mental impairment limited her ability to perform basic work activities nor considered the uncontradicted evidence regarding plaintiff's mental impairment in the remaining steps of the sequential analysis. Further, the ALJ did not make any credibility findings as to whether the mental impairment could reasonably be expected to produce plaintiff's complaints.*fn2 Thus, the ALJ committed error.
Further, because the Appeals Council considered, inter alia, the Impairment Questionnaire in deciding whether to review the ALJ's decision, this Court also must consider such evidence in determining whether the ALJ's decision was supported by substantial evidence and free from legal error. See Brewes v. Comm'r, 682 F.3d 1157, 1163 (9th Cir. 2012)("when the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner's final decision for substantial evidence"); Warner v. Astrue, 859 F. Supp. 2d 1107, 1114-15 (C.D. Cal. 2012)(though the Appeals Councils is not required to provide reasons for discounting additional evidence, the Court reviews "the ALJ's decision in light of the record as a whole, including the evidence submitted for the first time to the Appeals Council")(citing Taylor v. Comm'r, 659 F.3d 1228, 1231--32 (9th Cir. 2011)). The Court may remand upon finding that "there is a substantial likelihood the ALJ's consideration of the additional evidence submitted to the Appeals Council will materially alter the ALJ's disability analysis." Warner, 859 F. Supp. 2d at 1117.
As noted above, although the ALJ determined that plaintiff's bipolar disorder and marijuana addiction were severe at step two of the sequential analysis, the ALJ failed consider their effects in the remaining steps of the analysis. Dr. Aryanpur's Impairment Questionnaire provides a link between the treating notes from Riverside County and plaintiff's specific mental limitations and restrictions that had not been considered by the ALJ. With the addition of Dr. Aryanpur's RFC assessment, there is substantial evidence in the record to show that plaintiff's mental impairment limits her ability to perform basic work activities. Therefore, in view of the evidence before the ALJ and the additional evidence submitted to the Appeals Council, this Court cannot conclude that the ALJ's decision is supported by substantial evidence, or that any error is harmless. Indeed, the ALJ's consideration of the additional evidence submitted to the Appeals Council may materially alter the ALJ's disability analysis. Therefore, remand is appropriate to permit the ALJ to properly evaluate all of plaintiff's medical records concerning her mental impairment. See McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011)(remand appropriate when there was a substantial likelihood that the ALJ's consideration of additional evidence submitted to the Appeals Council could alter the ALJ's analysis).
II. The ALJ Failed To Set Forth Clear And Convincing Reasons For Finding Plaintiff's Testimony Regarding Her Subjective Symptoms And Pain To Be Not Credible.
Once a disability claimant produces objective medical evidence of an underlying impairment that is reasonably likely to be the source of claimant's subjective symptom(s), all subjective testimony as to the severity of the symptoms must be considered. Moisa, 367 F.3d at 885; Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991); see also 20 C.F.R. §§ 404.1529(a), 416.929(a) (explaining how pain and other symptoms are evaluated). "[U]nless an ALJ makes a finding of malingering based on affirmative evidence thereof, he or she may only find an applicant not credible by making specific findings as to credibility and stating clear and convincing reasons for each." Robbins, 466 F.3d at 883. The factors to be considered in weighing a claimant's credibility include: (1) the claimant's reputation for truthfulness; (2) inconsistencies either in the claimant's testimony or between the claimant's testimony and her conduct; (3) the claimant's daily activities; (4) the claimant's work record; and (5) testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which the claimant complains. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also 20 C.F.R. §§ 404.1529(c), 416.929(c).
Here, the ALJ found that "[a]fter careful consideration of the evidence . . . [plaintiff]'s medically determinable impairments could reasonably be expected to cause the alleged symptoms." (A.R. 17.) Further, the ALJ cited no evidence of malingering by plaintiff.
Nonetheless, the ALJ concluded that plaintiff's "statements concerning the intensity, persistence and limiting effects of these symptoms are not credible" to the extent they varied from the ALJ's own RFC assessment. (Id.) Accordingly, the ALJ's reasons for finding that plaintiff was not credible with respect to her subjective symptom and pain testimony must be "clear and convincing."
During the June 9, 2009 hearing, plaintiff testified that she had back problems and arthritis that caused "problems [] sitting or standing for very long periods of time"; in particular, once a week, her back pain requires her to lay on the floor until the pain stops. (A.R. 35, 46-47; see also A.R. 38-39, 48-49.) She testified that her back pain on a regular basis is at an eight out of a ten level of severity. (A.R. 47-48.) She testified that her right shoulder hurts frequently and her left knee is hyperextended and bothers her. (A.R. 39, 49-50.) Plaintiff also experiences dizziness, ringing in her ears, and balance problems. (A.R. 50-51.) She stated that her symptoms interfere with her ability to concentrate and focus on a job. (A.R. 52.) Plaintiff testified that she could sit a half an hour before she would have to change positions and could stand for only an hour at a time. (Id.) She further testified that she could not work a full-time job due to her "own head, because I overdo myself, and then I get overwhelmed." (A.R. 53.)
The ALJ found 12 reasons for finding plaintiff to lack credibility with respect to her subjective symptoms and pain. (A.R. 16-17.) These stated reasons were: (1) the objective evidence did not support plaintiff's allegations of pain or other limitations (reasons three through seven, nine, ten, and twelve); (2) plaintiff's testimony regarding her daily activities was inconsistent with her subjective symptom/pain complaints (reasons one and two); (3) plaintiff's symptoms were well-controlled by her medication (reason eight); and (4) no physician ever opined that plaintiff's severe impairments met or equaled listing level limitations (reason eleven). (Id.)
Eight of the twelve bases for the ALJ's rejection of plaintiff's subjective complaints essentially were that the objective medical evidence did not corroborate the alleged symptom/pain severity.*fn3 (A.R. 16-17.) Although "the medical evidence is a relevant factor in determining the severity of the claimant's pain and its disabling effects," once a claimant produces objective medical evidence of an underlying impairment, an ALJ "may not reject a claimant's subjective complaints based solely on lack of objective medical evidence to fully corroborate the alleged severity of pain." Rollins, 261 F.3d at 856--57; see also Bunnell, 947 F.2d at 347 (noting that "[i]f an adjudicator could reject a claim of disability simply because a claimant fails to produce evidence supporting the severity of the pain there would be no reason for an adjudicator to consider anything other than medical findings"). Thus, with respect to the ALJ's third through seventh, ninth, tenth, and twelfth reasons, the failure of the objective medical evidence to fully corroborate plaintiff's testimony regarding her subjective symptoms/pain constitutes a valid reason for finding her testimony to lack credibility only if the other reasons upon which the ALJ based his credibility finding are supported by substantial evidence in the record. However, as discussed below, the other reasons posited by the ALJ for rejecting plaintiff's testimony are not convincing.
