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January 8, 2010
UNITED STATES OF AMERICA, RESPONDENT,v.ESEQUIEL QUESADA GARCIA, MOVANT.
Movant is a federal prisoner proceeding pro se with a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Movant seeks post-conviction relief on the basis that his trial counsel rendered ineffective assistance. Before the court is respondent's motion seeking leave to conduct discovery, for an order declaring a waiver of attorney-client privilege, and for an extension of time to file an answer to the motion.
On November 20, 2002, movant and two co-defendants were charged in an indictment with conspiring to manufacture at least 1,000 marijuana plants, manufacturing at least 1,000 marijuana plants, and possessing a firearm in furtherance of drug trafficking crimes. Following a jury trial, movant was convicted on all counts and sentenced to a total of 181 months imprisonment, a five-year supervised release term on each count to run concurrently, and $300 in special penalty assessments.
Movant filed an appeal of his judgment of conviction on June 9, 2004. Therein, he argued that his conviction should be reversed because of jury misconduct. He also argued that his sentence was improperly imposed. The parties subsequently filed a joint motion for remand in light of the United States Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005). That motion was granted, and the matter was remanded for sentencing proceedings consistent with the decision in United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005). On March 20, 2006, the assigned district judge ruled that his previously issued judgment would remain in effect. On May 2, 2007, the Ninth Circuit filed a memorandum decision affirming the district court's judgment and sentence.
On July 30, 2008, movant filed the instant § 2255 motion, alleging that his trial counsel rendered ineffective assistance. By order dated September 8, 2008, respondent was directed to file an answer to the § 2255 motion within thirty days. On October 8, 2008, respondent filed a motion for: (1) leave to take discovery in the form of a deposition of movant's trial counsel and the issuance of a subpoena for any documents related to the issues raised in the § 2255 motion; (2) an order declaring that movant had waived the attorney-client privilege with respect to all issues implicated in his claim of ineffective assistance of counsel; and (3) a ninetyday extension of time to file a response to the § 2255 motion to allow completion of discovery and/or receipt of all deposition transcripts. In that motion, respondent's counsel represented that movant's trial counsel had responded to an inquiry by indicating that he had information and documents relevant to movant's allegations contained in the pending § 2255 motion but would only provide them upon the issuance of a court order declaring a waiver of attorney-client privilege and directing him to provide the information and documents.
On October 24, 2008, this court issued an order which granted respondent's motion for a ninety-day extension of time to respond to the § 2255 motion. The court further ordered movant to respond to respondent's requests for discovery and for a court order waiving the attorney-client privilege within twenty-one days. The court noted that any deposition of movant's trial attorney would appear to require special arrangements because movant is proceeding with the § 2255 motion in pro per and is currently in prison. Specifically, the court suggested that movant would be unable to attend the deposition unless it was conducted at his place of confinement. Although movant received a copy of the court's October 24, 2008 order, he did not file a response to respondent's motion for discovery and for a court order waiving the attorney-client privilege. He did, however, file letters with the court on February 25, 2009, and April 2, 2009, asking whether respondent had filed an opposition to his § 2255 motion.
On April 6, 2009, respondent filed a second motion requesting discovery and a forty-five day extension of time to file a response to the § 2255 motion in order to allow completion of discovery. Respondent explained that he had been waiting for a resolution of his discovery request before filing a response to the § 2255 motion, and that he failed to notice or to notify the court that movant had not responded to his request for discovery. Respondent sought relief from its "inadvertent error" in this regard, and requested an additional "forty-five day extension of time from the time that the Court issues a ruling on the instant motion to respond to Garcia's § 2255 petition, and a ruling on its previous motion so that it can obtain from [movant's trial counsel] the discovery that it needs to prepare and file its response to Garcia's petition." (April 6, 2009 motion, at 5.) Respondent's counsel stated that he had communicated with movant's trial counsel and believed he could obtain the information he sought in discovery through documentary evidence and a declaration signed by trial counsel, thereby obviating the need for a deposition. (Id. at 6-7.)
On May 1, 2009, movant filed a document entitled "Motion for a Finding of Waiver by the Government of its Right to Contest Petitioner's § 2255." Movant argues that because of respondent's "dilatory conduct," this court should "simply... resolve petitioner's claims raised in his habeas petition without need [for] any response from the Government."
(May 1, 2009 motion, at 2.) Movant also argues that, in light of respondent's failure to file a timely opposition, the court should "accept petitioner's allegations in his § 2255 petition as true for purposes of deciding whether to grant an evidentiary hearing." (Id.) Movant contends that this court cannot resolve "material factual issues which turn upon a credibility determination of the witnesses... by simply choosing between affidavits without an evidentiary hearing."
(P. & A. attached to May 1, 2009 motion, at 3 & n.3.)
On May 18, 2009, respondent filed a "Memorandum in Response" to movant's May 1, 2009 motion for a finding of waiver. Therein, respondent argues that only by receiving the relief that the United States requests, namely, information, documents, and sworn written statements from [movant's trial counsel], can the United States properly respond to Garcia's § 2255 petition.
Alternatively, the United States respectfully requests that the Court order that Garcia has waived the attorney-client privilege and allow the prosecutor to examine at an evidentiary hearing [movant's trial counsel] on the matters on which Garcia claims that his attorney was ineffective. In addition, the United States seeks leave of Court to file its response to Garcia's petition thirty days after the Court conducts such an evidentiary hearing so that the United States can properly respond to Garcia's allegations.
(May 18, 2009 Mem. at 2-3.) Respondent argues that it would be "unfair to bar the United States from responding to Garcia's petition when the United States has never received a final ruling on its motions." (Id. at 10.)
On July 8, 2009, movant filed a "Traverse" to respondent's May 18, 2009 "Memorandum in Response." In that document, movant claims that he did not receive a copy of respondent's motion for discovery and was therefore unable to file a reply. (Traverse at 2.) He also argues that respondent has "forfeited" the right to oppose the § 2255 motion because of his failure to address the merits of the motion. (Id.) Movant argues that respondent's actions have violated his right to due process and have resulted in an unconscionable delay in obtaining a resolution of the § 2255 motion. (Id. at 3.) Movant requests that this court consider his § 2255 motion "without reference to the untimely pleadings... submitted by respondent" and "adjudicate the merits of petitioner's § 2255." (Id. at 4.) Alternatively, movant requests an evidentiary hearing on his claims.
In his § 2255 motion, movant alleges that his trial counsel rendered ineffective assistance of counsel in three ways. First, he argues that his trial counsel improperly failed to file a motion to suppress the marijuana and firearms evidence seized as a result of the warrantless search of the outdoor marijuana garden. Second, movant argues that his trial counsel improperly failed to obtain a Spanish/English language interpreter for movant's use during trial. In this regard, movant states that his "difficulty with the English language prevented his understanding of the criminal proceedings before and during trial" and that he was unable to communicate with his trial counsel and assist in his defense. (P. & A. attached to § 2255 motion, at 8.) Third, movant contends that his trial counsel failed to advise him on the alternatives to proceeding to trial; such as pleading guilty to the charges against him, either with or without a plea agreement. He states that his trial counsel's sole advice was that he should "take the case to trial." (Id. at 10.)
Respondent's counsel, on the other hand, argues that [trial counsel] did not move to suppress the warrantless search of the outdoor marijuana garden because [movant] lacked standing to challenge the search as he did not own or possess the property searched and, in any event, the search of the outdoor marijuana garden was proper under the open fields doctrine. The United States expects that [trial counsel's] information and documents will establish that [movant] did not need to request a Spanish language interpreter as [movant] is bilingual and sufficiently fluent in both languages to comprehend and competently participate in the trial proceedings. The United States believes that [trial counsel's] information and documents will prove that [trial counsel] properly advised [movant] on the alternatives to proceeding to trial, such as pleading guilty to the Indictment charges, but that [movant] chose a trial on the charges instead.
