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United States District Court, Seventh Circuit
October 31, 2013
MIKE D. RUSSELL, Plaintiff,v.SUPERINTENDENT MORECI, et al., Defendants.
JOHN W. DARRAH, District Judge.
Plaintiff Mike D. Russell, represented by appointed counsel, has brought this action against Defendants, various prison officials at the Cook County Department of Corrections, in their individual capacities pursuant to 42 U.S.C. § 1983, after he was attacked by other inmates while he was a pre-trial detainee. Defendants have moved for summary judgment, and the Motion has been fully briefed.[1] For the reasons discussed below, that Motion is granted in part and denied in part.
The following facts are undisputed, except where otherwise noted.[2] Plaintiff has been in custody at the Cook County Department of Corrections (the "CCDOC") since June 2008. (Defendants' Rule 56.1 Statement of Uncontested Material Facts ("SOF") ¶ 5.) At the time of the attack at issue, he was 19 years old.
There are two main affiliations of gangs in the CCDOC: the "People, " which consists of gangs such as the Vice Lords, Black Stones and Latin Peoples; and the "Folks" or "Folks Nation, " which consists of gangs such as the Gangster Disciples (the "GD") and Latin Folks. (Plaintiff's Rule 56.1(b)(3) Statement of Additional Facts ("SAF") ¶ 1.) Plaintiff used to belong to the GD but left that gang while in jail and joined a third, small gang known by the initials "ATG."[3] (SAF ¶ 9.) ATG consists of former members of other gangs. According to Plaintiff, ATG members have disavowed their former gang membership and consider themselves neutral between the People and the Folks. (SAF ¶ 4.) When a former GD member joins ATG, he is subject to retaliation for violating gang rules because the GD members are considered to be members for life. ( Id. ¶ 7.) In 2010, ATG had approximately twelve members located on the school wing, Tier 2A of the CCDOC, including Plaintiff, until he was transferred out in April 2010. ( Id. ¶¶ 6, 18.)[4]
It is undisputed that, in the months preceding the attack on Plaintiff, the leaders of Folks/GD alliance had ordered their members to attack ATG members, and that prison officials, including Defendant Superintendent Moreci, were aware of those orders. The CCDOC's Criminal Intelligence Unit ("CIU") prepared several reports from December 2009 through April 2010, stating that the Folks/GD had ordered its members to attack ATG members, describing the animosity and fights between the Folks/GD and the ATG, and remarking that "violence is imminent." (SAF ¶¶ 10-13, 19.) The CIU reports, which were received by Moreci, also reflected that the animosity was not one-sided and that the ATG members bore at least some responsibility for the fights: the April 2010 report stated that "there are ten detainees affiliated with A.T.G. on tier [2A] and they are the catalyst for the problems on the tier." ( Id. ) Likewise, in a March 2010 CIU report, Plaintiff admitted to making metal shanks; he said he was doing so to protect himself because he knew about the GD orders to attack ATG members. According to that report, Plaintiff also stated that he did not know if he was going to be a target of an attack solely because of his affiliation with ATG or of any specific detainees housed on Tier 2A that would want to harm him. ( Id. ¶ 12.)
On April 27, 2010, Plaintiff and three other members of ATG were transferred off Tier 2A, the school wing, to Tier 1A on Moreci's orders "due to recent incidents and intelligence." (SOF ¶¶ 14, 15, 17; see also SAF ¶ 13.) Moreci testified that he had Plaintiff transferred off the school wing because Plaintiff was one of the most violent inmates in the division at the time, had engaged in fighting and gang recruitment, and had not complied with school rules and regulations. (Defs.' Resp. to SAF ¶ 15.) Plaintiff testified in his deposition that, about a week before he was attacked, Moreci was present when two inmates and members of the Latin Folks, Angel Concepcion and Richard Kupfersmith, threatened to kill Plaintiff during a confrontation between a group of school detainees and another detainee group. (SAF ¶ 14.) Another ATG member, William Kaywood, also testified that the ATG members thought Moreci was using them as "bait" for the other gangs by sending them to the Tier 1A decks:
So Sup Moreci... was sending certain guys up.... putting us on decks, the decks that stacked with the Gangster Disciples and the Latin Folks... using us for bait to see the outcome of what would happen on the decks... and see if there was guys - really, these guys got knives up there, soap sock, everything. Once we come on the deck, like in 24 hours, some go at it. We be gonna get stabbed, get jumped on, sent to the hospital.
Plaintiff also testified that during the April 27, 2010 transfer, he specifically told Defendants Captain Julian and Officer Tate, as well as other officers, that he could not be housed in Tier 1A because his life was in danger, and he identified Kupfersmith and Concepcion to Captain Julian with Officer Tate present. (SAF ¶ 18; see also Pl.'s Resp. to SOF ¶ 25.) However, Kaywood, who was transferred at the same time, testified that he did not hear Plaintiff tell Julian or Tate about any specific inmates; rather, Kaywood testified that Plaintiff told Julian he did not want to leave the school wing and told Tate that he did not want to go to Tier 1A because there were Latin Folks up there. (Pl.'s Resp. to SOF ¶ 22.)
Captain Julian testified that he and another officer, Officer Aloisio, offered Plaintiff protective custody on April 27, 2010, but Plaintiff refused. (SOF ¶¶ 32-33). Plaintiff, however, has submitted an affidavit that he was never offered protective custody on that day. (Pl.'s Resp. to SOF ¶¶ 32-33.) He also submitted a CCDOC document "Refusal of Protective Custody, " which is signed by Julian as a witness but lacks Plaintiff's signature and states that Plaintiff refused to sign the document. ( Id. Exh. 1.) While Kaywood also testified that they were not offered protective custody, he gave some conflicting testimony about whether they refused protective custody. (SOF ¶ 37.)
The next day, April 28, 2010, Plaintiff was attacked by members of the Latin Folks gang, stabbed five times, and beaten unconscious, in an "interlock area" between Tiers 1A and 1B. (SAF ¶¶ 22-23.) According to two reports prepared by the CIU, eleven inmates, including Concepcion, had their handcuffs removed while being escorted to the interlock area upon returning from the law library. ( Id. ¶¶ 21, 23.) Plaintiff was inside the Tier 1A dayroom, standing by the doorway between the interlock and the dayroom, when Kupfersmith popped out of his cell and ran into Plaintiff, pushing him through the 1A doorway. ( Id. ¶ 23.) Concepcion then pulled Plaintiff into the interlock, where Plaintiff was attacked and stabbed by at least five of the inmates. The stabbing occurred because Thomas allowed unhandcuffed violent gang members, including Concepcion, to return onto Tier 1A. ( Id. ¶¶ 23-24.)
As reflected by the CIU reports, at this point, there were multiple inmates, none handcuffed, attacking Plaintiff with weapons in the interlock, with only two female officers present. ( Id. ) One CIU report stated that:
The security problem appears to be the lack of immediate supervision which allowed the transportation officers to remove the handcuffs from the entire group of inmates and have them all enter the interlock and congregate at one time.
( Id. (emphasis added).) That report further noted that "CIU also related information regarding both Russell and Concepcion to Division 9 staff prior to this incident." ( Id. ) An "All-Available" call was made, and it took officers 1-2 minutes to respond and rescue Plaintiff from his attackers. (SOF ¶¶ 59, 61.) Moreci testified that nothing done by the Tier 1A officers on the date of the attack violated standard operating procedures. (Defs' Resp. to SAF ¶ 24.)
As a result of the stabbing, Plaintiff spent several weeks in various hospitals. (SAF ¶ 28.) He told investigators he could not identify his attackers and did not want to prosecute them; he also refused protective custody after he returned from the hospital. (SOF ¶¶ 63, 66.) The grievance he filed with the Cook County Jail (the "CCJ") did not mention either Concepcion or Kupfersmith. (SOF ¶ 82.)
Defendants argue that Plaintiff cannot establish that Defendants had specific knowledge of a substantial risk of serious injury, or even if they did, that their response was reasonable and not deliberately indifferent.
Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the initial responsibility of informing the court of the basis for its motion and identifying the evidence it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). If the moving party meets this burden, the nonmoving party cannot rest on conclusory pleadings but "must present sufficient evidence to show the existence of each element of its case on which it will bear the burden at trial." Serfecz v. Jewel Food Stores, 67 F.3d 591, 596 (7th Cir. 1995) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986)). A mere scintilla of evidence is not sufficient to oppose a motion for summary judgment; nor is a metaphysical doubt as to the material facts. Robin v. ESPO Eng'g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000) (citations omitted). Rather, the evidence must be such "that a reasonable jury could return a verdict for the nonmoving party." Pugh v. City of Attica, Ind., 259 F.3d 619, 625 (7th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
In considering a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in the nonmoving party's favor. Abdullahi v. City of Madison, 423 F.3d 763, 773 (7th Cir. 2005) (citing Anderson, 477 U.S. at 255). The court does not make credibility determinations or weigh conflicting evidence. Id.
Failure to Exhaust
Defendants first argue that Plaintiff has timely failed to exhaust his administrative remedies because he filed his grievance more than the 15 days required by the CCJ grievance procedures. However, as Plaintiff correctly points out, his grievance was decided on its merits by the CCJ, and therefore, Defendants cannot rely on this defense. See, e.g., Maddox v. Love, 655 F.3d 709, 722 (7th Cir. 2011).
Failure to Protect
Defendants next argue that Plaintiff cannot show that they were deliberately indifferent to his safety when they failed to protect him from the April 28, 2010 attack. Under the Fourteenth Amendment, prison officials have a duty to protect pre-trial detainees, like Plaintiff, from violence at the hands of other inmates. Fisher v. Lovejoy, 414 F.3d 659, 661 (7th Cir. 2005); see also Farmer v. Brennan, 511 U.S. 825, 833 (1994).[5] "It is not, however, every injury suffered by one prisoner at the hands of another that translates into constitutional liability for prison officials responsible for the victim's safety." Farmer, 511 U.S. at 833. Rather, the prison official must have acted with "deliberate indifference" to "a substantial risk of serious harm" to the inmate. Id. at 834.
A prison official acts with deliberate indifference only when "the official knows of and disregards an excessive risk to inmate health or safety". Id. at 838-40. This standard is equivalent to criminal recklessness. Id. An official will not be liable if he "responded reasonably to the risk, even if the harm ultimately was not averted, because in that case it cannot be said that [he was] deliberately indifferent." Guzman v. Sheahan, 495 F.3d 852, 857 (7th Cir. 2007). Thus, to prevail on his claim, Plaintiff must demonstrate that: (1) Defendants were aware of a substantial risk of serious injury and (2) they failed to take appropriate steps to protect him from that danger. Guzman, 495 F.3d at 857. With respect to the first element, Plaintiff may show Defendants had actual knowledge by showing either that Plaintiff complained about a specific threat to his safety or by circumstantial evidence of the existence of a risk so substantial that such knowledge can be inferred. McGill v. Duckworth, 944 F.2d 344, 349 (7th Cir. 1991); Fisher, 414 F.3d at 662.
Superintendent Moreci
In the months immediately preceding the attack, as described more fully above, Superintendent Moreci received several CIU reports that detailed GD/Folks' orders to attack ATG members and stated that Plaintiff had made a weapon to protect himself against such threats. (SAF ¶¶ 10-13, 19.) Moreci was also present when a fight broke out when Plaintiff's life was threatened by the Latin Folks who attacked him a week later. (SAF ¶ 14.) These facts are sufficient to create a genuine issue of material fact as to whether Moreci was aware of a substantial risk of serious harm to Plaintiff and whether Moreci disregarded that risk when Moreci ordered that Plaintiff be transferred off the school wing and into a jail population where he could be, and was, more easily attacked. Consequently, summary judgment is denied with respect to Defendant Moreci.
Captain Julian
With respect to Captain Julian, there is also a genuine issue of material fact as to whether Julian knew of the substantial risk of harm to Plaintiff and whether he disregarded that risk in transferring Plaintiff. Plaintiff has testified that he specifically told Julian about the threats made to him by two of his attackers, Concepcion and Kupfersmith. (SAF ¶ 18; see also Pl.'s Resp. to SOF ¶ 25.) Kaywood gave somewhat corroborating testimony that Plaintiff told Julian that he did not want to leave the school wing. (SOF ¶ 37.) There is also a disputed issue of fact as to whether Julian offered Plaintiff protective custody. While Julian contends he did, Plaintiff contends he did not, and the document reflecting the offer is not conclusive either way. (Pl.'s Resp. to SOF ¶¶ 32-33.) These are credibility issues that are not properly decided on a motion for summary judgment. Consequently, summary judgment is denied with respect to Defendant Julian.
Officer Thomas
With respect to Officer Thomas, Plaintiff claims that, on the day of the attack, he told her that his life was in danger and that some detainees on the deck were trying to kill him; he also believes he identified Kupfersmith and Concepcion to Thomas. (Pl.'s Resp. to SOF ¶¶ 50, 55; SOF ¶ 47.) Thomas then permitted a group of inmates, including Concepcion, to return to the deck without their handcuffs, where they then attacked and stabbed Plaintiff. (SAF ¶¶ 23-24.) As reflected in the CIU reports, there was a known history between Plaintiff and Concepcion, and permitting the inmates to return unhandcuffed created a security problem, violated common sense, and permitted the violent attack on Plaintiff. ( Id. ¶ 23.) Consequently, there is a genuine issue of material fact whether Thomas acted with deliberate indifference to Plaintiff's safety. Summary judgment is denied as to Thomas.
Defendants Kelly, Marmol, Martinez, Tate, Rodriguez
With respect to Sergeant Kelly, Sergeant Marmol, Officer Martinez and Officer Rodriguez, Plaintiff has not demonstrated that they knew of and disregarded a specific threat to his safety. It is undisputed that Plaintiff did not inform any of them about the threat to him by specific individuals. Rather, he told them that his "life was in danger" and "do not house me on this tier." (Pl's. Resp. Br. at 5; see also Pl.'s Resp. to SOF ¶ 45.) Furthermore, it is undisputed that none of these Defendants were working on the day of the attack.
These types of statements about a general fear of assault are insufficient to be notice of a specific threat. Guzman, 495 F.3d at 857. Thus, in Contreras v. Purtell, No. 06-C-2156, 2007 WL 4246859, at *4 (N.D. Ill. Nov. 28, 2007), an inmate plaintiff informed officers that he thought he would be attacked but did not give any details about the threat. The court held that his statement did not provide the officer-defendant with actual knowledge of a specific threat; specifically, the plaintiff did not inform the defendant "who threatened him, the nature of the threat, where and when the threat would be carried out, or how the harm would occur." Id. at *3. Consequently, summary judgment is granted in favor of Defendants Kelly, Marmol, Martinez and Rodriquez.
With respect to Officer Tate, Plaintiff does not claim that he told Tate about specific individuals who were going to attack him. (SAF ¶ 18; see also Pl.'s Resp. to SOF ¶ 25.) Rather, he makes a vague assertion that Tate was "present" when Plaintiff identified Kupfersmith and Concepcion to Julian. This, by itself, is insufficient to establish that Tate knew about a specific threat and that she disregarded that risk. See Guzman, 495 F.3d at 857; see also Contreras v. Purtell, 2007 WL 4246859. Furthermore, when Plaintiff asked Tate to talk to Julian about his transfer, she responded appropriately by contacting Julian; for this reason, she was not deliberately indifferent even if she knew about the specific risk. See Guzman, 495 F.3d at 857 (An official will not be liable if he "responded reasonably to the risk, even if the harm ultimately was not averted, because in that case it cannot be said that [he was] deliberately indifferent.") Consequently, summary judgment is granted in favor of Defendant Tate.
For the reasons stated above, Defendants' Motion [66] is granted in part and denied in part. Summary judgment is granted in favor of Defendants Kelly, Marmol, Martinez, Tate, and Rodriguez; those Defendants are dismissed from the case. Summary judgment as to Defendants Moreci, Julian, and Thomas is denied.