First, the Court finds that the ALJ's summary of plaintiff's daily activities mischaracterizes plaintiff's statements regarding those activities. See Regennitter v. Comm'r, 166 F.3d 1294, 1297 (9th Cir. 1999)("inaccurate characterization of the evidence" constitutes error). The ALJ opined -- referencing plaintiff's "Exertional Daily Activities Questionnaire Since Your Disability Began" and her testimony at the June 9, 2009 hearing -- that plaintiff's daily activities include:
"independently caring for her own personal hygiene; shopping; and performing household chores, such as cleaning and laundry; performing yard work; driving a vehicle; attending COD meeting and attending church. (See A.R. 16.) Based on his description, the ALJ concluded that plaintiff's activities are inconsistent with a disabling level of impairment. (Id.) However, in the same Questionnaire, plaintiff explained that she does a "small load of laundry," drives "as far as I have to," her "yard work" consists of cleaning "dog poop" and "trim[ming] rose bushes" but it hurts her back and shoulders, and while she performs household chores, "it hurts me a lot and I get very winded and tire easily." (A.R. 201-02.) Plaintiff also testified at the hearing that she has somebody help her "with the groceries out to the car." (A.R. 41.) The ALJ erred in drawing conclusions regarding the extent of plaintiff's activities that failed to take these significant qualifications and limitations into account. See Reddick v. Chater, 157 F.3d 715, 722-23 (9th Cir. 1998)(the ALJ erred in developing the evidentiary basis for his finding by not fully accounting for all evidence of record and by inaccurately paraphrasing portions of the record).
The ALJ also rejected plaintiff's subjective complaints, because "[p]erforming activities such as mowing the lawn, is not consistent with an individual too disabled to perform any work activity." (A.R. 16.) However, plaintiff testified that she dislocated her shoulder while pulling on the lawn mower starter, and thus, "I don't do lawnmowers anymore." (A.R. 40.) The ALJ's finding, therefore, is contrary to the evidence.
Moreover, the ALJ does not articulate how plaintiff's daily activities are at odds with her alleged pain, as well as her mental and physical limitations. The ALJ fails to explain how plaintiff's ability to care for herself, grocery shop with the assistance of others, perform light household chores (albeit, becoming exhausted when she does so), and drive to attend meetings and church translates into the ability to perform full-time work. See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)(noting that the "mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from her credibility as to her overall disability"); Smolen v. Chater, 80 F.3d 1273, 1283 n.7 (9th Cir. 1996)("The Social Security Act does not require that claimants be utterly incapacitated to be eligible for benefits, and many home activities may not be easily transferable to a work environment where it might be impossible to rest periodically or take medication."). Therefore, the ALJ's first and second reasons do not constitute clear and convincing reasons for finding plaintiff to be not credible.
Second, the ALJ's rejection of plaintiff's subjective complaints on the ground that plaintiff "takes hydrocholorothiazide for Meniere's disease and Tegretol for bipolar disorder; [and] there are no reports of complications from either the Meniere's disease or the bipolar disorder and they appear to be well-controlled on medication" (A.R. 17) also is not convincing, because it is not supported by the evidence. Contrary to the ALJ's contention that plaintiff's Meniere's disease and bipolar disease "appear" to be "well-controlled," plaintiff testified that, although she takes hydrochlorothiazide for her left ear, she has "problems with it." (A.R. 33.) In addition, as noted above, plaintiff testified that her ear problem "offsets" her and makes her dizzy, causing her to periodically lose her balance and fall. (A.R. 51.) Further, in response to the ALJ's question, "would you say that your bipolar is fairly well controlled," plaintiff responded, "[it] still gives me problems," including "[u]ncontrollable emotions" and anxiety. (A.R. 34.) Plaintiff also testified that, while she takes Tegretol for her bipolar disorder and "[i]t seems to be doing all right":
I discussed with my doctor when I just saw him that we might need to do something else. I don't know if it's just added stress of what I've been going through with this right now, but I've been getting manic -- more on the manic side, I've noticed. I haven't been able to sleep.
(A.R. 33-34.) Moreover, the ALJ does not explain how the purportedly "well-controlled" nature of plaintiff's Meniere's disease and bipolar disease would, in the light of her other impairments, undermine her complaints of pain or would make plaintiff able to perform work-related functions. Accordingly, the ALJ's eighth reason for discrediting plaintiff is unpersuasive.
Third, the ALJ stated that plaintiff is not fully credible, because "when discussing [plaintiff's] impairments, no physician, neither any of the [plaintiff's] treating physicians or a State Agency physician, ever opined that listing level limitations were ever met or equaled." (A.R. 17.) This is not a legally valid reason for rejecting plaintiff's subjective symptom/pain testimony. Whether or not an impairment meets or medically equals a listed impairment has no reasonable bearing upon a claimant's credibility. The fact that a severe impairment does not satisfy a Listing for purposes of the step three analysis does not prevent it from constituting a disabling impairment under the Social Security Act. The ALJ's eleventh reason for discrediting plaintiff is not tenable.
In sum, the 12 reasons given by the ALJ were not clear and convincing reasons for discrediting plaintiff's testimony. Accordingly, the ALJ's adverse credibility determination constitutes reversible error.
III. On Remand, The ALJ Must Reconsider Plaintiff's Ability to Perform Her Past Relevant Work And Her Ability To Perform "Other Work".
Relying on the vocational expert's testimony, the ALJ determined that plaintiff could "perform her past relevant work as a telemarketer, both as she actually performed the duties and as they are generally performed in the national economy, because such work would not be precluded by [plaintiff's] exertional or non-exertional limitations." (A.R. 18.)
To qualify as "past relevant work," work activity must have, among other things, amounted to "substantial gainful activity." 20 C.F.R. §§ 404.1565(a), 416.965(a). Plaintiff argues that her limited experience as a telemarketer does not qualify as "past relevant work," because: based on her sparse earnings as a telemarketer, her work as a telemarketer does not meet the "substantial gainful activity" criterion of the "past relevant work" test; and "she did not perform [work as a telemarketer] long enough to adequately learn this job." (Joint Stip. at 16-17.)
The record reflects that in 2007, plaintiff earned $212.00 as a telemarketer. (A.R. 123, 220.) According to the Social Security Administration ("SSA") website, the baseline amount for "substantial gainful activity" was $900 per month in 2007. See http://www.ssa.gov/OACT/COLA/sga.html. Thus, as plaintiff's average monthly income in 2007 fell below the requisite baseline amounts for "substantial gainful activity," her past work -- for approximately one month -- as a telemarketer could not have constituted "past relevant work."
Further, it appears that plaintiff's work as a telemarketer did not last long enough for plaintiff to learn to perform this job, according to the Dictionary of Occupational Titles ("DOT"). (Joint Stip. at 16.) The DOT lists Specific Vocational Preparation ("SVP") ratings for each described occupation. SVP is defined "as the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation." DOT, app. C, 1991 WL 688702. According to the DOT, a telemarketer has a SVP level of three. DOT 299.357-014. A job with a three SVP rating means that a typical worker will require ""[o]ver 1 month up to and including 3 months" to learn the skills necessary to perform the job. DOT, app. C, 1991 WL 688702. According to the record, plaintiff performed this job for approximately one month. (A.R. 126.) Thus, on its face, the DOT's SVP rating for a telemarketer appears to be inconsistent with the length of time plaintiff spent at the job.