(May 18, 2009 Mem. at 11.)
Through his discovery motion, respondent's counsel seeks documentary evidence and testimony from movant's counsel. The specific information sought is as follows:
1. [Trial counsel's] explanation why he declined to move to suppress the evidence seized as a result of the warrantless search of the outdoor marijuana garden;
2. [Trial counsel's] explanation why he declined to obtain a Spanish/English language interpreter for Garcia's use during trial; and
3. [Trial counsel's] explanation on whether he advised [movant] on the alternatives to proceeding to trial, such as pleading guilty to the Indictment charges. (May 18, 2009 Mem. at 5-6.) Respondent also seeks "any documents, including correspondence, memoranda, and notes, reflecting communications between [trial counsel] and [movant] in which any of the three subjects listed above, and which are the subjects of [movant's] § 2255 petition, are discussed." (Id. at 6.) As a basis for good cause, respondent explains that it "cannot properly respond to [movant's] allegations of [trial counsel's] ineffectiveness without obtaining discovery from [trial counsel] on the communications and discussions between [trial counsel] and [movant] on issues raised in [movant's] § 2255 petition to determine whether and why [trial counsel] did and/or did not perform the acts that [movant] claims rendered his attorney ineffective." (Id. at 2.)
1. Respondent's Request for Discovery
Pursuant to the Rule 6(a) of the Rules Governing Section 2255 Proceedings, "a judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Criminal Procedure or Civil Procedure, or in accordance with the practices and principles of law." A party requesting discovery must provide "reasons" for the request. Id. "[D]iscovery is available... at the discretion of the district court judge for good cause shown, regardless of whether there is to be an evidentiary hearing." Jones v. Wood, 114 F.3d 1002, 1009 (9th Cir. 1997).
The court finds that respondent has established good cause for discovery in the form of an affidavit from movant's trial counsel related to the three claims of ineffective assistance of counsel contained in the instant § 2255 motion. Respondent has articulated a plausible reason why it needs the requested affidavit from movant's trial counsel. In order to file an appropriate response to movant's § 2255 motion, respondent will need to know what trial counsel did or did not do and why. Accordingly, respondent's request for this discovery will be granted.
The court does not find good cause for the issuance of an order authorizing a subpoena for records or an order requiring the production of documentary evidence. Under Rule 6(b) of the Rules Governing Section 2255 Proceedings, a party requesting discovery must "specify any requested documents." Respondent's broad request for "any documents" in trial counsel's file which may be relevant to the allegations contained in movant's § 2255 motion is insufficiently specific and appears to be in the nature of a fishing expedition. Accordingly, respondent's request for documents will be denied at this time.
The court also does not find good cause to hold an evidentiary hearing at this time. After respondent files an answer, the court will determine whether an evidentiary hearing is necessary.
2. Respondent's Request for a Waiver of Attorney-Client Privilege
When a petitioner in a habeas corpus action raises a claim of ineffective assistance of counsel, he waives the attorney-client privilege as to the matters challenged. See Bittaker v. Woodford, 331 F.3d 715, 718-19 (9th Cir. 2003) (" [A] litigant waives the attorney-client privilege by putting the lawyer's performance at issue during the course of litigation..."); Osband v. Woodford, 290 F.3d 1036, 1042 (9th Cir. 2002). The waiver applies to all information necessary to give the opposing party a fair opportunity to defend. Bittaker, 331 F.3d at 719. If a district court exercises its discretion to allow discovery subject to an attorney-client waiver, it must enter appropriate protective orders clearly delineating the contours of the limited waiver before the commencement of discovery. Id. at 728.
Here, the court finds that movant has waived the attorney-client privilege with regard to any communications between movant and his trial counsel regarding: (1) counsel's decision not to file a motion to suppress evidence obtained as a result of the warrantless search of the outdoor marijuana garden; (2) movant's fluency in the English language and ability to comprehend his trial proceedings and assist his trial counsel without the aid of a Spanish/English interpreter; and (3) whether movant's trial counsel advised movant of the alternatives available to him to resolve the criminal charges against him prior to trial. By separate order the court will limit the use of information and materials obtained by respondent as a result of movant's waiver.
3. Movant's Request for an Evidentiary Hearing and/or a Waiver of the Opportunity to File an Answer
As described above, movant requests that this court enter an order finding that respondent has "waived" the opportunity to file an answer to the instant § 2255 motion because of respondent's failure to file an answer within ninety days of this court's October 24, 2008 order. The court does not find good cause to enter such an order. Respondent's failure to answer movant's § 2255 motion was based, in part, on movant's failure to respond to respondent's discovery motion, as ordered by the court. Under the circumstances presented here, the court finds that respondent's failure to file an answer was, at most, the result of excusable neglect. See Fed. R. Civ. P. 6(b)(1)(B). Accordingly, movant's motion for a finding of "waiver" will be denied and respondent will be granted an additional extension of time to file an answer.
Accordingly, IT IS HEREBY ORDERED that:
1. Movant's May 1, 2009 motion for a finding of waiver and for evidentiary hearing is denied;
2. Respondent's October 8, 2008 and April 6, 2009 motions for an order declaring a waiver of attorney-client privilege are granted. Subject to the protective order issued concurrently with this order, the court declares a waiver of movant's attorney-client privilege with respect to the claims made in the instant § 2255 motion, as described above.
3. Respondent's October 8, 2008 and April 6, 2009 motions for leave to conduct discovery are granted in part and denied in part. Respondent may obtain from movant's trial counsel a declaration addressing the three claims of ineffective assistance of counsel raised in the § 2255 motion currently pending before the court, as described above.
4. Respondent's April 6, 2009 motion for an extension of time to file an answer is granted. Respondent shall file an answer to the instant § 2255 motion within forty-five days from the date of this order.
5. After the answer has been filed, the court will determine whether an evidentiary hearing is necessary for the appropriate disposition of this matter.
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June 21, 2011
MARK W. SCHOENING,PLAINTIFF,v.MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,DEFENDANT.
Plaintiff Mark W. Schoening ("Plaintiff") brings this action seeking to reverse the decision of the Commissioner of the Social Security Administration (the "Commissioner" or the "Agency") denying his application for Disability Insurance Benefits ("DIB"). The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. For the reasons stated below, the decision of the Agency is REVERSED and REMANDED for further proceedings.
On September 1, 2004, Plaintiff filed an application for Disability Insurance Benefits ("DIB") claiming that he became disabled on June 1, 2002. (Administrative Record ("AR") 162-65). Plaintiff was denied benefits by initial determination on December 22, 2004. (AR 44-49). On February 1, 2005, Plaintiff requested a hearing before an ALJ. (AR 52). The hearing took place on October 21, 2005. (AR 698-711). Plaintiff appeared with counsel and testified. (AR 698). On November 18, 2005, Administrative Law Judge ("ALJ") Jan Donshbach denied benefits. (AR 36-43). At the request of the Plaintiff, the Appeals Council reviewed the unfavorable decision of the ALJ. (AR 62-64). The Appeals Council vacated the November 18, 2005 decision and remanded the claim. (AR 62).
The second hearing took place in Long Beach, California on April 10, 2007 with ALJ Edward C. Graham presiding. (AR 680-697). Plaintiff appeared with counsel and testified. (AR 680). On April 20, 2007, the ALJ issued a decision denying Plaintiff benefits. (AR 712-22). The Plaintiff requested the Appeals Council review the ALJ decision, and upon review, the Appeals Council again remanded Plaintiff's claim for a third hearing. (AR 79-83, 85-87).