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October 26, 2011
PATRICH WARE, PLAINTIFF,v.MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
The Court now rules as follows with respect to the two disputed issues *fn1 listed in the Joint Stipulation ("JS"). *fn2
As reflected in the Joint Stipulation, the disputed issues raised by Plaintiff as the grounds for reversal and/or remand are as follows:
(1) Whether the Administrative Law Judge ("ALJ") properly considered the lay witness' statements; and
(2) Whether the ALJ properly determined Plaintiff was capable of his past relevant work.
(JS at 2-3.)
Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (citation omitted). The Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).
A. The ALJ's Findings.
The ALJ found that Plaintiff has severe neurological and musculoskeletal impairments. (AR at 11.) He also found that Plaintiff's medically determinable impairments do not cause more than minimal limitation in his ability to perform basic work activities. (Id.)
The ALJ further found that Plaintiff had the residual functional capacity ("RFC") to perform medium work with occasional climbing of ramps and ladders, balancing, stooping, kneeling, crouching, or crawling. (Id. at 15.) However, he is precluded from climbing ladders, ropes, or scaffolds, and from work around hazards "(unprotected heights, moving machinery, etc.)." (Id.)
At step four the ALJ determined that Plaintiff had not met his burden to prove that he could not perform any past relevant work. (Id. at 16.) He specifically found that based on Plaintiff's RFC, Plaintiff is capable of performing his past relevant work, as actually and generally performed, as a cashier in a pizza restaurant (Dictionary of Occupational Titles ("DOT") 311.472-010), as an oil technician changer (DOT 915.687-018), as a water inspector (DOT 915.587-010), and as a security guard (DOT 372.667-038). (AR at 19.) In the alternative, at step five, relying on the Medical-Vocational Guidelines, the ALJ found that considering Plaintiff's RFC, age, education, *fn3 and work experience, Plaintiff's only occasional limitation in postural activities would have "no more than a slight effect" on his ability "to perform 1000's of other unskilled entry level SVP2 jobs such as packager, cleaner, or assembler, consistent with his lack of job skills." (Id. at 20.)
B. Even If the ALJ's Failure to Mention the Lay Witness Statement Was Error, the Error Was Harmless.
Plaintiff claims that the ALJ erred in ignoring the August 1, 2008, Third Party Function Report ("Report") (Id. at 152-60), completed by Plaintiff's girlfriend, Alicia Ramirez. (JS at 3-4.)
1. The Report and Plaintiff's Subjective Complaints.
Ramirez stated in that Report that Plaintiff is able to care for his child when he has to, and when "[h]e [h]as [his child] he cooks for her and cleans her up"; Plaintiff tosses and turns all night, and wakes up throughout the night; he is sometimes too weak to dress, and eats frozen foods, whereas he used to make meals; she has to remind him to take care of his personal needs and take medication; he does not do house or yard work because he gets headaches or back pain; he drives, but not long distances; she does most of the shopping; he counts money but slowly now; he spends his time watching TV; he often can not finish what he starts; he sometimes gets upset with neighbors or family because he feels disabled and cannot do the things he used to do; his condition affects his ability to lift, squat, bend, stand, reach, walk, sit, kneel, talk, hear, climb stairs, see ("sometimes"), remember, complete tasks, concentrate, understand, follow instructions, and get along with others; he walks only one block before needing a twenty minute rest; he takes a long time to read and gets headaches from reading; he does not remember spoken instructions; he gets along well with authority figures; he does not handle stress well and gets mad and irritated; standing, lifting, squatting, bending, and sitting, all tend to make his back hurt or give him a headache; and he does not understand things unless he is told over and over. (AR at 154-59.)
In his own Function Report - Adult, Plaintiff reported that he cleans and cooks for his child; cannot sleep through the night; is sometimes too weak to dress; gets light-headed when shaving; does not bathe for more than two to five minutes at a time because he gets dizzy; needs reminders to take his medications; he used to make meals but now eats frozen sandwiches; he does not cook anymore because he gets headaches and backaches if he stands too long; he does not do household chores because he gets headaches; he stays in the house "as much as possible" unless he has a doctor's appointment, or sometimes to church for part of the service; drives; does not do any shopping; no longer has hobbies; needs someone to take him to social events especially when he is sad, emotional, or angry; gets angry with himself because he is not the way he used to be; his condition affects his ability to lift, squat, bend, stand, reach, walk, sit, kneel, talk, hear, climb stairs, see ("sometimes"), remember, complete tasks, concentrate, understand, follow instructions, and get along with others; he can only walk one block before having to rest for twenty minutes; he forgets spoken instructions; he gets along well with authority figures; he does not handle stress or changes in routine well; and he "feels like . . . an old person." (Id. at 142-49.) At the hearing, Plaintiff complained generally of very bad headaches, very bad back spasms, nosebleeds once or twice a week, dizziness, and inability to sleep. (Id. at 27, 30, 33.)
2. Legal Standard.
Title 20 C.F.R. §§ 404.1513(d) and 416.913(d) provides that, in addition to medical evidence, the Commissioner "may also use evidence from other sources to show the severity of [an individual's] impairment(s) and how it affects [his] ability to work," and the Ninth Circuit has repeatedly held that "[d]escriptions by friends and family members in a position to observe a claimant's symptoms and daily activities have routinely been treated as competent evidence." Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). This applies equally to the sworn hearing testimony of witnesses (see Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996)), as well as to unsworn statements and letters of friends and relatives. See Schneider v. Comm'r of Soc. Sec. Admin., 223 F.3d 968, 975 (9th Cir. 2000). If the ALJ chooses to reject such evidence from "other sources," he may not do so without comment. Nguyen, 100 F.3d at 1467. The ALJ must provide "reasons that are germane to each witness." Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993).
The ALJ's failure to address lay witness testimony generally is not harmless. Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1991). In failing to address a lay witness statement, the error is harmless only if "a reviewing court . . . can confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination." Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006); see also Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006).
3. Analysis.
Here, in discounting Plaintiff's credibility, other than mentioning that he had considered the entire record (AR at 11), and briefly referring to Exhibit 7E, which contains Plaintiff's Function Report as well as Ramirez's Report, *fn4 the ALJ did not otherwise specifically mention the Report completed by Plaintiff's girlfriend. He discounted Plaintiff's statements concerning the impact of his impairments on his ability to work based on the information contained in the documentary reports, and the reports of the treating and examining physicians, and activities of daily living that were inconsistent with Plaintiff's claims of complete disability. (Id. at 18.) An ALJ may properly consider "testimony from physicians . . . concerning the nature, severity, and effect of the symptoms of which [claimant] complains," and may properly rely on inconsistencies between claimant's testimony and claimant's conduct and daily activities. See, e.g., Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (citation omitted).
Plaintiff does not contend that the ALJ improperly considered the medical opinions of the treating, examining, or consultative physicians. Here, as noted by the ALJ, the medical records indicate that Plaintiff experienced only mild back problems and was neurologically intact. The progress notes reflect mostly telephonic check-ins from Plaintiff and normal examinations with continued prescriptions for medications such as Vicodin, Diovan, and Ambien (for pain, high blood pressure, and insomnia, respectively), and no reported side effects. (See generally, AR at 11-20, 263-70, 278-96). In June 2006, after suffering a seizure, Plaintiff underwent surgery for a benign brain tumor, after which there was no recurrence, no further seizures, and he was found to be neurologically intact. (Id. at 16, 172-77.) He testified at the hearing that doctors had told him his headaches and that the pain in his head from the staples used for surgery are never going to go away. (Id. at 32.) MRI imaging in May 2008 reflects an intact lumbar spine and only minimal degeneration. (Id. at 16, 229.) A consultative neurological examination in June 2008 by Dr. Moore, found only mild tenderness in the lower back muscles, no muscle spasm, and no sciatic nerve irritation. (Id. at 16, 17, 193-97.) Dr. Moore reported a normal neurological examination. (Id. at 195.) His opinions also provided support for the ALJ's assessment of Plaintiff's physical capabilities. (Id. at 196.) The opinion of state agency reviewing physician, Keith J. Wahl, M.D., is also fully consistent with the ALJ's RFC. In December 2009, Plaintiff was in a car accident and complained of neck pain. (Id. at 17.) However, an examination by a physician's assistant found that Plaintiff exhibited full range of motion in the neck with no tenderness. (Id. at 17, 279.)