The vocational expert did not explain or justify this discrepancy between his testimony and the DOT, and the ALJ failed to inquire about this discrepancy. This failure constitutes error. See Massachi v. Astrue, 486 F.3d 1149, 1153--54 (9th Cir. 2007)(only after determining whether the vocational expert has deviated from the DOT and whether any deviation is reasonable may an ALJ properly rely on the vocational expert's testimony as substantial evidence to support a disability determination). Accordingly, the ALJ's conclusion that plaintiff's telemarketer job was "past relevant work" is not supported by substantial evidence and was error.
Defendant argues that this error is harmless, because the ALJ also determined that plaintiff could perform "other work" that existed in significant numbers in the national economy, such as "telephone quotations clerk," "pari-mutuel ticket checker," and "order clerk food and beverage." (Joint Stip. at 19.) Plaintiff argues that the ALJ's alternative finding was not supported by substantial evidence, because the ALJ failed to pose a complete and accurate hypothetical to the vocational expert. (Joint Stip. at 17.) As there are several matters that the ALJ needs to review and reconsider on remand, the Court does not address this issue, because the ALJ's conclusion regarding plaintiff's RFC, and thus her capacity to perform "other work," may change. To properly review and reconsider this issue, the ALJ needs to evaluate all of plaintiff's mental health records and assess properly what weight, if any, this evidence has on the ALJ's assessment of plaintiff's RFC and credibility. Further, to the extent plaintiff's RFC may need to be reassessed, additional testimony from a vocational expert likely will be required.
IV. Remand Is Required.
The decision whether to remand for further proceedings or order an immediate award of benefits is within the district court's discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no useful purpose would be served by further administrative proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Id. at 1179 ("[T]he decision of whether to remand for further proceedings turns upon the likely utility of such proceedings."). However, where there are outstanding issues that must be resolved before a determination of disability can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated, remand is appropriate. Id. at 1179-81.
Remand is the appropriate remedy to allow the ALJ the opportunity to remedy the above-mentioned deficiencies and errors. See, e.g., Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993)(ordering remand so that the ALJ could articulate specific and appropriate findings, if any existed, for rejecting the claimant's subjective pain testimony).
Accordingly, for the reasons stated above, IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED for further proceedings consistent with this Memorandum Opinion and Order.
IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for defendant.
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text:
1. Shakespeare or the Bible? Shakespeare. The wit shades it.
2. A word you like? Sleach.
3. Most romantic moment in fiction? The end of Love in the Time of Cholera by Gabriel Garcia Marquez.
4. Most overrated writer? People may say Dan Brown, but I'm not sure readers rate him so much as simply enjoy him (not the same thing).
5. Favourite book in translation? The Bible. King James with Apocrypha.
6. Best meal in English literature? War and Peas by Michael Foreman, one of the great British children's illustrators. His watercolours are so lovely you could almost eat them, just as members of the target audience have been trying to do for decades.
7. Most underrated writer? Andrew Miller for Ingenious Pain.
8. Favourite children's book? Dinosaurs and All That Rubbish by Michael Foreman, now that I'm thinking of him.
9. Book by your bedside now? The Collected Ghost Stories of MR James and Quicksands, Sybille Bedford's lovely memoir.
10. Sexiest book? Anything by Anais Nin. I'm also partial to a bit of Nancy Friday.
· Tobias Hill's novel The Cryptographer is published by Faber


text:
Listing Courtesy of Re/Max Enterprises
Listing information
- Beds: 1
- Total Rooms: 5
- Parking Type Description: Attached 1 car
- Total Square Footage: 1,021 ($141.92 per sq. foot)
- County: Cook
- Elementary School: Ridge Circle Elementary School
- Style: Townhouse
- Baths: 2 (Full: 1 3/4: 0 1/2: 1 Other: 0)
- Stories: 2
- New Construction: No
- Estimated Annual Taxes: $3,129
- High School: Streamwood High School
- Subdivision: Streamwood Green
- Year Built: 1984
- Status: Active with Contingency
- Fireplaces: 1
- Foreclosure: No
- Association Fee: $135
- Middle School: Canton Middle School
Additional Rooms Loft
Age 31-40 Years
Air Conditioning Central Air
Appliances Dishwasher, Dryer, Microwave, Oven/Range, Refrigerator, Washer
Area Streamwood
Assessment Includes Common Insurance, Exterior Maintenance, Lawn Care, Snow Removal
Basement None
Basement Bathrooms (Y/N) No
Basement Description None
Built Before 1978 (Y/N) No
Contingency Flag Attorney/Inspection
Dining Room L-shaped
Disability Access and/or Equipped No
Driveway Asphalt
Electricity Circuit Breakers
Equipment Ceiling Fan
Exterior Building Type Vinyl Siding
Exterior Property Features Balcony, End Unit, Patio, Storms/Screens
Fireplace Details Attached Fireplace Doors/Screen, Gas Starter, Wood Burning
Fireplace Location Living Room
Foundation Concrete
Garage Details Garage Door Opener(s), Transmitter(s)
Garage On-Site Yes
Garage Ownership Owned
Garage Type Attached
General Information School Bus Service
Heat/Fuel Forced Air, Gas
Interior Property Features 1st Floor Full Bath, 1st Floor Laundry, Hardwood Floors, Laundry Hook-Up in Unit, Vaulted/Cathedral Ceilings
Kitchen Type Galley, Pantry-Closet
Management Manager Off-site
Master Association Fee No
Other Bedrooms (Below Grade) - 0, Max Pet Weight - 100, Special Service Area - N, Tax Year - 2014, Total # Units in Building - 2, Total Full/Half Baths - 1.1, Township - Hanover, Unit Floor Level - 1
Ownership Fee Simple w/ HO Assn.
Parking Garage
Pet Information Cats OK, Dogs OK
Pets Allowed (Y/N) Yes
Possession Immediate
Property Type Attached Single
Recent Rehab (Y/N) No
Roof Type Asphalt/Glass (Shingles)
Sale Terms Conventional, FHA, VA
Sewer Sewer-Public
Special Assessments N
Tax Exemptions Homeowner
Type Attached Townhouse-2 Story
Virtual Tour Circlepix
Water Lake Michigan
Waterfront (Y/N) No
Dining Room Main Level 10X8
Kitchen Main Level 10X8
Living Room Main Level 19X12
Loft 2nd Level 13X10
Master Bedroom 2nd Level 16X13
Listing Courtesy of Re/Max Enterprises


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text:
Discussion in 'iPod touch' started by ThrowAway, Nov 23, 2008.
I've definately noticed an improved battery life on my 2g since installing 2.2
Anyone else noticed?
Ohhh ya. I was able to watch 2 movies last night at 95% brightness without it dying, which before, it barely made it half-way through the second one before it was done.
Cool, maybe I'll have to upgrade then. It seems that 2.2 is better than I first realised. I may or may not upgrade, but I will definitely consider this.
I have an Ipod touch 1G and it seems to me that I got better battery life with 2.1. I am not really sure though.
Yeah, it must be better battery life.
I was starting to think that my iPod's battery meter was messed up, or it was a bug in the firmware to not show the real amount of power you have left Please Register or Log in to view images
Guess that's the real deal.
Please Register or Log in to view images
Oh then im not going crazy..... apple must haved f'd up something on 2.1 or w/e i got with my 2g....