On August 4, 2009, the third hearing again took place in Long Beach, California with ALJ Edward C. Graham presiding. (AR 664-79). Plaintiff appeared with counsel and testified. (AR 664). The ALJ issued an unfavorable decision on October 14, 2009. (AR 13-29). Plaintiff requested review by the Appeals Council which was denied on March 4, 2010. (AR 9-12, 6-8). On May 6, 2010, Plaintiff filed the instant action.
To qualify for disability benefits, a claimant must demonstrate a medically determinable physical or mental impairment that prevents him from engaging in substantial gainful activity and that is expected to *fn1 result in death or to last for a continuous period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work he previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).
To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 416.920. The steps are:
(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.
(2) Is the claimant's impairment severe? If not, the claimant is found not disabled. If so, proceed to step three.
(3) Does the claimant's impairment meet or equal the requirements of any impairment listed at 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is found disabled. If not, proceed to step four.
(4) Is the claimant capable of performing his past work? If so, the claimant is found not disabled. If not, proceed to step five.
(5) Is the claimant able to do any other work? If not, the claimant is found disabled. If so, the claimant is found not disabled.
Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. § 416.920(b)-(g)(1).
The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante, 262 F.3d at 953-54. If, at step four, the claimant meets his burden of establishing an inability to perform the past work, the Commissioner must show that the claimant can perform some other work that exists in "significant numbers" in the national economy, taking into account the claimant's residual functional capacity ("RFC"), age, education and*fn2 work experience. Tackett, 180 F.3d at 1100; 20 C.F.R. § 416.920(g)(1). The Commissioner may do so by the testimony of a vocational expert or by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 (commonly known as "the Grids"). Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). When a claimant has both exertional (strength-related) and non-exertional limitations, the Grids are inapplicable and the ALJ must take the testimony of a vocational expert. Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000).
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The court may set aside the Commissioner's decision when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996).
"Substantial evidence is more than a scintilla, but less than a preponderance." Reddick, 157 F.3d at 720. It is "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Id. To determine whether substantial evidence supports a finding, the court must "'consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing that conclusion, the court may not substitute its judgment for that of the Commissioner. Reddick, 157 F.3d at 720-21.
The ALJ Failed to Provide Specific and Legitimate Reasons To Reject The Treating Physician's Opinion
Plaintiff contends that the ALJ failed to provide specific and legitimate reasons to reject the opinion of his treating physician, Dr. Sandler. (Memorandum in Support of Complaint ("Complaint Memo.") at 6, 17). Specifically, Plaintiff argues that the ALJ failed to properly consider Dr. Sandler's findings regarding Plaintiff's ability to tolerate non-concentrated forms of pulmonary irritants, Plaintiff's ability to stand and walk in a day, Plaintiff's ability to use his hands for manipulation, and Plaintiff's mental health. (Id. at 9-13). This Court agrees.
Where a treating physician's opinion is not contradicted by another doctor, it may be rejected only for "clear and convincing" reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Even if the treating physician's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing specific, legitimate reasons, supported by substantial evidence in the record. Id. (citing Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)); Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (citing Reddick, 157 F.3d at 725). The opinions of treating physicians are entitled to special weight because the treating physician is hired to cure and has a better opportunity to know and observe the claimant as an individual. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).
The opinion at issue here is that of Dr. Joel M. Sandler, who the ALJ recognized as Plaintiff's treating physician. (AR 23). Dr. Sandler began treating Plaintiff in February of 2005. (AR 488). The record demonstrates that Dr. Sandler treated Plaintiff from March of 2007 to July of 2009. (AR 485-94, 598-02, 604-11, 620-49) . On January 6,*fn3 2009, Dr. Sandler completed a residual functional capacity questionnaire, (AR 486-87), and a mental work restriction questionnaire. (AR 488-494).
The ALJ rejected Dr. Sandler's January 2009 assessment, "even though he []is the treating physician," because the ALJ concluded that Dr. Sandler's opinion was "brief, conclusory and inadequately supported by the clinical findings." (AR 19). The ALJ explained that he gives "greater weight to the signs, test results, and medical findings noted in the longitudinal medical records" than to an "unsupported assessment . . . completed for the sole purpose of qualifying [Plaintiff] for benefits." (AR 19-20). However, the ALJ's rejection of Dr. Sandler's medical opinion as conclusory and unsupported by clinical findings is contradicted by the record. Indeed, the record contains ample office visit reports and treatment notes which support and explain Dr. Sandler's findings. (AR 598-02, 604-11, 620-49). For example, Dr. Sandler examined Plaintiff's respiration during physical exams(See AR 598, 601), tested Plaintiff for tender points during musculoskeletal physical exams (AR 599, 606), and prescribed Plaintiff medicine for attention deficit disorder (AR 488, 606, 611, 632). Thus, the Court concludes that the ALJ's rejection of Dr. Sandler's findings as conclusory and unsupported by clinical findings is not legitimate.
1. The ALJ Erred In Rejecting Dr. Sandler's Respiratory Limitations
With respect to Plaintiff's respiratory limitations, Dr. Sandler found that Plaintiff could not tolerate any exposure to dust, fumes, and gases. (AR 487). In his treatment notes, Dr. Sandler noted that Plaintiff "has a daily nonproductive cough[,] . . . occasional tightness in his chest[,] . . . [he] wheezes at night[,] and uses an albuterol inhaler." (AR 642). In addition, Dr. Sandler noted that "[Plaintiff] currently can walk one block without dyspnea and has to stop." (Id.). Based on these findings, Dr. Sandler diagnosed Plaintiff with chronic obstructive pulmonary disease [COPD] with an asthmatic component. (AR 598, 622, 642). Dr. Sandler noted in July 2009 that COPD continued to be an active problem for Plaintiff. (AR 598).
The ALJ rejected Dr. Sandler's findings regarding Plaintiff's respiratory limitations because he opined that Dr. Sandler's findings were not supported "by the information in the treatment notes". (AR 20). After rejecting the findings of Dr. Sandler, the ALJ relied on the findings of a consulting physician, Dr. Taylor, to determine Plaintiff's respiratory limitations. (Id.). The ALJ noted that Dr. Taylor found "a history of COPD [chronic obstructive pulmonary disease], but normal chest and lung excursions without wheezing, rhonchi or rubs." (Id.). Dr. Taylor recommended that Plaintiff be "only occasionally . . . exposed to any fumes, dust, pollutions [sic], extremes in temperature, gasses, and chemicals based on pulmonary problems." (AR 560). The ALJ therefore concluded that Plaintiff needs to avoid only "concentrated exposure to pulmonary irritants." (AR 19).
The Court finds that the ALJ's rejection of Dr. Sandler's respiratory limitations because they are allegedly not supported by the doctor's treatment notes is not a legitimate reason. To the extent the ALJ rejected Dr. Sandler's findings as brief and conclusory, the record contradicts this finding as set forth above. After examining Plaintiff's lungs during office visits, Dr. Sandler diagnosed Plaintiff with COPD. (AR 598, 601). While Plaintiff's lungs were clear on some office visits, Dr. Sandler noted in July 2009 that COPD continued to be an active problem for Plaintiff. (AR 598). Additionally, Dr. Sandler's findings are corroborated by the findings of Dr. Sedgh, who conducted an internal medicine consultation and found that Plaintiff suffered from "[a]sthma" and "expiratory weezing." (AR 432). Dr. Sedgh concluded in his functional assessment that Plaintiff "should avoid exposure to dust and fumes secondary to asthma." (Id.). Thus, to the extent that the ALJ rejected Dr. Sandler's opinion with respect to Plaintiff's respiratory condition as conclusory and unsupported by Dr. Sandler's treatment notes, these reasons are not supported by the record.