Finally, mental status examinations found Plaintiff oriented to person, place, and time, with mild limitations, at most, in areas of activities of daily living, social functioning, and concentration, persistence or pace. (Id. at 13-15.) Dr. Moore found Plaintiff could follow simple commands and perform simple tasks, and would have only slight difficulty performing complex tasks. (Id. at 12, 196.) Consultative examining psychiatrist, Oluwafemi Adeyemo, M.D., opined that despite Plaintiff's complaints of moodiness, poor sleep, outbursts of anger, headaches, body pains, and irritability, he was able to understand, retain, and execute simple instructions; might have mild difficulty with complex instructions; could respond appropriately to co-workers, supervisors, and the public; could respond appropriately to most work situations; and would be able to deal with changes in a routine work environment. (Id. at 12-13, 254-57.) State agency psychiatrists also found no severe mental impairment. (Id. at 13, 234-44, 262.) In short, substantial evidence supported the ALJ's finding that Plaintiff is not disabled.
Moreover, the ALJ properly discounted Plaintiff's testimony, which Plaintiff does not challenge. An ALJ's assessment of pain severity and claimant credibility is entitled to "great weight." Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). When, as here, an ALJ's disbelief of a claimant's testimony is a critical factor in a decision to deny benefits, the ALJ must make explicit credibility findings. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981); see also Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) (an implicit finding that claimant was not credible is insufficient.)
Under the "Cotton test," where the claimant has produced objective medical evidence of an impairment which could reasonably be expected to produce some degree of pain and/or other symptoms, and the record is devoid of any affirmative evidence of malingering, the ALJ may reject the claimant's testimony regarding the severity of the claimant's pain and/or other symptoms only if the ALJ makes specific findings stating clear and convincing reasons for doing so. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see also Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); Dodrill, 12 F.3d at 918; Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991).
An ALJ's credibility finding must be properly supported by the record and sufficiently specific to ensure a reviewing court that the ALJ did not arbitrarily reject a claimant's subjective testimony. Bunnell, 947 F.2d at 345-47. An ALJ may properly consider "testimony from physicians . . . concerning the nature, severity, and effect of the symptoms of which [claimant] complains," and may properly rely on inconsistencies between claimant's testimony and claimant's conduct and daily activities. See, e.g., Thomas, 278 F.3d at 958-59 (citation omitted). An ALJ also may consider "[t]he nature, location, onset, duration, frequency, radiation, and intensity" of any pain or other symptoms; "[p]recipitating and aggravating factors"; "[t]ype, dosage, effectiveness, and adverse side-effects of any medication"; "[t]reatment, other than medication"; "[f]unctional restrictions"; "[t]he claimant's daily activities"; "unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment"; and "ordinary techniques of credibility evaluation," in assessing the credibility of the allegedly disabling subjective symptoms. Bunnell, 947 F.2d at 346-47; see also Soc. Sec. Ruling 96-7p; 20 C.F.R. § 404.1529 (2005); Morgan v. Comm'r of Soc. Sec. Admin.,169 F.3d 595, 600 (9th Cir. 1999) (ALJ may properly rely on conflict between claimant's testimony of subjective complaints and objective medical evidence in the record); Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998) (ALJ may properly rely on weak objective support, lack of treatment, daily activities inconsistent with total disability, and helpful medication).
In this case, the ALJ reasonably discounted Plaintiff's testimony based on its internal inconsistencies, and based on Plaintiff's statements and conduct in other parts of the record. Although Plaintiff alleged he could not stand for more than thirty minutes or sit for more than twenty to thirty minutes, or walk more than one block without needing to rest, he also testified that he cared for and played with his two children, aged two years and nine months old, respectively (AR at 18, 26, 356, 129, 194, 255), could lift his thirty-two pound child (id. at 18, 130), could drive up to forty-five minutes at a time (in 2009) and up to one and one-half hours (in 2008) (id. at 18, 38-39, 130, 194). He had recently renewed his driver's license without restriction, and was able to transport his girlfriend and children to or from work, school, or the park; go to doctor's appointments; go to church; prepare simple foods; and spend time with his family. (Id. at 18, 36-37, 129-31, 142-51.)
Moreover, most of the doctors opined that Plaintiff could do some sort of medium work physically, and at least simple work, mentally and neurologically. (Id. at 12-14, 17, 196, 256-57); Thomas, 278 F.3d at 958-59 (ALJ may consider inconsistencies between claimant's statements and testimony from physicians concerning the nature, severity, and effect of the symptoms complained of). As previously discussed, the results of Plaintiff's various examinations showed only mild abnormalities and did not support his subjective complaints. Morgan, 169 F.3d at 599-600 (ALJ properly considered conflict between claimant's subjective complaints and the medical evidence where he found that medical evidence did not support claimant's complaints). Accordingly, the ALJ properly discounted Plaintiff's credibility.
A review of Plaintiff's Function Report and the Report completed by his girlfriend, shows that the opinions of Plaintiff's girlfriend was extremely similar to Plaintiff's Function Report. For instance, Plaintiff described his sleep patterns as "I can't sleep through the night I toss and turn." (AR at 143.)
Ramirez stated: "He tos[s]es and turns all night wakes up through the night." (Id. at 153.) Plaintiff states he does not go outside and that he "tr[ies] to stay in as much as possible unless I go to Doctor Apt." (id. at 145); Ramirez stated that Plaintiff goes outside "not often[.] [O]nly when he has apt." (id. at 155). These and many other similarities permeate the two reports and, but for some minor differences, Ramirez's Report virtually mirrors Plaintiff's Function Report. Where, as here, the lay witness testimony mirrors the claimant's testimony and the claimant is found to be not credible, the ALJ may reject the lay witness testimony for that reason alone. See Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (holding that ALJ gave germane reason for rejecting claimant's wife's testimony where it was similar to claimant's own complaints that were properly rejected). Thus, the Court finds that the valid reasons given by the ALJ to reject Plaintiff's credibility, also legitimately support his implicit rejection of Plaintiff's girlfriend's credibility.
Even if the ALJ's failure to address the opinions of Plaintiff's girlfriend was error, the error is harmless because no reasonable ALJ would have reached a different disability determination having considered it. Stout, 454 F.3d at 1056; Robbins, 466 F.3d at 885. This is because, as noted, the opinions of Plaintiff's girlfriend virtually mirrored his subjective complaints. See Cleveland v. Astrue, No. CV 09-4852-SS, 2010 WL 1678294, at *8 (C.D. Cal. Apr. 23, 2010) (ALJ's failure to expressly provide reason for rejecting lay witness statements was harmless error where statements mirrored claimant's testimony that was properly found not credible). Accordingly, because substantial evidence supported the ALJ's RFC finding, and valid reasons supported the ALJ's credibility determination, the Court finds that even if this Report was fully considered, no reasonable ALJ could have reached a different disability determination. Thus, any error was harmless. See also id.
C. The ALJ Properly Determined Plaintiff Was Capable of His Past Relevant Work.
1. Plaintiff's Contentions.
Plaintiff contends that the ALJ erroneously determined Plaintiff was capable of performing his past relevant work as a pizza worker, an oil changer, water inspector, and security guard. (JS at 14.) Specifically, Plaintiff claims that his prior work as a fast food pizza worker included driving, an activity precluded by the ALJ's determination that Plaintiff should not do work involving hazardous moving machinery. (Id.) He also claims that the jobs of oil changer, inspector, and security guard as described in the DOT, all involve working around hazards and moving machinery (id. at 15): an oil changer involves working with "moving parts of automotive vehicles"; the job of *fn5 inspector includes using a forklift to transport materials such as filled an *fn6 empty oil drums; and the security guard job involves patrolling assigned territory to protect persons or property and apprehending unauthorized persons (id. (citations omitted)). He complains that the ALJ failed to articulate a reasonable explanation for deviating from the DOT job descriptions as related to Plaintiff's limitations. (Id. at 15.)