I haven't noticed it much. Then again, playing Tap Tap for two hours is the equivalent of watching 8 movies so..
Faster processor on the 2g and now better battery life.
Lifes Good Please Register or Log in to view images
Hey now, that line belongs to LG. The people who make Phones, TVs, Washers, Dryers, Fridges.... What the hell is up with that company...
Anyway, This is really good news. Finally gives me a reason to get an iPod Touch 2G... As soon as those new Apple in-ears come out.
I haven't noticed that. I'll obviously have to play my race game and scifly just to check that out. Please Register or Log in to view images
I do find scifly crashing on me quite a lot but I just bought it so I don't know if that was normal pre update or not.
Separate names with a comma.


text:
33, Winnipeg, CAAll my friends know how hard it is for me to answer any question that starts with the words "What is your favourite..." . For me, "favourite" isn't really a thing or a person, but a tier or a category. So, I end up having a handful of best friends, favourite foods, favourite TV shows, favourite colours, etc... I know it sort of defeats the purpose of the word "favourite", but I tend to think this little trait of mine is endearing ;) So... that being said,some of my favourite things to do are watching movies, being out in the sun, working out (at least 3-4 times a week), swimming, and watching sports. I'm in the best mood when my team wins, but I am the worst person when they lose... I also really like being outside. Canoeing, hiking and camping are some of my favourite things. I like sports but I am not really a jock... I'm an avid reader and a news junky. People say I'm very smart, I say I just really like learning and staying informed. I'm not pretentious or anything like that, I just have to write stuff like this down on online profiles because nobody will ask :-) I love having conversations about important issues. My relationship with God is the most important thing in my life. I hope one day that my husband and I (and our children!) will make a difference in the lives of the people we encounter as we share the many blessings we have with others. I'm a pretty happy person. I actually really like my life. I have a great job, good friends, and a loving family. I'm just looking forward to meeting someone who would like to share it with me:)
31, Winnipeg, CAOther then my Faith and God, the other things most important to me are Family and Friends. I enjoy music. My favorite genres are Folk, Blues and Bluegrass type of music. Although I owe several instruments, I play the guitar. I bought the others, so I can mess around with them, or jam with others. (that hasn't really happened) I stay active by playing sports. During the summer I play coed softball, coed soccer and pickup ultimate. During the winter I play coed soccer. I also play soft tip darts all year round. Even though this requires going to bars and hanging around smokers, I enjoy playing the game. The people are great too.
34, Winnipeg, CAMy faith is ever so important in my life! My family is very close to me and our Ukrainian-Catholic faith is ever so present in our daily lives! My dad, mother, and sister have been such great supports in my life! For this, I am ever so grateful! I love to travel, read (especially history), play/watch sports (hockey, baseball, football, golf). I enjoy cooking and trying a variety of foods! I love what I do for a career; work is never a chore! I enjoy working out and jogging (especially with my Labrador-Retriever, JJ). I am extremely grateful for my Rosary! It has saved my life and soul many times in the past!
55, Winnipeg, CAIf youd like to know more say hi. I don't reveal a lot about my self for you to read on purpose. I'd rather we chat, talk, and engage in conversation to get to know each other instead of us reading through a long page in this section about each other. Also, just because someone looks like a good match on paper, doesnt necessarily translate in reality. Basically I love life and I love living life.
46, Winnipeg, CAI am looking for love again and that its ok for me to be who i am and my kids too who loves to walk cook and go To DQ for icecream too i love camping hiking fishing too i love to bake a make a christmas dinner
30, Winnipeg, CAHi my name is Angeline. I recognize myself as a kind, caring and loving person who enjoys working in the Hospital especially helping the sick. I belong to a Conservative Catholic family. My family and friends are the most influential people in my life. For leisure time i enjoy spending time with family and friends, reading, exercising, cooking, cleaning, going to church and traveling.
57, Winnipeg, CAHello my name is Mary. I am a nurse, I am very passionate about my job and my faith. I enjoy travelling, meeting new people, and I am very interested in learning about other cultures.
20, Winnipeg, CAI love dogs, travelling, listening to classical music, playing the piano, cooking and eating delicious food, red wine, coffee, going for leisurely drives, bicycling, walking, reading and learning new things. I'm currently working as a carpenter, however I will be going to university this spring and plan on eventually becoming a lawyer.
20, Winnipeg, CAWell Hi. I'm not good at this so I'm going to be honest here. I've recently started to get in touch with my faith again. Thankfully I was born into this faith and God has surrounded me with faithful people. My hobbies are photography (really new to this), gaming, socializing/ fellowships, watching, and reading. I do listen to a wide range of music and love watching movies that come from comics. Currently I'm attending adult education to finish some courses. Afterwards I'm looking into general contracting to see if it's right for me or not. I'm a part time nanny at the moment as well. In terms of faith, currently I attend mass every Sunday and I'm part of a catholic community called "Couples for Christ, Singles for Christ". This community helps drive me to do better in life, inspire and evangelize. Me: Some good things I can agree with about myself are: - I carry compassion - I'm a very good listener when it comes to people. - Creative. Play piano chords, and the Ukulele, Arts and Crafts are fun ( and currently experimenting with video editing) - I'm Humerus, We all got that funny bone. #Lame - " You're very easy to be around" (coming from most of my friends) Things I need to work on: - I get extremely lazy sometimes. bad habit. - I'm not confident but I should be - I get insecure. I felt like I wrote a resume haha. But with all that I am looking for someone to share this life and love for Christ with me. To not just grow old together with but grow more in love with Christ together. I have this deep desire to help others and find opportunities to give love more. but with that, Pray for me. Peace'Easy and God Bless!
25, Winnipeg, CAI am very involved with national and international charity work, it is truly my passion in life to help others. I was born in ukraine and i support a safe house there for young women at risk of human trafficking. I am currently at a point in my life where I want to settle down with someone who is on the same page as me. Over the last few years I have returned back to the church, my faith has grown and I am now teaching Sunday school. I am ukrainian catholic which is a bit different then Roman Catholic but at the core we are more similar then we are different. I am I liberal and I am looking for someone with liberal views also. I love all and do not discriminate others. Promoting peace is dear to my heart. I am a medical cannabis patient, and I might as well state that upfront. My life has changed for the better because of it & would love to educate those who do not know much about it. I am at the point in my life where I am looking for someone stable. I have a good career and would like someone who is settled in their career. I love to travel and hope to do more in the future. I go to the gym and over the past year have lost 25 pounds and plan to continue towards my fitness goals and im looking for someone that enjoys that also, even simple walks/hikes in the park. I love the outdoors. I enjoy cooking and going out to try new dinning places. I am very close with my family and I value family on a high level. I hope to start my own family in the future. I'm new to any online dating but im hoping (& praying) that if it's meant to be, then i will find my match
25, Winnipeg, CAI love spending time in the kitchen, baking is one of my favourite activities. I love reading books and watching Netflix. Any outlet that allows me to be creative and productive is something i will pore myself into.