2. The ALJ Erred In Rejecting Dr. Sandler's Diagnosis of Fibromyalgia and Plaintiff's Physical Limitations
With respect to Plaintiff's physical condition, Dr. Sandler diagnosed Plaintiff with fibromyalgia. (AR 599, 596). Dr. Sandler made this assessment after he found "[m]ultiple tender points in [the] muscles of [Plaintiff's] trunk [and] upper and lower extremities [which meet] the criteria for fibromyalgia." (AR 599). In his treatment notes, Dr. Sander stated that "[plaintiff] has tenderness over the paralumbar area and over the lumbar vertebrae at about L1, 2, and 3." (AR 606). Dr. Sandler also diagnosed Plaintiff with Rheumatoid Arthritis and Chronic Pain Syndrome. (AR 598, 604, 606). In light of these findings, Dr. Sandler limited the amount of weight that Plaintiff may lift and carry, as well as his ability to sit, stand, or walk for extended periods of time. (AR 486). Dr. Sandler limited the use of Plaintiff's hands for simple grasping, pushing & pulling, and fine manipulation. (AR 486). Dr. Sandler also prescribed Plaintiff pain medications such as Lortab and Neurontin. (AR 598).
The ALJ rejected Dr. Sandler's diagnosis of fibromyalgia because "the medical records do not show . . . objective corroborative findings or show that the claimant has ongoing treatment for fibromyalgia." (AR 21). In forming his opinion, the ALJ relied on the report of Dr. Taylor who found "no evidence of deformities, swelling or tenderness to direct palpation of any joint." (AR 21, 558). The ALJ stated that Plaintiff only had "subjective pain complaints and [reported] that he sometimes says he has subjective tenderness." (AR 21). The ALJ further stated that fibromyalgia, "if it is severe, should result in objective functional restrictions . . . [but] the medical records do not show any severe functional limitations secondary to pain." (Id.). The ALJ therefore concluded that Plaintiff "demonstrates no functional limitations of the hands or fingers." (Id.).
The ALJ failed to provide legitimate reasons to reject Dr. Sandler's diagnosis of fibromyalgia. The Ninth Circuit has recognized that objective findings "do not establish the presence or absence of fibromyalgia." Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 869, 872 (9th Cir. 2004), overruled in part on other grounds, Abatie v Alta Health & Life Ins. Co., 458 F.3d 955, 969 (9th Cir. 2006). As stated in Jordan:
[F]ibromyalgia's cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia.
370 F.3d at 872; accord Salomaa v. Honda Long Term Disability Plan, __ F.3d __, 2011 WL 2040934 at *10 (9th Cir. May 26, 2011). Instead, a fibromyalgia diagnosis can only be confirmed by a specific test where a patient reports pain in five parts of the body and when at least eleven of eighteen points cause pain when palpated by an examiner's thumb. (Id.). Here, the ALJ erroneously rejected Dr. Sandler's fibromyalgia diagnosis based on the lack of objective findings. Moreover, Dr. Sandler found "multiple tender points in [the] muscles of [Plaintiff's] trunk [and] upper and lower extremities [which meet] the criteria for fibromyalgia." (AR 599). Dr. Sandler also prescribed Plaintiff pain medicines Lortab and Neurontin which are common treatments for fibromyalgia. (AR 598). On remand, the ALJ must either provide specific and legitimate reasons to reject the evidence of Plaintiff's fibromyalgia or analyze its affect on Plaintiff's ability to work.
3. The ALJ Erred In Rejecting Dr. Sandler's Opinion Regarding Plaintiff's Mental Capacity
With respect to Plaintiff's mental health, Dr. Sandler diagnosed Plaintiff with attention deficit disorder, and noted that he becomes easily upset and has difficulty focusing and ordering his thoughts. (AR 488-499). Plaintiff's medical records indicate a long history of mental health treatment with a variety of different physicians. Specifically,*fn4 at issue in the present case is Dr. Sandler's mental work restriction questionnaire which he completed on January 6, 2009. (AR 488-94). In assessing the affect of Plaintiff's mental condition on his ability to perform work, Dr. Sandler found that Plaintiff has a severe impairment in his ability to complete a normal work day without interruptions from psychologically based symptoms and performing at a consistent pace without an unreasonable number of and length of rest periods. (AR 489). In addition, Dr. Sandler noted that Plaintiff has a marked impairment in his ability to: maintain attention for two hour segments, to work in coordination with or in close proximity to other people without being distracted by them, to make simple work-related decisions, and to get along with co-workers or peers without distracting them or exhibiting behavior extremes. (AR 488-89). Dr. Sandler prescribed Plaintiff with a number of medications designed to treat his mental condition including Ritalin, Desipramine, and Diazepam. (AR 598, 632).
The ALJ rejected Dr. Sandler's mental work restrictions because Dr. Sandler is not a mental health specialist and because he was not treating the Plaintiff for mental health problems. (AR 23-24). The ALJ therefore declined to "endorse Dr. Sandler's assessment and [gave] no weight to any of the functional limitations alleged on his disability form." (AR 24). The ALJ specifically emphasized that "NO intellectual testing was done [and that] [n]o psychiatric evaluation was performed." (AR 23) (emphasis in original). As a result, the ALJ relied instead on the less restrictive mental limitations reported by consultative physician, Dr. Izzi (AR 23-24, 551).
The ALJ did not give legitimate reasons based on the record for rejecting Dr. Sandler's assessment of Plaintiff's mental condition. Although the ALJ emphasized that no intellectual testing or psychiatric evaluations were performed, Dr. Sandler noted in an office visit report on January 5, 2009 that the Plaintiff has "ADD which has been documented with a TOVA test , which was authorized on March 8, 2007, and done with *fn5 Dr. Middleton." (AR 23, 488, 606). Dr. Sandler also noted on March 5, 2007 that Plaintiff was diagnosed with "ADHD which had been validated by a psychologist in the past." (AR 611). Although Dr. Sandler is not a mental health specialist, as noted earlier, he treated the Plaintiff for mental health conditions by prescribing him psychiatric drugs in addition to treating the Plaintiff for other health conditions. (AR 598, 622, 632). Plaintiff's extensive mental health records corroborate Dr. Sandler's medical assessment. (See supra n.4). The ALJ's rejection of Dr. Sandler's mental health restrictions because he is not a mental health care specialist is not a proper rationale in light of the extensive record of mental health treatment and tests from a variety of treating doctors, including psychologists. Although ordinarily a lack of expertise in the mental health field may be a legitimate reason to discount a doctor's opinion on mental limitations, here it was not a legitimate reason. Although Dr. Sandler is not a mental health specialist, given the quantity and quality of evidence contained in the records regarding the mental health treatment he provided Plaintiff, the ALJ should have given some weight to the mental limitation findings of Dr. Sandler. The ALJ must either provide specific and legitimate reasons to reject Dr. Sandler's opinion or incorporate the mental health limitations provided by Dr. Sandler into the RFC determination.
Remand for further proceedings is appropriate where additional proceedings could remedy defects in the Commissioner's decision. See Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000); Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). Because the ALJ failed to provide specific and legitimate reasons for rejecting the treating physician's opinion, or, instead, to fully credit the opinion, the case must be remanded to remedy this defect. Upon remand, the ALJ must either provide specific and legitimate reasons to reject Dr. Sandler's opinion or incorporate the limitations provided by Dr. Sandler into the RFC determination.
Consistent with the foregoing, IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties.
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Snooki just gave birth less than a month ago, but she's already hitting the town for a girls' night out -- and from the looks of things, she's been wasting no time getting back to the gym.
The 24-year-old "Jersey Shore" star gave birth to son Lorenzo on Aug. 26, but motherhood hasn't changed the first-time mom, who is once again rocking her infamous orange spray tan.