2. Applicable Law.
At step four of the sequential evaluation process, a claimant must establish that his severe impairment or impairments prevent him from doing past relevant work. Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). The regulations explain the step-four evaluation:
If we cannot make a decision based on your current work activity or on medical facts alone, and you have a severe impairment(s), we then review your residual functional capacity and the physical and mental demands of the work you have done in the past. If you can still do this kind of work, we will find that you are not disabled. 20 C.F.R. §§ 404.1520(e), 416.920(e). The claimant has the burden of showing that he can no longer perform his past relevant work. Id. §§ 404.1520(e), 416.920(e); see also Clem v. Sullivan, 894 F.2d 328, 331-32 (9th Cir. 1990). Although the burden of proof lies with the claimant, the ALJ still has a duty to make requisite factual findings to support his conclusion as to whether a plaintiff can perform his past relevant work. See Pinto, 249 F.3d at 844 (despite the fact that the claimant has the burden at step four, "the ALJ is [not] in any way relieved of his burden to make the appropriate findings to insure that the claimant really can perform his or her past relevant work"); see also Henrie v. U.S. Dept. of Health & Human Serv., 13 F.3d 359 (10th Cir. 1993) (recognizing the tension created between the mandate of Social Security Ruling ("SSR") 82-62 and the claimant's burden of proof, and finding that the *fn7 ALJ's duty is one of inquiry and factual development while the claimant continues to bear the ultimate burden of proving disability).
In order to determine whether a claimant has the RFC to perform his past relevant work, the ALJ must evaluate the work demands of the past relevant work and compare them to the claimant's present capacity. Villa v. Heckler, 797 F.2d 794, 797-98 (9th Cir. 1986). SSR 82-62 states that a determination that a claimant has the capacity to perform a past relevant job must contain among the findings the following specific findings of fact: (1) a finding of fact as to the claimant's RFC; (2) a finding of fact as to the physical and mental demands of the past job or occupation; and (3) a finding of fact that the claimant's RFC permits him to return to the past job or occupation. See SSR 82-62; see also Pinto, 249 F.3d at 844-45.
A finding that a claimant is able to return to his past relevant work must be based on adequate documentation and a careful appraisal. Dealmeida v. Bowen, 699 F. Supp. 806, 807 (N.D. Cal. 1988) ("Without the proper foundation as to what plaintiff's past relevant work entailed, the ALJ's subsequent determination that plaintiff retained the residual functional capacity to perform that job is not supported by substantial evidence."). This determination requires a careful appraisal of the claimant's statements, the medical evidence, and, in some cases, corroborative information such as the DOT. SSR 82-62. Adequate documentation must be obtained to support the decision, including "factual information about those work demands which have a bearing on the medically established limitations." Id. As a result, "[d]etailed information about . . . mental demands and other job requirements must be obtained as appropriate." Id.; see also Sivilay v. Apfel, 143 F.3d 1298, 1299 (9th Cir. 1998) (remanding to ALJ to "investigate fully the demands of the applicant's past work and compare them to the applicant's residual mental and physical capabilities"). Any determination regarding a claimant's ability to perform past work "must be developed and explained fully in the disability decision" and "every effort must be made to secure evidence that resolves the issue as clearly and explicitly as circumstances permit." SSR 82-62.
As previously noted, the ALJ found that Plaintiff could perform his past relevant work both as actually performed, and as generally performed. If Plaintiff can do any one of the four jobs mentioned by the ALJ, as either actually or generally performed, the decision stands. See, e.g., Batson v. Comm'r, 359 F.3d 1190, 1197 (9th Cir. 2004) (although one of the ALJ's reasons for discounting claimant's credibility was invalid, the decision will be upheld in light of the other reasons supporting the ALJ's analysis).
In this case, Plaintiff contends that the job of food worker as he actually performed it involved driving a car, which he deems to constitute working around "hazardous moving machinery." Even if the Court were to find that driving a car involves "hazardous moving machinery," which it does not so find, the DOT description of this job as generally performed does not include driving a car or any other indication that it involves working with hazardous moving machinery. In fact, the DOT description specifically notes that moving mechanical parts are not a condition of the job. Thus, there was no error. *fn8 Even assuming there was error at step four, the ALJ made an alternative finding at step five, based on the Grids, that Plaintiff's non-exertional limitations would have little or no effect on the occupational base for unskilled medium work, and that Plaintiff would be able to perform "1000's of other unskilled, entry level SVP2 jobs [with a learning time of just up to one month] such as packager, cleaner, or assembler, consistent with his lack of job skills." (AR at 19-20.) As previously discussed, substantial evidence supported the ALJ's RFC finding, and Plaintiff does not challenge this step-five finding. Thus, there was no error.
Based on the foregoing, substantial evidence supports the ALJ's conclusion that Plaintiff was not disabled, and the ALJ's decision should be upheld.
Based on the foregoing, IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner, and dismissing this action with prejudice.
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December 3, 2007
MERRILL LYNCH BUSINESS FINANCIAL, INC., PLAINTIFF,v.ARTHUR KUPPERMAN, E. ROSS BROWNE, PAULETTE KRELMAN, PGB INTERNATIONAL, LLC, AND JP MORGAN CHASE BANK, N.A., ET AL., DEFENDANTS, AND JOHN DOES (1-10) AND ABC CORPORATIONS (1-10), ADDITIONAL DEFENDANTS ON THE CROSSCLAIM.
This matter comes before the Court upon motion by Defendant E. Ross Browne ("Browne")for partial reconsideration of the Court's August 7, 2007 Order granting partial summary judgment against Browne. After carefully considering the submissions of the parties, and for the following reasons, Defendant Browne's motion for reconsideration is denied.
Merrill Lynch Business Financial ("Merrill") and JP Morgan Chase ("Chase") allege numerous instances of fraud in connection with multi-million dollar loans provided to Defendants Arthur Kupperman, ("PGB"), Browne and Paulette Krelman. Merrill and Chase allege that Kupperman, Browne and Krelman, (collectively, the "Guarantors") as Guarantors of the now bankrupt PITTRA G.B. International, Inc. ("PITTRA"), presented forged letters purporting to be from a reputable New Jersey law firm, fake audit letters, fake financial statements, false internal reports and fake bank account balances in order to induce further loans from Merrill and Chase. In addition, Merrill and Chase assert that the Guarantors created and controlled PGB, a parallel limited liability company, and used PGB to drain the assets of PITTRA.
On November 28, 2006, Chase filed a cross-motion against the individual Defendants seeking summary judgment against all parties based on an alleged breach of its Guaranties, among other motions. The cross-motion was fully briefed and oral argument was heard on January 24, 2007. On August 7, 2007, this Court filed its Order granting Chase's cross-motion with respect to its Guaranties. On August 8, 2007, the Court filed its Opinion setting forth the basis for the entry of its Order. Browne files this motion for partial reconsideration of the Court's Order granting partial summary judgment against Browne in favor of Chase.
Motions for reconsideration in this District are governed by Local Civil Rule 7.1(g). See United States v. Compaction Sys. Corp., 88 F. Supp. 2d 339, 345 (D.N.J. 1999). A motion pursuant to Local Rule 7.1(g) may be granted only if: (1) an intervening change in the controlling law has occurred; (2) evidence not previously available has become available; or (3) it is necessary to correct a clear error of law or prevent manifest injustice. Database Am., Inc. v. Bellsouth Adver. & Publ'g. Corp., 825 F. Supp. 1216, 1220 (D.N.J. 1993). Such relief is "an extraordinary remedy" that is to be granted "very sparingly." NL Indus., Inc. v. Commercial Union Ins. Co., 935 F. Supp. 513, 516 (D.N.J. 1996).
It is improper for a motion for reconsideration to "ask the court to rethink what it has already thought through -- rightly or wrongly." Oritani Sav. & Loan Ass'n v. Fidelity & Deposit Co., 744 F. Supp. 1311, 1314 (D.N.J. 1990), rev'd on other grounds, 989 F.2d 635 (3rd Cir. 1993). Finally, "only if matters which were overlooked, if considered by the Court, might reasonably have resulted in a different conclusion will the court entertain such a motion." Polizzi Meats, Inc. v. Aetna Life & Casualty Co., 931 F. Supp. 328, 339 (D.N.J. 1996).
A. The Lesnevich Report Constitutes an Impermissible Net Opinion and is Not a Matter Which Reasonably Could Lead to a Different Conclusion
Browne bases his motion for partial reconsideration on the claim that this Court did not consider the Lesnevich Report, which allegedly provides sufficient evidence to overcome the presumption of the validity of notarized documents, when granting Chase's motion for partial summary judgment. Browne argues a question of material fact results and therefore summary judgment is improper.