31, Winnipeg, CA
Browse Catholic Singles by Gender:
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February 11, 2008
BRENDA L. HAWKINS AND ESTATE OF JONATHAN B. HAWKINS, JR., PLAINTIFFS-APPELLANTS,v.GARDEN STATE SURGICAL ASSOCIATES, P.A., AND DR. JENNIFER R. SYREK, DEFENDANTS-RESPONDENTS AND MANOR CARE HEALTH SERVICES, DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3791-05.
Argued November 8, 2007
Before Judges Wefing, Parker and Lyons.
In this medical malpractice action, we granted leave for plaintiff Brenda L. Hawkins to appeal from an order entered on February 2, 2007 granting defendants' motion for summary judgment dismissing the complaint against certain defendants with prejudice on res judicata grounds.
In this case, we address the question of whether a plaintiff, whose medical malpractice complaint was dismissed in one county for failure to file an Affidavit of Merit, may file another medical malpractice complaint in another county against the same defendants alleging essentially the same facts and seeking the same remedies. After carefully considering plaintiff's arguments in light of the applicable law, we hold that she cannot and we affirm the trial court's grant of summary judgment.
On March 18, 2005, plaintiff pro se filed a complaint in Union County against Garden State Surgical Associates, of which Jennifer Syrek, M.D., Alec Simpson, M.D., and David Richmand, M.D., were members, and Muhlenberg Medical Center (the Union complaint). On April 15, 2005, plaintiff filed an amended complaint in Union adding the parties' names to the body of the complaint, which she had omitted in the initial complaint.
On May 24, 2005, plaintiff pro se filed another complaint in Middlesex County against Garden State Surgical Associates and Dr. Syrek (the Middlesex complaint). This complaint was amended on May 30, 2006 to include additional claims.
On July 6, 2005, plaintiff pro se filed another complaint in Union County naming Manor Care as a defendant, alleging that it failed to provide basic emergency treatment to plaintiff's husband.
On August 19, 2005, a case management conference was held in Union County to address discovery issues and the need for an Affidavit of Merit. During the conference, the court advised plaintiff that she must provide an Affidavit of Merit and granted her an additional sixty days to serve the affidavit in accordance with N.J.S.A. 2A:53A-27.
On September 9, 2005, Middlesex denied plaintiff's motion to consolidate the Union and Middlesex cases and indicated that the motion to consolidate should be filed in Union. There is nothing in the record, however, to indicate that plaintiff filed a motion to consolidate in Union. On November 7, 2005, defendants answered the Middlesex complaint.
Meanwhile, plaintiff's time to file an Affidavit of Merit in Union expired and defendants moved to dismiss the complaint with prejudice. On November 4, 2005, the motions were argued and plaintiff, who by then was represented by counsel, was granted additional time to oppose the motions.
On November 10, 2005, however, plaintiff's counsel requested that the motions be decided on the papers because his research did not indicate any case law allowing a further extension of time beyond the 120 days already granted to plaintiff to file an Affidavit of Merit. On November 18, 2005, the Union complaint was dismissed "with prejudice for failure to serve an Affidavit of Merit as required by law." Plaintiff did not appeal that order.
On May 9, 2006, however, plaintiff moved in Union for reconsideration of the November 18, 2005 order pursuant to R. 4:50-1, arguing that per [R. 4:50-1] (a) a mistake was made in the application of the revised Affidavit of Merit statute of 2004 to a medical occurrence from 2003. The Patients First Act was the legislation under which the Affidavit of Merit statute was revised.
Since this was a legislative act, the more stringent statute could only be applied to medical occurrences in 2004 after enactment and beyond. It should not have been applied to this medical malpractice case because the occurrence took place in 2003. Under the initial Affidavit of Merit statute in place in 2003, the Affidavit of Merit that was submitted would have been deemed satisfactory. In addition , per [R. 4:50-1] (b) since this writer began providing legal counsel on the case filed in Middlesex County on March 8, 2006. In analyzing that case, it was necessary to review the case in Union County that had been dismissed. It was during this process that the misapplication of the Affidavit of Merit statute was discovered. It would have not been possible to discover the error in application of the Affidavit of Merit prior to this time.
Finally, per [R. 4:50-1] (f) the additional reason for reinstating the case is in the interest of justice and fair play.
After hearing arguments on the motion for reconsideration, the trial court denied it, stating that the purported Affidavit of Merit did not meet the standard under the pre-amendment statute because it was not a certification under oath as required under N.J.S.A. 2A:53A-27. With respect to plaintiff's argument pursuant to R. 4:50-1(f), the trial court noted that when plaintiff was pro se, the court had explained to her what was required, and when she retained counsel, the court gave her additional time to submit the required affidavit and opposition to defendants' motions to dismiss. Given those circumstances, the court found no reason to vacate the November 18, 2005 order.
On January 2, 2007, the Garden State defendants moved in Middlesex for summary judgment on res judicata grounds, arguing that the dismissal in Union was res judicata with respect to the Affidavit of Merit issue.
On January 14, 2007, plaintiff moved for leave to appeal out of time the dismissal of the Union complaint. We denied the motion and the Supreme Court denied plaintiff's petition for certification. Hawkins v. Muhlenberg Reg'l Med. Ctr., 192 N.J. 70 (2007).
On February 2, 2007, the trial court granted the Garden State defendants' and Dr. Syrek's motions to dismiss the Middlesex complaint with prejudice on res judicata grounds. On March 2, 2007, plaintiff moved for leave to appeal and we granted the motion on April 2, 2007.
In this appeal, plaintiff argues that (1) the Middlesex complaint should be reinstated because it differs from the Union complaint and res judicata is inapplicable; (2) there are disputed material issues of fact; and (3) it is against public policy to bar the medical malpractice complaint because "of a purported technical deficiency related to the Affidavit of Merit filing."
Plaintiff argues that the Union complaint did not involve identical parties and did not result from the same cause of action as the Middlesex complaint. Specifically, plaintiff notes that Garden State was not named as a defendant in the Union complaint. Dr. Syrek, however, is a defendant in both cases and is a member of the Garden State Surgical Associates. Consequently, she is in privity with Garden State. Moreover, to the extent we can determine the allegations in the Union complaint, they are the same as those alleged in the Middlesex complaint.
"The term 'res judicata' refers broadly to the common-law doctrine barring relitigation of claims or issues that have already been adjudicated." Velasquez v. Franz, 123 N.J. 498, 505 (1991). Three elements must be met for res judicata to apply: "[1] the judgment relied upon must be valid, final and on the merits; [2] the parties in the two actions must be either identical or in privity with one another; [3] the claims [in the subsequent case] must grow out of the same transaction or occurrence." Olds v. Donnelly, 291 N.J. Super. 222, 232 (App. Div.), aff'd, 150 N.J. 424 (1997) (citing Watkins v. Resorts Int'l Hotel and Casino, Inc., 124 N.J. 398 (1991)). "For the purposes of res judicata, causes of action are deemed part of a single 'claim' if they arise out of the same transaction or occurrence." Watkins, supra, 124 N.J. at 413. A litigant must present all theories in the first action when seeking to remedy a single wrong. Ibid.