On Sept. 23, Snooki tweeted a photo of herself and her "besties" before a girls' night out, and the pint-size star looks like she's lost nearly all her baby weight.
The reality star gained only 35 pounds while pregnant and hasn't been shy about her quest to drop the pregnancy pounds. On Sept. 20, Snooki tweeted:
Loving my Lorenzo! But can't wait 2 lose baby weight. Gettin my swag back with my workout/zantrex routine as soon as I'm done breastfeeding!
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Wilmington firefighter Ardy Hope was due to retire, chief expecting additional charges
By Amy Cherry 11:34am, December 2, 2016 - Updated 9:42am, December 3, 2016
VIDEO: WDEL's Amy Cherry reports.When given just hours to live, Ardythe Hope fought on for two more weeks.
Hope died Thursday after being hospitalized for 68 days at the Crozer Chester Medical Center following the Sept. 24, 2016 Canby Park rowhome blaze--which authorities have labeled as arson. She suffered burns over 70 percent of her body.
With the Thanksgiving holiday approaching, family and friends were notified her condition was worsening. She refused to give up then, hanging on and fighting for another two weeks before finally succumbing to her injuries.
"The family and I, we want to thank Crozer Medical Center, especially the burn unit, for everything that they have done for Ardy Hope; they have been a true angel on our shoulders," said Goode.
Goode revealed Friday that Hope, a 23-year veteran, planned on retiring from the Wilmington Fire Department next month, in January of 2017.
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"Ardy met with me in September, prior to the Lakeview Road fire to plan for her retirement this January," he said. "She was leaving the department to become a nurse as she was in the final stages of completing her nursing degree."
A somber fire chief said Hope began her career with the odds stacked against her. She suffered from a brain tumor.
"That she fought through, and continued on in this job to receive several commendations, awards, and to prosper, to be able to manage all of those things, now to move on from this job and career to start another job and career as a nurse helping others in a different fashion," he said.
Hope is the the third line-of-duty death caused by a fire that also killed her firefighter brothers, Capt. Christopher Leach and Lt. Jerry Fickes. She's the first female in the department's history to die while on the job and the only second African American to die in the line-of-duty.
"She is an extremely well fighter, she is a wonderful mother and woman--you have to be to be a female firefighter in a male-dominated world. You have to be (tough) to be an African-American firefighter in a predominately Caucasian fire service," remarked Goode.
Goode said he and others received news of Hope's death while attending funeral services for Mayor Williams's son-in-law, Wilmington Police Lt. Jonathan Hall.
The sister-in-law to Wilmington Police Chief Bobby Cummings, Hope leaves behind three children, two of whom are still in high school.
"We love Ardy Hope, and we will always remember her, and maintain her honor," Goode said.
Goode also released funeral arrangements for the fallen firefighter.
There'll be a public viewing from 10 AM to noon December 10th at the Chase Center, then a public funeral at 1.
A reception will be held after the service.
Goode added a third murder charge is expected to be lodged against Beatriz Fana-Ruiz, the daughter of the homeowner where the blaze occurred, who has already been charged with arson and murder in the deaths of Leach and Fickes.
Firefighter Brad Speakman was released from the hospital on November 3, 2016.
DJ McAneny and Frank Gerace contributed to this report.
Contact Amy Cherry at firstname.lastname@example.com or Follow @acherry13 on Twitter
or like her on Facebook.
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Pair who killed Smyrna teen during drug-deal-turned-robbery in Dover plead guilty
By DJ McAneny 3:43pm, December 2, 2016Two men charged with shooting a Smyrna High School student to death in Dover pled guilty to their respective roles, Department of Justice officials announced Friday.
According to the DOJ, Damier Harmon, 20, and Bruce Manlove, 21, both from Dover, pled guilty to the May 2015 murder of Gary Adams, 19, in the Walker Woods neighborhood.
The three began to fight during a marijuana-deal-turned-robbery, and Adams was shot once. The pair was arrested in Pennsylvania.
Harmon pled guilty to second-degree murder and possession of a firearm during the commission of a felony, while Manlove pled guilty to first-degree robbery and possession of a firearm during the commission of a felony. The face 18 years to life, and 6 to 50 years in prison, respectively, when they are sentenced in February.
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DSP: PA man hit and killed by marked police vehicle in Felton
By Frank Gerace 10:20am, December 3, 2016A Pennsylvania man is dead after a police vehicle hit him as he stood on a road in Felton.
Christopher Thompson pulled onto the shoulder of State Route 12 near Chimney Hill Road around 1:45 Saturday morning because something was wrong with the trailer he was pulling behind his pickup truck, Delaware State Police said.
Thompson had jacked up one of the trailer's tires and was standing in the eastbound lane of State Route 12 when he was hit by a marked police SUV driven by an off-duty Harrington police officer.
Thompson, who was wearing dark clothing, was pronounced dead at the scene.
Police say neither Thompson nor the off-duty cop were under the influence, and that the officer wasn't speeding.
State Route 12 was closed at the scene for about 5 hours after the crash.
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Gold Alert issued for Claymont woman
By Frank Gerace 12:06pm, December 3, 2016 - Updated 12:26pm, December 3, 2016
Laura StevensonA Gold Alert is out for a Claymont woman who's been missing since about noon Friday.
Laura Stevenson was last seen walking around Philadelphia Pike and Harvey Road, and they're concerned for her well-being, New Castle County Police said.
She's described as white, 5-5 and 150 pounds and was wearing a lime-green jacket, black shirt, black pants and black sneakers.
Anyone who knows where Stevenson is can call New Castle County Police at (302) 573.2800 or go to the department's website, nccpd.com.
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Police release composite sketch of Glasgow Park indecent exposure suspect
By Frank Gerace 11:38am, December 3, 2016Investigators hope a composite sketch of a teen who exposed himself twice in Glasgow Park will lead to the teen's arrest.
In the first incident, the teen approached a woman who was running in the park and touched her buttocks, New Castle County Police said.
The second happened the day before Thanksgiving, and involved the suspect opening the door of a portable toilet and apologizing for doing so, only to return a short time later and expose himself.
Police describe the teen as black, 6-3 and about 170 pounds with a thin build, weaing a dark hoodie, blue jeans and sneakers.
His hairstyle is described as a high-top fade, and you can see the composite sketch at wdel.com.
Anyone who can help investigators track the suspect down can call County Police at (302) 573.2800 or submit a tip via the department's website at www.nccpd.com.
Tipsters may also call Crime Stoppers at (800) TIP.3333 or visit the New Castle County Police Department Facebook page.
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Wilmington man pleads guilty to tracking down ex, stabbing and choking her for hours
By DJ McAneny 4:40pm, December 2, 2016 - Updated 5:44pm, December 2, 2016
Wayne Carter/WDEL fileA 26-year-old Wilmington man who tracked down his ex-girlfriend while she was housesitting for a friend, entered while she was in the shower, and abused her over the course of several hours, pled guilty to his crimes, Department of Justice officials announced Friday.
Officials said Wayne Carter tracked the victim down in February 2016, entered the Kershaw Street home at 3 a.m. while she was in the shower and, over the course of several hours, hit her, beat her with a cable television wire, wrapped a chain around her neck to choke her, and cut her with a large kitchen knife.
Carter pled guilty to home invasion, two counts strangulation, and two counts possession of a deadly weapon during the commission of a felony.
A presentence investigation was ordered by the judge, before sentencing in February 2017.
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The traditional tree lighting at Rockwood Park officially kicks off the holiday season at the park and museum
By Joe Irizarry 10:15pm, December 2, 2016
Rockwood Tree lighting.Rockwood Park is now lit up for the holidays.