In granting Chase's motion for partial summary judgment, the Court never cited the Lesnevich Report, only the Lesnevich Certification. The Court found the Lesnevich Certification constitutes an impermissible net opinion since it does not explain the "whys and wherefores" of the conclusion, as is required. See Jimenez v. GNOC Corp., 145 N.J. 374 (1996). An expert's bare conclusion, unsupported by factual evidence or other data, is an inadmissible net opinion. See Johnson v. Salem Corp., 98 N.J. 78, 91 (1984). This Court cited the lack of explanation in the Lesnevich Certification as to which documents were examined to what analysis was conducted resulted to decide that the Lesnevich Certification was an impermissible net opinion.
In examining the Lesnevich Report, the Court finds that this report also lacks the requisite explanations and analysis. Although documents supposedly bearing Browne's signature are presented, no explanation is given as to the reason these documents were chosen or where the documents originated. The report also sets forth a general list of elements that define letter formation and execution of a signature, but the Lesnevich Report's conclusion makes no mention of which elements were applied in the evaluation of Browne's signature on the Guaranty. The report concludes that Browne's Guaranty signature contains "dissimilar" letters, without explaining how, why, or to which specific documents.
Furthermore, Browne's signature on the Guaranty was acknowledged. A certificate of acknowledgment "shall be and constitute prima facie evidence of the due execution of such instrument by such party." N.J.S.A. 2A:82-17. The Court will entertain a motion for reconsideration only when the matter overlooked could "reasonably have resulted in a different conclusion." Polizzi Meats, Inc., 931 F. Supp. at 339. Considering that the Lesnevich Report is intended to constitute "clear, satisfactory, and convincing" proof required to overcome the strong presumption of the integrity of an acknowledged signature, the Court declines to accept the view that the overlooking of an impermissible net opinion could reasonably have resulted in a different conclusion. Only where the district court overlooked matters that might have led to different result had they been considered will a motion for reconsideration be granted. Carteret Savings Bank, F.A. v. Sushan, 721 F.Supp. 705,709 (D.N.J. 1989).
B. The Court Did Not Overlook Browne's Denial with Respect to the Submission of Financial Documents to Chase
The Court states in its August 8, 2007 Opinion that "by submitting the yearly financial statements, Browne ratified the agreement."*fn1 Browne does not dispute that he submitted yearly financial statements to Chase and this fact alone provides basis for the Court's finding that Browne ratified the agreement. In response to Chases's statement of undisputed material facts, Browne responds that while he did submit the financial statements, he did not do so "in accordance with the Guaranties." In his reconsideration motion, Browne argues that the Court failed to consider this alleged "denial" and this constitutes grounds for reconsideration.
However, the fact that Browne submitted the financial statements to Chase is the basis for this Court's finding that Browne ratified the agreement. Browne's position on whether his submission was in accordance with the Guaranty does not alter this Court's position. In a summary judgment motion, once the moving party has met the initial burden of showing that no genuine issue of material fact exists, the burden shifts to the nonmoving party to present evidence that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmoving party "may not rest upon mere allegations or denials" of its pleading, but must produce sufficient evidence to reasonably support a jury verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Since Browne has submitted no affidavits to support his response to Chase's statement of undisputed material facts, his argument fails to meet the required burden and therefore summary judgment is appropriate. Browne does not set forth a dispositive factual matter that this Court has overlooked and therefore has not met the requirements of a successful motion for reconsideration.
C. The Acknowledgment of the Guaranty is Not Defective
Browne argues that the Court failed to consider certain alleged "inconsistencies and irregularities" surrounding the acknowledgment of the Guaranty. Browne alleges that (i) notary Alex Musat could not recall the events leading to the acknowledgment of the Guaranty; (ii) there is a problem with an acknowledgment that is crossed out on the Krelman Guaranty; and (iii) if Musat acknowledged Kupperman's signature, it meant that Kupperman appeared before him and executed the document. This Court's August 8, 2007 Opinion clearly considered the testimony of Musat. Kupperman's acknowledgment was not at issue on Chase's partial summary judgment motion and therefore will not be considered now. Furthermore, Browne fails to explain why these alleged inconsistencies are dispositive.
For the reasons stated, it is the finding of this Court that the Defendant's motion for partial reconsideration is denied. An appropriate Order accompanies this Opinion.
Dennis M. Cavanaugh, U.S.D.J.
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Developer's WTC Plans Move Forward With Design Agreement
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New England Boiled Dinner
Total Time
2hrs 20mins
Prep 20 mins
Cook 2 hrs
My mother's simple recipe for a great comfort food night.
Ingredients Nutrition
- 1 1⁄2 lbs pre- cooked ham
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- 2 bay leaves
- 1 -2 quart water
- Place ham in a large kettle filled 1/2 full with water. Bring to a boil.
- Add remaining ingredients and cook slowly for 2 hours or until potatoes are tender and ham is heated through.
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Perfect recipe!! All the others were so difficult and called for things I just didn't have, so thank you for this simple yet great recipe!! Food was delicious!!


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DIY Wedding
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Be My Bridesmaid Kit
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- I always like to test out each stamp along the way… check twice and stamp once.
- Keep stamping until it reads, "Will you be my…". I'm not the best speller and sometimes I forget what letter is next, especially when working backwards, so write out on your scratch paper what exactly you are stamping.
- Since the box had a slight texture to it, I had to fill in some little spots with a fine black marker.
- When your ink is finally dry, carefully erase your guide lines.
- Now we are going to start wrapping! Begin with one of your ribbon choices and measure a piece long enough to span through your box and be able to tie a bow over your present. Tape your ribbon to the bottom of the box so it won't slip on you.
- Now, prepare your tissue paper. Measure the width of your box so that the fold of your tissue paper will be the exact length you need.
- Next we will roll the bridesmaid tank over your wrapping paper tube so it will stand up when placed in the box. I used an old tube of wrapping paper and cut it with a serrated knife to the width of my box. Fold the edges of the tank inward, so that when rolled up, the tube will perfectly read 'bridesmaid'.
- I folded the top of my tank underneath the tube and kind of tucked the edges inside the empty tube. The beauty of rolling the tank around the tube is that it will stand up for your friend to read the word 'bridesmaid'.
- Then carefully place the tube into your present box and add all your other fun gifts.
- Next, fold in your tissue paper and tie your ribbon bow.
- Now we will tie the outer bow. Measure both your ribbon choices and start your bow from the underneath of the box.
- Carefully tie a bow and fluff it out.
- For the finishing touch we are adding a cute little butterfly. Using Craft Glue Dots apply one to the backside of your butterfly and stick it to an area on your ribbon. Glue Dots are extremely strong and your butterfly will definitely stay stuck wherever you put it.
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Be at the top of your lace game with High Streets' Crochet Dress. Featuring a gorgeous white lace overlay, this short-sleeved, knee-length navy dress has us going head over heels. Style this women's dress with a pair of nude heels.
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Precisionsound Persian Santur MULTiFORMAT SCD DVDR | 624 MB
The Persian Santur is a trapezoid shaped instrument with 72 strings and a 3 octave range.
Similar types of instrument could be found all over the world; "Santoor" in India, "Yang qin" in China, "Hammered Dulcimer" in England and "Hackbr?de" in Sweden. They are all slightly different in the amount of strings and the timbre but with similar constructions. We have sampled the Persian Santur with 2 types of mallets in 3 velocities, "Santur 1" (hard mallets) and "Santur 2" (soft mallets). You also get a huge set of different glisses, fx both tonal and percussive divided into 6 programs.
The complete Persian Santur contains 241 24bit Stereo WAV samples;
1. 8 programs for SoundFont (16bit)
2. 10 programs for HALion 1.2->
3. 10 programs for Kontakt 1.5 ->
4. 2 Special Kontakt 2.1 programs with tremolo scripts.
The SoundFont versions are 100% compatible with all virtual samplers supporting the SoundFont format, like Gigastudio, HALion, Kontakt, EXS24, VSampler, NN-XT, Dimension, Sfz, Audigy and Emulator X.