In medical malpractice cases, plaintiff is required to "provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability" that the doctor's treatment "fell outside acceptable professional or occupational standards or treatment practices." N.J.S.A. 2A:53A-27. Plaintiff has sixty days from the date the answer is filed to provide the affidavit and the court may grant no more than one extension up to sixty days. N.J.S.A. 2A:53A-27. Plaintiff's failure "to provide an affidavit or a statement in lieu thereof . . . shall be deemed a failure to state a cause of action." N.J.S.A. 2A:53A-29. Absent extraordinary circumstances, plaintiff's failure to comply with the Affidavit of Merit statute requires dismissal with prejudice. Cornblatt v. Barrow, 153 N.J. 218, 247 (1998). As such, the dismissal of the Union complaint with prejudice is a final adjudication on the merits as to the defendants named in the Union complaint and the claims made in that complaint.
While the facts alleged in the Union complaint are sparse, plaintiff attached a handwritten statement to the complaint adding further allegations regarding defendants' treatment of her husband. When we compare the Union complaint and its appended statement with the Middlesex complaint, it is clear that the allegations stem from the same circumstances and alleged conduct by the defendants. Consequently, the medical malpractice allegations against Dr. Syrek, Garden State Surgical Associates and its other members are res judicata and cannot be raised in any other complaint.
We do not even reach the issue of disputed material facts because the failure to serve a proper Affidavit of Merit is deemed a failure to state a cause of action. N.J.S.A. 2A:53A-29.
Plaintiff further argues that dismissing the Union complaint because of "a purported technical deficiency related to the Affidavit of Merit" is against public policy and legislative intent. We disagree.
"The Affidavit of Merit statute 'is not concerned with the ability of plaintiffs to prove the allegation contained in the complaint,' but with whether there is some objective threshold merit to the allegations. Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989). Only the 'affidavit of an appropriate licensed person' satisfies the merit requirement," N.J.S.A. 2A:53A-27. Cornblatt, supra, 153 N.J. at 292-93. "The risk of having a case dismissed because no affidavit was filed is easily avoided. A timely filed affidavit would prevent the risk of a later dismissal." Id. at 294.
The Affidavit of Merit statute was part of "a package of five tort reform bills to 'bring common sense and equity to the state's civil litigation system.'" Cornblatt, supra, 153 N.J. at 228 (quoting Office of the Governor, News Release 1 (June 29, 1995)). "The overall purpose of the statute is 'to require plaintiffs in malpractice cases to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily could be identified at an early stage of litigation.'" Id. at 242 (quoting In re Petition of Hall, 147 N.J. 379, 391 (1997)). "That initial 'threshold showing' of a meritorious claim is what the statute requires of the Affidavit of Merit." Ibid. In considering whether a certification was acceptable in lieu of an affidavit, the Court stated:
[W]e recognize that, under certain circumstances, a certification could satisfy the purpose of the affidavit requirement as well as the general purpose of the statute.
Those circumstances would also include at the very least the timely filing of a certification otherwise complying with all of the specifications for an Affidavit of Merit; an adequate and reasonable justification and a convincing explanation of just cause and excusable neglect for submitting a certification rather than an affidavit; and, further, that the adverse party was not prejudiced and obtained the requisite notice in that the certification contained the quality and level of information contemplated by the affidavit requirement. Further, a relevant circumstance would involve the plaintiff undertaking prompt measures to comply fully with the statute, including specifically the filing of an affidavit or the agreement of an adversary that the certification provided fully meets the substantive requirements of the statute. [Id. at 240.]
We are, therefore, convinced that dismissal of the complaint for failure to file a timely and sufficient Affidavit of Merit is consistent with the public policy and the intent of the legislature in adopting the Affidavit of Merit statute.
In short, we find no basis upon which to reverse the Middlesex order dismissing the complaint on the grounds of res judicata. The Affidavit of Merit statute is clear and unequivocal. Dismissal of the Union complaint for failure to comply with the statute is a dismissal with prejudice for failure to state a cause of action. N.J.S.A. 2A:53A-29. The dismissal of the Union complaint forever bars plaintiff from bringing an action against the same defendants arising out of the same facts and alleging the same conduct.
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The Making of Sensation Canada 2013 (Part 2)
It's going down this Saturday in Canada!
It's time for the very first Bud Light presents Sensation Canada in Toronto's Rogers Centre.
Every day up until the event Sensation will release a short 'making of Sensation Canada' video, to get you even more excited.
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6 Bedrooms Detached House - £6,000,000
Penn Road, Beaconsfield, HP9
First listed on: 22nd December 2015
Nearest stations: Beaconsfield (0.5 mi)Seer Green (1.9 mi)Watford North (3.8 mi)Bourne End (3.9 mi)High Wycombe (4.2 mi)
Interested in this property? Call See phone number 01494 681234
Further Informations
Property Features
- Magnificent new mansion c 11,000 sq ft
- Halamar Developments
- 1,500 sq ft kitchen/breakfast/family room
- Six bedroom suites
- Self contained staff accommodation
Property Description
Tenure: Freehold
One of the finest landmark properties within this exclusive English town by Halamar Developments.Gracious living in the making; an opportunity to acquire a spectacular new residence built by one of London's bespoke luxury
Albany House will be a magnificent mansion set in secluded, idyllic gardens and grounds of approximately two thirds of an acre. This superior residence combines classic English architectural elegance with contemporary living spaces to create a home of unsurpassed luxury and appeal. This property offers every conceivable luxury that one would expect from a home of this calibre which include the wonderful double height entrance hallway and its wonderfully positioned indoor pool complex.
Associated to the likes of Benjamin Disraeli – the 1st Earl of Beaconsfield before becoming the Prime Minister of England in 1868 and once home to world famous writer Sir Terry Pratchett – Beaconsfield is a genteel and affluent town nestling in the heart of Buckinghamshire. Beaconsfield Old Town offers a number of specialist shops, restaurants, weekly market and the Crazy Bear Hotel all within a couple of minutes drive from Albany House. Beaconsfield New Town is within a short walk and provides a comprehensive range of shopping facilities, including Marks & Spencer's and Waitrose. Also within the town are several boutique fashion shops, restaurants and coffee shops.The area is very popular as a result of its excellent range of schools, both public and independent including the Royal Grammar School for boys and Beaconsfield High School for girls, Merchant Taylor's, Harrow School, Eton College and Wycombe Abbey for Girls. In the centre of the town less than half a mile away from Albany House is a main line train station with a fast and regular service to London Marylebone (journey time approximately 30 minutes). Within easy reach lie some of the most exclusive golf courses in South East England such as Stoke Park in Stoke Poges and Buckinghamshire Golf Club in Denham.
• Heathrow Airport – 16 miles• M25 (Junction 16) – 7 miles• Central London – 26 miles • M40 (Junction 2) – 3 miles• Gerrards Cross – 5 miles• Northolt Airport – 14 miles• Beaconsfield Station – 0.5 miles• Marylebone Station – approximately 30 minutes by Train
Mains water, electricity, gas and drainage.
All viewings must be made strictly by appointment only through the vendor's agent, The Frost Partnership, 01494 681234. Contact: Roger Mead.