County Executive Tom Gordon pushed the button to light the tree, and the University of Delaware Children's Choir were singing Christmas carols.
Gordon thanked County Council as well as county employees to help make the park the spectacle that is during the holidays.
"Thousands of people are going to come through here in this month to see this light up the faces of so many children thinking they might be in the North Pole," said Gordon. "It makes me real proud that the government can do something like this to expose such a beautiful mansion."
Jacob Watson is one of those children already enjoying the lights.
"I've been here a lot and without the lights the place just looks a little spooky at night, but when it's all lit up--it just looks beautiful, it looks actually like the North Pole--except it's not as snowy," said Watson.
Jim Wellece is originally from Scotland, and he's been in Delaware for 18 years, this was his first Christmas experience at Rockwood Park.
"Beautiful, this is our first time here we brought the little one that I'm carrying on my back, and she's been oohing and aahing at all of the lights so far, and we're looking forward to going around and seeing what else they have here. Good fun so far," said Wellece.
This weekend is the 16th Annual Holiday Open House at Rockwood Museum featuring entertainment, children's activities, characters in costumes and even pictures with Santa.
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Pedestrian hit on Wilmington's South Market Street Bridge dies
By Frank Gerace 11:51am, December 3, 2016
(Photo by WDEL's Mike Phillips)A man hit by a car on Wilmington's South Market Street Bridge has died of his injuries.
The pedestrian was hit late Friday afternoon, Wilmington police said.
County Paramedics treated him at the scene and took him to Christiana Hospital, where he was pronounced dead.
The accident shut the bridge down for a time, and traffic was diverted onto Martin Luther King Boulevard and I-95 southbound.
Police are asking anyone who may know something about the accident to call Sergeant James Karshner at 302.571.4414.
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Already-incarcerated man charged with gunning man down in Sparrow Run in 2012
By Frank Gerace 10:56am, December 3, 2016 - Updated 11:07am, December 3, 2016
Kevin "Chevy" MillerA man already behind bars is now under arrest for allegedly shooting another man to death in 2012.
37-year-old Kevin "Chevy" Miller shot and killed Jeremiah "Farmer" McDonald on Heron Court in Sparrow Run in July 2012, New Castle County Police said.
Miller, who was being held at the Vaughn Correctional Center on unrelated counts, was charged with McDonald's murder Friday.
Miller, who was already a convicted felon at the time of the shooting, is now facing charges of first-degree murder, possession of a firearm during a felony and possession of a firearm by a person prohibited from having one.
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Police stop pedestrian loitering next to 'No Loitering' sign, find gun and marijuana
By DJ McAneny 4:54pm, December 2, 2016
Malachi Dendy/New Castle County PoliceA 19-year-old pedestrian stopped in the Wilton community by a Mobile Enforcement Team conducting surveillance in the area was charged after authorities located a firearm and drugs on his person, New Castle County Police said Friday.
According to authorities, Malachi Dendy was loitering near Deen and Pell streets, directly next to a "No Loitering" sign on Wednesday, November 30, 2016.
Police said they observed Dendy roll and smoke a marijuana cigarette, and stopped him to confirm he was in possession of marijuana. A search of his person revealed a concealed, fully loaded handgun in addition to more marijuana, according to authorities.
After obtaining a search warrant, police said they found more marijuana and ammunition in his residence in the unit block of Deen Street.
Dendy was charged with possession with intent to distribute marijuana, carrying a concealed firearm, possession of a firearm and a controlled substance at the same time, possession of marijuana, possession of drug paraphernalia, and loitering. He was committed to the Howard R. Young Correctional Institution in lieu of $13,003 secured bond.
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Pizza delivery driver declines Leipsic robbers' demands, pushes gun barrel away during hold-up
By DJ McAneny 12:53pm, December 2, 2016A 47-year-old pizza delivery driver was robbed of his pizza at rifle point--but not his cash, when he declined to turn over his money and pushed the gun barrel away, Delaware State Police said Friday.
According to authorities, the Poliseno's Pizzeria employee was driving around a neighborhood looking for an address that didn't exist in the area of Walnut and 2nd streets in Leipsic at about 6:45 p.m. on November 27, 2016, when an individual flagged him down near from where the order had reportedly been called.
As he got out and spoke with the first individual, placing the pizza on the trunk of the car as he explained the price, a second suspect approached form the front of the vehicle armed with a rifle, demanding the driver's cash.
The driver pushed the barrel of the gun away and refused to turn over any funds, causing the suspects to flee with the pizza, but no cash.
The victim said the first suspect was a white male, the second, a light-skinned black male. Both appeared to be between 14 and 16 years old, with the white male appearing a bit younger. Both were described as being about 120 to 135 lbs., with the black male being a bit bulkier. The white male was in a red hoodie, the black male, a dark hoodie, and armed with a unknown weapon.
A third suspect was also seen fleeing the area with the pair, but no description was available.
Anyone with information is urged to contact Delaware State Police at 302.698.8443 or Delaware Crime Stoppers at 1.800.TIP.3333.
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'Key player' in New Castle County heroin ring from Wilmington gets 14 years in prison
By DJ McAneny 3:53pm, December 2, 2016A man who was one of more than 40 people indicted in connection to a New Castle County heroin-dealing ring has been sentenced to 14 years in prison.
According to Department of Justice officials, Adrin Smack, 25, of Wilmington, was a "key player" in a drug trafficking ring busted up during Operation Smack Down in May 2015.
Smack sold heroin throughout the Sparrow Run development in Bear, and he pled guilty to four counts drug dealing, possession of a firearm by a person prohibited, and second-degree conspiracy in March 2016.
More than 40 people were indicted on charges ranging from drug distribution to weapon possession to possession of illegal drugs to conspiracy.
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Police impersonators stop, assault, and rob pregnant NY woman
By Andrew Sgroi 9:57am, December 2, 2016 - Updated 10:24am, December 2, 2016A New York woman was the unwitting target of some police impersonators on Maryland's Eastern Shore.
According to Maryland State Police, the pregnant woman from Brooklyn, New York was driving solo in a rental car to Norfolk, Virginia on Thursday, December 1, 2016, when three men pulled her over in Snow Hill, Maryland.
The vehicle the suspects were using was described as a black Chevrolet SUV, with unknown Maryland registration plates and the victim reported the vehicle was equipped with red and blue flashing lights.
Shortly before 6:00 p.m., Maryland State Police from the Salisbury Barrack responded to a 911 call from the victim, who said she was driving away from the location where she had been pulled over, assaulted and robbed by the men. Maryland State Police say they instructed the victim to pull over and that troopers would locate her.
After troopers found the victim in the area of Powellville Road and Webb Road, in Powellville, their investigation determined the victim was stopped and assaulted in the area of Whiton Road at Snow Hill Road, in Worcester County. After the incident, the woman said she began driving away from that area before calling police.
The victim stated when the suspect vehicle activated the red and blue lights, she pulled over, thinking it was a police vehicle. She said the first suspect approached the driver side of the car and sprayed pepper spray into the vehicle before spraying it onto a towel that he held over her face. The victim added that when she got out of the car, she was punched in the stomach by that same suspect.
The victim informed the second suspect was holding a small, black handgun and wearing a gold badge on a chain around his neck. He stole her purse, which contained cash and an ornately jeweled belt of great value. The victim indicated the third suspect remained at the rear of the suspects' vehicle.
The imitators, who fled the scene in their vehicle, were described as follows:
Police advised that an exhaustive search of the region throughout the night was unsuccessful in locating wither the suspects or their vehicle.
The 38-year-old victim was treated for exposure to pepper spray and examined at Peninsula Regional Medical Center before being released later that night.