All formats are included when you buy "Persian Santur" so you can download whatever format you like or all of them.
Homepage: http://www.store.precisionsound.net/...santurinfo.php
Download from Hotfile
Información (Cómo descargar - NUEVO: Ver Enlaces de Descarga actualizados al 2016):
http://hotfile.com/dl/32855725/ab08c9f/PRSNDPSSMFSPiRiT.part1.rar.html http://hotfile.com/dl/32855758/4ae16c1/PRSNDPSSMFSPiRiT.part2.rar.html http://hotfile.com/dl/32855802/155607c/PRSNDPSSMFSPiRiT.part3.rar.html http://hotfile.com/dl/32855840/58ba254/PRSNDPSSMFSPiRiT.part4.rar.html http://hotfile.com/dl/32855884/d1a5cdf/PRSNDPSSMFSPiRiT.part5.rar.html http://hotfile.com/dl/32855936/174629a/PRSNDPSSMFSPiRiT.part6.rar.html http://hotfile.com/dl/32855945/b9e83fc/PRSNDPSSMFSPiRiT.part7.rar.html


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Not quite what you're looking for? View similar properties or start a new property search.
Beautifully restored 19th Century house for sale in Playa de la Malvarrosa, Valencia, situated on the front line of the beach
- 8 Bedrooms
- 6 Bathrooms
- Size 440m² (4,736ft²)
Stunning 8-bedroom house for sale with a plot of 1,250m² and fantastic sea views
This historic house for sale is situated on the front line of the beach in Playa de la Malvarrosa.
The property is divided into 2 distinct dwellings, comprising a main house and another auxiliary house.
The main house has been completely restored whilst maintaining many of its historical features, combining traditional charm with all the commodities required for modern living.
On the ground floor there is a double height living room with a marvellous iron balcony, a separate dining room, an independent kitchen, a wine cellar and 2 ensuite bedrooms with complete bathrooms. On the first floor you will find 4 bedrooms and 2 bathrooms. There is also an attic floor from where you can enjoy wonderful sea views.
The auxiliary house is primarily used as a service area for the swimming pool and offers a large living/dining room with a kitchen, a shower and a bathroom, a "paellero" and a service ensuite bedroom.
The property is set on a plot of 1,250m² with terraces and a garden featuring more than 20 palm and coconut trees, and a mango, avocado and decorative olive tree.
There is also a swimming pool with a Gaudí style bench and parking for 6 cars.
- Swimming pool
- Sea views
- Marble flooring
- Terrace
- Air conditioning
- Garden
- Heating
- Parking
Ground floor:
- 2 ensuite bedrooms
- Double height living/dining room with a balcony
- Living room
- Kitchen
- Wine cellar
First floor:
- 4 bedrooms
- 2 bathrooms
- Large living/dining room with a kitchen
- Bathroom and shower, serving the swimming pool
- Service ensuite bedroom
- Front terrace with sea views
- Garden with more than 20 palm and coconut trees, a mango tree, an avocado tree and a decorative olive tree
- Swimming pool with a Gaudí style bench
- Parking for 6 cars
- Roman baths
- Restored Valencian ceramics
- Refurbished doors and lamps
- Service bedroom
This excellent urban beach of fine golden sands is located in the north of the municipal district between the town of Alboraya and Calle Acequia de la Cadena.
Playa de la Malvarrosa is serviced by lifeguards and offers sun beds, sports activities such as a lively beach volleyball club and many beach bars. It also has numerous amenities available all year round including supermarkets, medical services, pharmacies, restaurants, ice cream shops and a gym.
One of its main attractions is the Paseo Marítimo and its many restaurants and cafés. Of note is the impressive Hotel Balneario Las Arenas, located on the waterfront, where you can enjoy fantastic facilities including a spa and beauty centre.
Situated 10 minutes from the centre, Playa de la Malvarrosa is well connected with the rest of the city via bus, tram, taxi and the Valenbisi bike rental service.
Contact us about this property
- Lucas Fox Valencia
- email@example.com
- +34 960 077 790
- €1,490,000
- House / Villa For sale
- 8 Bedrooms, 6 Bathrooms
- Size 440m² (4,736ft²)
- Plot size 1,240m² (13,347ft²)
- Reduced Price.
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- Valencia Inland, Godella / Rocafort
- For sale, House / Villa


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decided: October 7, 1982.
BERNARD JOHNSON, PETITIONERv.COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT
Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Bernard G. Johnson, No. B-178720-B.
Richard A. Katz, for petitioner.
John T. Kupchinsky, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.
Judges Rogers, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Craig.
[ 69 Pa. Commw. Page 304]
Claimant Bernard Johnson appeals an order of the Unemployment Compensation Board of Review affirming a referee's order which denied the claimant benefits under the Unemployment Compensation Law.*fn1
The claimant, formerly a window washer, applied for a job with the Wellsville Group Home, a residential facility for adjudicated juveniles. The Home hired the claimant as a house parent, a role for which
[ 69 Pa. Commw. Page 305]
the claimant had no formal training. After working for two days, the claimant voluntarily quit. The board found that the claimant quit because he was dissatisfied with his work schedule and "because he feared for his safety at work."
By accepting a job, an employee admits that the work is suitable. To prove that an accepted job actually was, or became, so unsuitable that he had a compelling cause for quitting, a claimant must first overcome the presumption of suitability by showing that the unsuitable conditions were the result of employment factors which changed after acceptance or that he was deceived as to, or was reasonably unaware of, the unsuitable conditions when he accepted the employment. Jones v. Unemployment Compensation Board of Review, 35 Pa. Commonwealth Ct. 293, 385 A.2d 639 (1978).
The board found that the employer had explained to the claimant the duties he would have and that, at the time of hiring, the employer also had informed the claimant that the facility was understaffed and that the residents had been in other juvenile institutions.
The board found that, before he was hired, the claimant visited the facility and observed "an act of violence involving two of the residents." However, in its brief, the board candidly admits that the claimant did not make that visit to the facility until after he had accepted employment.
The board concluded that it could not hold that the conditions and duties of the claimant's employment constituted a necessitous and compelling cause which could, under the law, justify quitting because the claimant was informed of employment conditions when he was hired. However, we must conclude that the findings of fact are not sufficient to support the board's conclusion.
[ 69 Pa. Commw. Page 306]
In determining whether or not a voluntary quit is for a necessitous and compelling cause, Section 402(b)(1) of the Law*fn2 requires that consideration be given to the applicable factors used in determining if work is suitable. Section 4(t) of the Law,*fn3 in pertinent part, provides:
In determining whether or not any work is suitable for an individual, the department shall consider the degree of risk involved to his health, safety and morals, his physical fitness, prior training and experience. . . .
Here the board's findings expressly confirmed the claimant's fear for his safety as a cause for quitting. With respect to his awareness, before being hired, of the possibility of physical danger, the board's findings that he was informed concerning the "schedule," the residents' previous status, the understaffing, and about "duties" and "conditions," are findings which are not conclusive on the matter of anticipation of danger.
That hazardous conditions may be hidden to the untrained eye is obvious in a heavy manufacturing context. Training or experience may also be necessary before an employee can appreciate safety hazards which are involved in a social service job, particularly where it includes working with institutionalized juveniles or convicted persons. Because the record shows that the claimant had no experience or training for the job, he may not have been able to know what the employment duties or conditions, such as understaffing, meant in terms of his personal safety. The only evidence on that point of claimant's knowledge appears to have been the testimony of the claimant himself (not necessarily conclusive, of course), that
[ 69 Pa. Commw. Page 307]
he did not know that the job involved using physical force, to restrain juveniles from fighting and to protect himself.
The possibility of a misunderstanding by the referee and the board is suggested by the finding, now admitted to be incorrect, that the claimant's knowledge of potential violence was acquired by observation before being hired.
Accordingly, we must reverse and remand to the board for findings as to whether or not the claimant understood what the conditions of employment meant in terms of his safety and, if he did not understand, to redetermine whether the risk to the claimant's safety constituted a necessitous and compelling cause, under the Law, which justified the claimant's voluntary quit. Of course, the board may remand to the referee for the taking of additional evidence, if necessary, and for findings.