South Bucks District Council01895 837 200
1. Particulars: These particulars are not an offer or contract, nor part of one. You should not rely on statements by The Frost Partnership in the particulars or by word of mouth or in writing ("information") as being factually accurate about the property, its condition or its value. The Frost Partnership do not have any authority to make any representations about the property, and accordingly any information given is entirely without responsibility on the part of the agents, seller(s) or lessor(s). 2. Floor Plans/CGI Images etc: The floor plans and CGI images show only certain parts of the proposed property as detailed in the planning application. Areas, measurements and distances given are approximate only.3. Regulations etc: Any reference to alterations to, or use of, any part of the property does not mean that any necessary planning, building regulations or other consent has been obtained. A buyer or lessee must find out by inspection or in other ways that these matters have been properly dealt with and that all information is correct. 4. VAT: The VAT position relating to the property may change without notice. 5. Grammar School catchment areas: Any reference to a property being in a specific catchment area should not be relied upon as a statement of fact and should be verified with the appropriate Local Education Authority. Particulars dated: November 2014. CGI images dated: November 2014.• 5 Large Reception Rooms • 1,500 sq ft Kitchen/Breakfast/Family Room • Double Height Entrance Hall • Unique Dining Room with integrated Aquarium • 1,000 sq ft Master Suite with a Large Balcony, Large En-Suite & Dressing Rooms • 5 Further Bedroom Suites all with Dressing Rooms and En-suites • Cinema • Library • Gym • Indoor Pool Complex • Spa • Wine Room • Excellent Entertaining Space encompassing a Large Bar • Self-Contained integral Staff Suite with Kitchen • Triple Garage • Wonderful landscaped groundsTotal Floor Area: 11,000 sq ft (1,025 sq. m)Total Land Area: 0.6 Acres (0.25 Hectares)Read more
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Listed prices are those submitted to us and may not reflect the actual selling price of this property.
|History Details
|Property listed at £6,000,000
Disclaimer Property reference A56740536EF26B_241972. Details are provided and maintained by The Frost Partnership. Nethouseprices.com makes no warranty as to the accuracy or completeness of aforementioned details.
Disclaimer Property reference A56740536EF26B_241972. Details are provided and maintained by The Frost Partnership. Nethouseprices.com makes no warranty as to the accuracy or completeness of aforementioned details.


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Pearson's Comprehensive Medical Assisting, Third Edition, provides students with the right procedural, people, and professional skills needed to succeed in the medical assisting profession. Teaching and Learning Experience Offers a step-by-step, competency-based approach that covers virtually all facets of the medical assisting profession: *Procedural Skills-Speaks directly to the medical assisting student, presenting all the procedures and tasks that are relevant to the medical assistant role. *People Skills-Covers people and communication skills that are essential to being a successful medical assistant. *Professional Skills-Instills concepts and critical thinking skills needed to succeed as a medical assistant professional.
About Nina M. Beaman, MS, RNC, CMANina Beaman ' Ed.D., MSN, CNE (NLN), RN-BC (PMH), RNC-AWHC, CMA (AAMA) Nina Beaman has been a Certified Medical Assistant since 1994 and has participated actively on the local, state, and national levels of the American Association of Medical Assistants. She is also a triple-certified Registered Nurse with certifications in Nursing Education, Psychiatric/Mental Health and Ambulatory Women's Health. She completed her doctoral dissertation on "Using Disaster Simulation to Promote Volunteerism in Medical Assisting Students." Dr. Beaman teaches at Aspen University and Independence University. Nina owns a Consulting firm, Positive Transitions, where she provides crisis intervention, education, curriculum development, continuing education review, and violence prevention training. A popular speaker and author, she writes on her farm in the Shenandoah Valley of Virginia. In her spare time, she works as a forensic nurse consultant and disaster expert. Kristiana D. Routh ' Kristiana D. Routh is a Registered Medical Assistant through American Medical Technologists. Kristiana has worked in the healthcare field for over 14 years and has a passion to see the field of medical assisting grow and develop. Her experience in the educational field of medical assisting includes teaching, curriculum development, working closely with accrediting bodies, and writing multiple textbook and supplemental resources for both instructors and students. Kristiana also owns her own business, Allied Health Consulting Services. Her business focuses on accreditation trends throughout healthcare, writing and developing educational content for the field of medical assisting, and also project management services for physicians and health care facilities. Kristiana and her family live in Girard, Pennsylvania near beautiful Lake Erie. Lorraine M. Papazian-Boyce, MS, CPC ' AHIMA-Approved ICD-10-CM/PCS Trainer Lorraine M. Papazian-Boyce is an award-winning author and instructor. She authored the Pearson text ICD-10-CM/PCS Coding: A Map for Success, which received the Most Promising New Textbook Award-2013 from the Textbook and Academic Authors Association. She was named Educator of the Year - Instruction - 2011 by Career Education Corporation (CEC).Lorraine has taught at several career colleges, both traditional and online. She has over 30 years of experience in healthcare administration as office manager- biller and coder- management consultant to hospitals, nursing homes, and physicians- and former owner of a medical billing and coding service. Lorraine has contributed to numerous textbooks and journals in the health professions field and is a nationally-known speaker. She holds a M.S. in Health Systems Management- the CPC credential- and is an AHIMA-Approved ICD-10-CM/PCS Trainer and Ambassador. Janet R. Sesser ' Janet R. Sesser, a Registered Medical Assistant with American Medical Technologists, holds a Master of Science in Health Education and Bachelor of Science in Health Care Management. Her background includes many years working as a practicing medical assistant for various types of practices and as a cardiopulmonary technician. For the past 25 years, she has worked in postsecondary education teaching and writing allied health curricula. Sesser is very involved with American Medical Technologists, serving as an elected member of the AMT Board of Directors. She is a recipient of the Medallion of Merit Award, the highest honor bestowed by AMT to a medical assistant, and she is a frequent presenter at national medical conferences. Ron Maly ' Ron Maly currently holds certifications as a RMA (AMT) and CPhT (PTCB). He obtained his B.S. degree in Biology, Natural Science and Pre-Med with a minor in Chemistry from Midland Lutheran College in Fremont, Nebraska in 1989. In 1991 he received his M.A. degree (with thesis) in Biology from the University of Nebraska at Omaha. The abstract from his thesis has been nationally published. In 1992 Ron was employed with Harris Laboratories (currently Celerion) in Lincoln, NE as a Chemist and later as a Validation Scientist. In his seven years with Harris Laboratories, Ron had numerous scientific papers on LC/MS/MS pharmaceutical-based research presented at national conferences. In 1999 Ron began working as a medical assistant/histotechnologist for a Moh's micrographic surgeon in Omaha, NE. During this time he also began working part-time as a pharmacy technician. From 2005 to present, Ron has taught at the college level as a Pharmacy Technician Program Coordinator for Hamilton College/Kaplan University, Council Bluffs, IA- Medical Assisting Program Coordinator and Medical Billing and Coding Coordinator at the Omaha School of Massage and Healthcare of Herzing University, Omaha, NE and is currently the Medical Assisting Program Coordinator and Interim Pharmacy Technician Program Coordinator for National American University, Bellevue, NE.