Anyone who might have seen these vehicles stopped in the area of Whiton Road and Snow Hill Road on December 1, 2016, or who may have seen a vehicle matching the suspect vehicle description, was urged to contact Maryland State Police at 410.749.3101, or 410.641.3101. Callers could remain anonymous.
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Man, 36, shot in abdomen and buttocks in Wilmington
By DJ McAneny 12:20pm, December 2, 2016A 36-year-old man was shot in the abdomen and buttocks in Wilmington, authorities announced Friday.
According to Wilmington Police, officers responding to a shots-fired complaint in the 2900 block of Baynard Boulevard at approximately 10:10 p.m. on December 1, 2016, found the victim at the scene.
He was treated by New Castle County Paramedics and transported to Christiana Hospital in serious, but stable condition.
The circumstances of the shooting remain under investigation, and anyone with information regarding this incident is urged to contact Det. Jeffrey Dickerson at 302.576.3961.
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Senior Firefighter Ardy Hope fondly remembered by Wilmington City Council
By Joe Irizarry 1:02am, December 2, 2016 - Updated 9:50am, December 2, 2016
VIDEO: Council remembers fallen firefighter Ardythe Hope.Wilmington City Council is mourning the death of Senior Firefighter Ardythe Hope.
Hope's death was announced Thursday by Wilmington Fire Chief Anthony Goode.
Council members at Thursday night's meeting recounted personal dealings with Hope.
"Ardythe gave the ultimate sacrifice to give her life to save someone else's. I actually went through nursing school with Ardy, and I know she's been a dedicated person, always a caring, loving individual," said Councilman Bob Williams.
Council held a moment of silence for Hope during its regular meeting.
"Terrific person, I knew her personally, I served on some boards with her, just gone too soon," said Council President Theo Gregory. "It's sad, it's a sad day for the city of Wilmington that one of our firefighters passed away."
Councilwoman Sherry Dorsey Walker was also among those who spoke about Hope.
"Ardythe Hope is a woman of great integrity, she is a great mother, and the city has lost a giant. And when I say a giant, I'm talking about a woman who could enter the room and shift the atmosphere with her personality," said Dorsey Walker.
Gregory added that the hope is all three firefighters who have died as a result of the Canby Park row home fire will be honored in some way.
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Thank you listeners! WDEL's Feed A Friend Food Drive raises nearly $11K
By Lauren Huet 5:34pm, December 1, 2016 - Updated 11:38pm, December 1, 2016
VIDEO: Lauren Huet reports on Feed A Friend Food DriveWDEL's 11th annual Feed A Friend raised a total of $10,916--that will supply at least 2,183 meals for homeless and hungry Delawareans.
The food drive benefits five local organizations: The Newark Area Welfare Committee, the Emmanuel Dining Room, the Sunday Breakfast Mission, YWCA Delaware, and St. Paul's Church Outreach Center.
"We are a rescue mission, and thereby we are a homeless shelter," said Reverend Tom Laymon, president of the Sunday Breakfast Mission. "We shelter hundreds, sometimes over 300 homeless men, women, and children every night. We provide meals to those folks, community folks, and people who are in our residential program. Nearly 1,000 meals are provided each day. We also provide addiction rehabilitation services."
Laymon said $5.00 provides several meals for the mission.
"We're providing good food," said Laymon. "Good nutrition to provide for them to get them off on a great start, and to provide them a way into other kinds of programs which will get them off the street, and out of homelessness, and out of poverty."
During the holiday season your donation is crucial. The Sunday Breakfast Mission uses the money from the food drive to provide Christmas brunch and often Christmas dinner. It's more than a meal, for many it's a turning point. Laymon said over the last 10 years, the food drive has provided between 10,000 and 20,000 meals for the Sunday Breakfast Mission.
"Critical meals, because they come at that critical time of the year. That Christmas, that holiday season when folks are hurting and most affected by this, and we maybe turn lives around," said Laymon.
The mission is seeing more homeless and hungry Delawareans than ever before.
"We see lot's of children. In 1963 only 3 percent of the homeless were women and children," said Laymon. "Now we're seeing 60 to 70 percent of the homeless coming into us are women and children. We're seeing lots of women, lots of children, lots of men, all of them younger than they were before."
Providing meals can change lives.
"If we can catch these families, particularly catching these children, we may turn around these folks and they won't be homeless. Perhaps these kids won't become homeless as adults," said Laymon.
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Proposal to fund Eden Park study is officially introduced
By Joe Irizarry 12:01am, December 2, 2016 - Updated 12:35am, December 2, 2016
Eden Park proposal to fund study is introduced at Wilmington City Council.A capital budget amendment to authorize the use of $200,000 in to fund a study to improve Eden Park is introduced at Wilmington City Council.
The money is leftover from the completed Spencer Plaza renovation, and Council President Theo Gregory's proposal is an architectural and engineering study with any money left over put towards actual improvements.
Gregory wants turf installed while also improving the bleachers, lighting and scoreboard.
Councilwoman and Council President-elect Hanifa Shabazz says this proposal would alleviate the fears of many that opposed the Baynard Stadium/Salesianum proposal.
"Renovating Eden Park would address that--so there would be a local park that the smaller groups could have access to and do what was really central for them--also be able to raise money and have control of the concession stands," said Shabazz.
Councilman Bob Williams has no issues with this proposal, he just wishes this money was found when he was trying to improve certain city parks.
"It's a little disheartening knowing that there's money that could have went into these three parks," said Williams. "We're talking 3rd and Connell, 4th and Rodney and Father Tucker Park. Father Tucker Park is still unfinished. We're still looking for $68,000 to get that done. Hopefully they can find another pot of money somewhere else."
The proposal still has to go before City Council again for a vote.
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decided: October 9, 1970.
COMMONWEALTH EX REL. JOHNSON, APPELLANT,v.RUNDLE
Appeals from orders of Court of Common Pleas of Philadelphia County, May T., 1965, No. 905, March T., 1965, No. 5415, and order of Court of Oyer and Terminer of Philadelphia County, Jan. T., 1946, No. 517, in cases of Commonwealth ex rel. Robert Johnson v. Alfred T. Rundle, Superintendent, and Commonwealth v. Robert Johnson.
Leon H. Kline, for appellant.
Samuel T. Swansen, Assistant District Attorney, with him James D. Crawford, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Mr. Chief Justice Bell and Mr. Justice Eagen concur in the result. Mr. Justice Pomeroy took no part in the consideration or decision of this case. Concurring and Dissenting Opinion by Mr. Justice Roberts.
[ 440 Pa. Page 487]
In 1946 appellant pleaded guilty to murder generally. Following a degree of guilt hearing, he was found guilty of murder in the first degree and sentenced to death, a sentence which was later commuted to life imprisonment. No appeal was taken. In 1965 appellant filed a habeas corpus petition, in which he alleged that his confession was elicited at a critical stage in the proceedings, but without the presence of counsel, and hence its admission into evidence at the degree of guilt hearing constituted error. The hearing court found against appellant, the petition was dismissed, and an appeal taken.
In 1968 appellant filed a PCHA petition, alleging that the confession was obtained unconstitutionally through physical force, that this confession primarily motivated his guilty plea, and hence the plea was invalid, and that he was denied his right of appeal. Again the hearing court found against appellant, and an appeal was taken. Both cases being on appeal at the same time, we had them consolidated and argued together.