Details Book
|Nina M. Beaman, MS, RNC, CMA
|Prentice Hall
|Data Published
|30 May 2014
|Format Book
|PDF, Epub, DOCx, TXT
|Number of Pages
|1560 pages
|Age +
|18 years
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Violet Superhero/Big BusinessSeries Website »
Episode Guide »
Violet Superhero - There's a new superhero in town when Violet becomes "The Framer." It seems like her "superpowers" aren't much help while WordGirl is doing all the crime-fighting. But when the Butcher attacks "The Framer" comes to the rescue. Big Business - Mr. Big rigs Businesspaloozafest, putting on a spectacle at his booth, in order to win ownership of the biggest building in town. It's up to Huggy to disarm the mind control ray so that WordGirl can stop Mr. Big from cheating-and speaking gibberish.
CommentsShare your thoughts, questions, and comments on "WordGirl" here.
Vermont PBS educates, informs, entertains and inspires Vermonters to be lifelong learners and engaged in their community.
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Recorded live at the 2016 Burlington Discover Jazz Festival, we're back with Season 2 of Discover Jazz
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text: Stores Dealer Profile THE FLOOR SHOW CARPET ONE FLOOR & HOME Shaw believes in its people, products and mission. Purchasing flooring can be daunting, but we're committed to making easier for you every step of the way. Shaw creates a better future – for our customers, our people, our company and our communities. This attention to detail and extreme focus can be found in our beautiful, innovative products. Store Information GET DIRECTIONS 20695 Timberlake Rd Lynchburg, VA 24502-7206 434-237-6233 http://www.floorshowcarpetonelynchburg.com Flooring CarpetTile & StoneHardwoodLaminateResilient View all stores


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Our Price
3.0 2
- Start/Stop Push-Dial to start operation
- LED Indicator
- Cord wrap
- Cold Stir setting stirs without warming
- Safety feature standby mode after 30 seconds of non-use
- Boil dry/Overheat protectio
- Jug lid with Breville Assist©
- Product Dimensions: 15.25 x 15.25 x 26cm
Hot milk drinks are best when made with the smallest bubbles. Rather than a bubble bath, it's that creamy consistency that creates a rich hot chocolate or a smooth latte or cappuccino.
The Milk Café uses induction heating and spinning to make those small bubbles. Simply choose the appropriate frothing disc - latte for a creamy result, the cappuccino disc for more froth - fill with enough milk for one or up to three cups, select your temperature, and start.
The Milk Café will froth and turn itself off when the desired temperature is achieved. And as it uses induction heating, you can simply place the jug in the dishwasher for easy cleaning.
Measuring cap for measuring and adding ingredients once mixing has started (hot chocolate, cocoa powder, chai tea, syrup, flakes)
Brand Description


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Google Toolbar tracking you even when you say "no"
The fact that the Google Toolbar is used to track data on what you're doing online is not new. It's well known that if you activate the "Enhanced Features" Google will track all the pages you visit. That on itself is reason for many to question the way Google handles privacy-issues.
The blogger shows that even though he turned off the toolbar for the specific window the toolbarqueries.google.com server shows it kept on tracking the movements of the user. He made a video of what he did here.
He then also tested whether or not the toolbar would continue to track even when it was disabled via "Manage Add-Ons" and he showed how difficult it is to turn the enhanced features off.
The post really hits the privacy - issue straight on the head. The Google Toolbar already was debatable and if this is true it will be open for discussion even more. Google so far hasn't responded.
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Herman Miller's Liveable Office Award 2013
June 7, 2013
Herman Miller Asia Pacific has launched a competition to discover the region's most engaging and user-focused workplace – opening Monday 10 June.
Herman Miller Asia Pacific has launched a competition to discover the region's most engaging and user-focused workplace – opening Monday 10 June.
Herman Miller's Liveable Office Award is calling for workplace designs that incorporate environmentally responsible design, express an organisation's culture and enable employees to come together and work effectively in teams. Opening on Monday 10 June, the competition promotes workplaces that focus on driving collaboration, rather than merely accommodating technology.
Entries will be assessed on how effectively the workplace:
– Helps people engage
– Brings teams together
– Enables work to happen anywhere
– Demonstrates environmental responsibility
– Encapsulates the organisation's identity and brand
Competition entries may be submitted in two categories: Commercial Business or Small Business, and must be submitted online at hermanmillerreach.com between 10 June and 19 July 2013. Projects must be based in the Asia Pacific region. Entries are open to a team or company, not an individual within the company.
Prizes include a US$5000 cash prize for the Commercial Business category, and a Herman Miller office makeover worth US$5000 for the Small Business category.
The competition forms part of Herman Miller's 'REACH Singapore: The Power of Place' program, a two-day design event held at the Marina Bay Sands in Singapore from 1-2 August. First held in Hong Kong in 2011, REACH Singapore will include a number of global leaders in design as the 'HM Presents' event, with speakers including Studio 7.5 and Eames Demetrios.
In addition, the program includes the Essential Eames: A Herman Miller Exhibition at the Marina Bay Sands ArtScience Museum; Spontaneous City, a pop-up office concept showcasing Herman Miller's workplace products; as well as the THEN X TEN: The Power of the Poster exhibition.


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KIN's Secret Yeasayer Show in San Francisco
On Saturday night big brother Microsoft reached out to San Francisco hipsters with a free "secret" Yeasayer show. Supporting the company's new phone "KIN," several shows were scheduled in San Francisco and New York. Though "KIN" is obviously not "kin," the event's hospitality (free drinks + lots of loving) would lead you to think otherwise.
*photos by Patrick KellyAs Microsoft attempts to saddle up with PBR branding, plaid "vintage" shirts, and everything "generation awesome" (that's us), the actual practicality of the phone is unclear. It allows you to take photos, and tweet them easily--can't you do that already? The phone's "About Us" eerily reads, "We saw how you talk, tweet, and post in real life," so they clearly are stalking us, "Then we designed KIN to communicate as naturally as you." The truth is I talk awkwardly, which is why I write. If things go to plan KIN will replace your siblings, and be a better listener too. Here at betterPropaganda & SFCritic, we might be receiving some promotional examples, and will happily let you know if the phone does indeed allow you to communicate better than your Aunt Sally.
Over 2,000 people Facebook RSVP'ed for what was about 300 spots (which, after press was really like 250). We're not brushing the dirt off our shoulders, just forewarning you if you intend on hitting up one of these events in the future. On the day of the show the location and time was announced. Eager fans waited in a line (6pm Facebook messages started going up "I'm in line!") prior to doors opening to the public (8pm).
Yeasayer greeted an ecstatic crowd, some already dancing. Like their new single "Ampling Alp," sounds of indie-psych-rock rang through the night. Fans were definitely passionate, but the band seemed a lure--as an equal distribution of fans lined up for free drinks, while other danced, creating a cycle of drink line, drink, dance that repeated until one's vouchers were exhausted.
This was the first of series of events or so I'm told. Expect others, and expect that we'll keep you in the loop. Personally, I love corporate sponsored events, even if I have to be inundated with consumerism--because hey, if they support my cause (seeing good music) at least we're both winning.
[ play ] | [ download mp3 ] Yeasayer - O.N.E.
[ play ] | [ download mp3 ] Yeasayer - Ambling Alp
[ play ] | [ download mp3 ] Yeasayer - 2080
[ play ] | [ download mp3 ] Yeasayer - Sunrise