Appellant's initial contention is that his confession was elicited at a time when counsel's presence was constitutionally required. The evidence shows that immediately after appellant had his preliminary hearing the police kept him in their custody and interrogated him, securing his confession, rather than returning him to the city prison to which the magistrate had committed him. Since this interrogation occurred after the preliminary hearing, petitioner urges that it therefore constituted a critical stage in the proceedings, and that the
[ 440 Pa. Page 488]
Sixth Amendment required the presence of counsel. See Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199 (1964); Commonwealth v. Dickerson, 428 Pa. 564, 565, 237 A.2d 229, 230 (1968) (dissenting opinion); cf. Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999 (1970). But see Commonwealth ex rel. Mount v. Rundle, 425 Pa. 312, 319-20, 228 A.2d 640, 644-45 (1967).
Appellant's contention has now been answered by the Third Circuit in United States ex rel. Dickerson v. Rundle, 430 F. 2d 462 (3d Cir. 1970) (en banc) (Hastie, C. J., Freedman and Adams, JJ., dissenting). There the majority of the court held that a defendant, interrogated after his preliminary hearing, and pursuant to an ex parte bring-up order, "stood in the same legal shoes as did the defendant in Massiah," id. at 467, and hence his interrogation did constitute a critical stage requiring counsel. Massiah's protection, however, is not to be retroactively applied, so that Dickerson's confession was therefore properly utilized. See United States ex rel. Allison v. New Jersey, 418 F. 2d 332 (3d Cir. 1969).
Although appellant in the instant case did not even have the protection of an ex parte bring-up order, the principles enunciated by the majority of the Third Circuit in Dickerson are still applicable. Appellant's interrogation held after his preliminary hearing was a critical stage, but the confession cannot be attacked because it was obtained before the United States Supreme Court's decision in Massiah. Hence appellant's claim for relief on this ground must be rejected.
Appellant's next claim centers around his contention that his confession was physically coerced. Appellant testified at the PCHA hearing that the police secured his confession by beating him with a rubber hose; his mother testified that when she went to see him at the police station appellant told her about this
[ 440 Pa. Page 489]
beating. Trial counsel also testified that he had investigated the incident, but had decided not to press the matter. No testimony was presented at the PCHA hearing to contradict appellant's.
The burden of proof in this collateral proceeding, however, is upon the petitioner, see Commonwealth v. McBride, 440 Pa. 81, 269 A.2d 737 (1970), and the hearing court chose to disbelieve his testimony. We are unable to find an abuse of discretion in this finding, particularly in light of the fact that appellant waited so long before asserting it, and so the finding must be affirmed. Likewise we must sustain the hearing court's finding that the plea was knowingly and intelligently entered, a finding not vigorously disputed in this appeal. Further, since the confession has not been shown to have been improperly obtained, we need not consider whether it primarily motivated the plea.
Appellant's final contention is that he was denied his right to appeal. Appellant was found guilty of first degree murder after a plea of guilty to murder generally, and hence the denial of his right to appeal would be prejudicial, there being the possibility of non-constitutional errors in his degree of guilt hearing. See, e.g., Commonwealth v. Zaffina, 432 Pa. 435, 248 A.2d 5 (1968); cf. Commonwealth v. Walters, 431 Pa. 74, 244 A.2d 757 (1968) (holding different rule applicable for conviction of second degree murder). This claim was raised in appellant's petition, appellant testified at the PCHA hearing that he was not informed of his right to appeal, and one of appellant's trial counsel testified that he did not think he mentioned anything about it. Nevertheless, the hearing court made no finding on this point. While normally we would remand for a further hearing, the record of appellant's original trial is silent on the question whether he was informed of his right to appeal, or of his right to free
[ 440 Pa. Page 490]
counsel on appeal. Thus the burden of proof on this issue rested with the Commonwealth. See, e.g., Commonwealth v. Ezell, 431 Pa. 101, 244 A.2d 646 (1968); Commonwealth v. Mumford, 430 Pa. 451, 243 A.2d 440 (1968); Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968). Since the Commonwealth produced no evidence on the point at the PCHA hearing, appellant must be given the right to file post-trial motions as though timely filed. See Commonwealth v. Faison, 437 Pa. 432, 441-43, 264 A.2d 394, 398-99 (1970).
The orders of the Court of Common Pleas, Trial Division, Criminal Section, are affirmed in part, and vacated in part, and the case is remanded for further proceedings consistent with this opinion.
Orders affirmed.
Concurring and Dissenting Opinion by Mr. Justice Roberts:
[ 440 Pa. Page 491]
While I fully agree with the majority's decision to grant appellant his right to an appeal as though timely filed, I cannot agree that his confession was constitutionally obtained. I still retain the view, set out more fully in my dissent in Commonwealth v. Dickerson, 428 Pa. 564, 565, 237 A.2d 229, 230 (1968), that an interrogation occurring after a preliminary hearing, holding an accused for grand jury action, is a critical stage, and that counsel is accordingly required. While the Third Circuit has now apparently adopted this view, see United States ex rel. Dickerson v. Rundle, 430 F. 2d 462 (3d Cir. 1970), relief is now denied on the basis that Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199 (1964), is not retroactive. See United States ex Page 491} rel. Allison v. New Jersey, 418 F. 2d 332 (3d Cir. 1969). I cannot agree.
Massiah is a Sixth Amendment case: "Here we deal . . . with a . . . conviction . . . where the specific guarantee of the Sixth Amendment directly applies. . . . We hold that petitioner was denied the basic protections of that guarantee. . . ." 377 U.S. at 205-206, 84 S. Ct. at 1202-1203 (citations omitted). It relied heavily on other Sixth Amendment cases, such as Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157 (1961); White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050 (1963), and Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55 (1932), as well as the concurring opinion in Spano v. New York, 360 U.S. 315, 326, 79 S. Ct. 1202, 1209 (1959). See Massiah, 377 U.S. at 204-205, 84 S. Ct. at 1202. These right to counsel cases "have all been made retroactive, since the 'denial of the right must almost invariably deny a fair trial.' See Stovall v. Denno, 388 U.S. 293, 297, 87 S. Ct. 1967, 1970, 18 L. Ed. 2d 1199." Arsenault v. Massachusetts, 393 U.S. 5, 6, 89 S. Ct. 35, 36 (1968) (holding White v. Maryland, supra, retroactive). Accord Commonwealth ex rel. Firmstone v. Myers, 431 Pa. 628, 631-32, 246 A.2d 371, 373 (1968). See also Tehan v. United States ex rel. Shott, 382 U.S. 406, 416, 86 S. Ct. 459, 465 (1966) (articulating difference between right to counsel, and Fifth and Fourth Amendment cases). Hence I believe that Massiah is likewise retroactive, and that appellant's confession is consequently constitutionally infirm.
Additionally, I must note my agreement with Judge Adams' dissenting opinion in United States ex rel. Dickerson v. Rundle, supra, in which he notes that the majority's conclusion in Dickerson is inconsistent with the United States Supreme Court's recent decision in Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999 (1970). There the Supreme Court held that an accused
[ 440 Pa. Page 492]
must have counsel "'at any stage of the prosecution, formal or informal, in court or out.'" Id. at 7, 90 S. Ct. at 2002 (emphasis added). This again supports my view that once the accused is held for the grand jury, the prosecution has commenced, and the accused is consequently entitled to the assistance of counsel at every stage thereafter. In the instant case, as in Dickerson, the accused was prejudiced by the denial of counsel at a later stage, and under Coleman, relief must therefore be granted. See United States ex rel. Dickerson v. Rundle, 430 F. 2d 462, 472 (Adams, J., dissenting).
Accordingly, with all deference to a majority of the Third Circuit, it is my view that the above United States Supreme Court decisions require us to give appellant relief. Certainly, I might add, there is nothing in either federal or state law which compels us to follow Dickerson, a four-to-three decision of the Third Circuit, and, in my judgment, erroneously deny to appellant the relief to which he is entitled. Hence I would grant appellant a new degree of guilt hearing, free of the taint of the unconstitutionally obtained confession.
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