Now, October 7, 1982, the order of the Unemployment Compensation Board of Review, Decision No. B-178720-B, dated August 5, 1980, is hereby reversed and this case is remanded to the Board for action consistent with this opinion.
Reversed and remanded.
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We found 1 provider with an interest in menstrual disorders and who accepts Blue Cross and Blue Shield of Florida BlueCare Essential Health near Tallahassee, FL.
Specializes in General Gynecology
101 N Monroe Street
Tallahassee, FL
Read more
Dr. Anthony Gyang works as a general gynecologist. He is affiliated with St. Cloud Regional Medical Center and Osceola Regional Medical Center. He is an in-network provider for Blue Cross Blue Shield EPO, Blue Cross Blue Shield Bronze, and Blue Cross Blue Shield HMO, as well as other insurance carriers. After completing medical school at the University of Ghana Medical School, Dr. Gyang performed his residency at Franklin Square Hospital Center. Dr. Gyang (or staff) is conversant in Spanish and Akan.
Relevant Interests: , abnormal uterine bleeding
All Interests: Colposcopy, Cystoscopy, Hysteroscopy, Essure, Gynecologic Cancer, Trigger Point Injections, ... (Read more)


text:
Worn across all the major professional tours, Zephal is the patented technology featuring the lightest stretch fabrics on the rainwear market. It is designed to combine extreme comfort and weather protection. The creators claim the fabric offers an enhanced range of motion, unrivalled in the golfing world.
Zephal is designed in 3 unique layers including the outer shell. This section is formulated to divert rain water and prevent puddles forming or penetrating. The middle shell features the Optimum Inner Micro Climate and Thermo Regulator for temperature control and versatile wear.
The outer membrane contains an estimated 1.4 billion microscopic pores per every square centimetre. Golfing scientist's state these pores are thousands of times smaller than a droplet of water which ensures no penetration from outside the membrane.
The inner shell ensures that sweat and internal moisture is released through the surface to maintain dryness even under heavy perspiration. In essence it blocks ingress but encourages removal of unwanted moisture created by the body.
What sets this patented Sunice technology apart is incredible breathability and comfort. A built in stretch lining links seamlessly with the outer garment for unimpeded movement.
The technology is found exclusively in outdoor jackets suitably formatted for combating the harsh British climate.
All Zephal products come with a full 3 year water proof guarantee.
Add Sunice Zephal technology to your golfing wardrobe and find new levels of comfort and performance.


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English: Nephelium lappaceum Fruit: The fruit is 1" wide. The red skin is covered in soft, hairy spines. The skin slips off very easily to reveal white pulp surrounding one brown seed. The texture and flavor are reminiscent of a sweet grape.
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Your Ultimate Acne Action Plan: All Types of Acne & The Best Way to Deal With Each
From pre-period pimples to random out-of-nowhere zits to adult acne, we're sharing our ultimate guide of the best ways to deal with all types of acne from minor blemishes and to big breakouts, below. Consider this your ultimate acne action plan!
Acne During Puberty
Perhaps most people's first foray into the world of breakouts, puberty is hard enough already without having to deal with acne, too. As a result of hormonal changes and fluctuations, your skin at this stage in your life can produce and excess of oil. That, plus a lack of a proper skin care routine, is what Dr. Dendy Engleman—Skincare.com consulting dermatologist—explains is one of the root causes of blemishes around puberty.
Acne Action Plan: To help you deal with acne during puberty you're going to want to adopt a skin care routine for oily or combination skin. We detail a four-step action plan for oily skin during puberty here.
Acne Before Your Period
You're doubled over with cramps, your head is pounding, you can't remember if you have a tampon…oh, and your face is a greasy, pimple-covered mess—nice, right? Pre-period pimples are an oh-so-annoying issue many of us deal with (show of hands, ladies?) and according to the American Academy of Dermatology pre-period breakouts are causes by hormonal fluctuations that increase sebum production—sensing a pattern?
Acne Action Plan: If you notice your skin goes haywire before or during your time of the month, it's time to up your skin care game. Use mild cleansers formulated with acne-fighting ingredients like salicylic acid and benzoyl peroxide—and keep similarly-formulated spot treatments on hand for any pimples that pop up!
Adult Acne
Breakouts are supposed to stop in junior high, right? Wrong! For so many of us, acne can extend into, reoccur, or start for the first time in our adult years. Once again, this type of acne is most often caused by hormonal fluctuations—typically presenting itself around the chin and jawline. However, what sets it apart is its stubbornness. Unlike the acne of our youth—which is more often than not, sporadic—adult acne is more cyclical and doesn't always respond in kind to the same products you used in grade school.
Acne Action Plan: While it may not respond to the same products you used back in the day, there are thankfully new product formulations created with adult acne in mind. Normaderm is a collection of products from Vichy—formulated with salicylic and glycolic acids in addition to moisturizing ingredients—that helps to target blemishes and shine along with the dehydration adult skin can so often experience. Another must-try? SkinCeuticals Blemish + Age Defense, an oil-free serum formulated with dioic acid, salicylic acid, LHA, glycolic acid, and citric acid to fight the formation of acne and reduce excess oil while helping to improve the appearance of skin aging. If your adult acne is especially stubborn your best option is to see a dermatologist who can devise a more personalized plan of attack.
Body Acne
Thought those blemishes on your face were bad? Enter: back and chest acne. If these body breakouts occur on your back, chest, and face then you likely have acne vulgaris—common in teenagers and young adults. If the breakouts are just on your back or chest, our consulting dermatologist Dr. Lisa Ginn thinks it may be time to look at your habits. According to Dr. Ginn, when breakouts show up on only on your back and chest, it is most likely caused by failure to wash your back after you sweat—still think you can skip that post-workout shower?
Acne Action Plan: Dr. Ginn says to start by always rinsing the sweat off at least 10 minutes after working out, from there she likes topical products formulated with sulfur, salicylic acid, or benzoyl peroxide. Discover more info about body acne from our interview with Dr. Ginn, here.
Out-of-Nowhere Acne
Go to sleep with clear skin only to wake up with a zit camped out on the tip of your nose? Those seemingly out-of-nowhere breakouts can happen to the best of us, but are nearly always caused by clogged pores.
Acne Action Plan: First things first, take your makeup off before hitting the hay and then cleanse and moisturize your skin. Failing to wash your face before bedtime is a good way to get zits, since you're essentially letting those impurities linger on your complexion while your skin should be in self-repair mode—not cool. Keep your pillowcases, sheets, towels, cellphone, and makeup brushes clean—often your skin saboteurs are hiding in plain sight right in your home. Oh, and as always, follow a well-balanced skin care routine, eat well, get your beauty sleep, and keep the stress to a minimum!
Sure, we give a lot of lip service to whiteheads and other pimples that reach the skin's surface, but what about clogged pores that sport that tell-tale darkness of a blackhead? Caused by the oxidation of pores clogged with dirt, oil, and/or other impurities, blackheads are the worst. While squeezing these suckers out may seem like the right plan…it couldn't be more wrong.
Acne Action Plan: Lucky for you, we detail four simple tips to help you deal with blackheads, here.
Hands Off!
No matter what the cause of your acne, the number one mistake you can make when it comes to breakouts, blemishes, and blackheads is picking at your skin. Sure, that immediate satisfaction of popping may feel good, but that scar you could potentially be left with—or worse, that new open cannot-be-covered-by-anything wound on your face—is not going to give you the warm and fuzzies. Stick to spot treatments, skin care routines, and advice from the professionals and keep your hands off!
Curious about common acne myths you may be buying into but shouldn't? We shut down five acne lies, here!
Need a quick fix? Here's a step-by-step guide to hide those blemishes and breakouts, fast!
Skin Concerns
Protection Without the Pimples: The Sunscreen Acne-Prone Skin Needs
Sun protection shouldn't mean pimples. This is the best sunscreen for acne-prone skin.
Skin Concerns
Back-to-School Breakouts: The Best Way to Hide Pimples
Put your best face forward this school year. Learn how to hide pimples and breakouts with this e...
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The Best Skin Care Routine for Dull, Lackluster Skin
Kick dull skin to the curb and restore your glow by using these simple skin care tips in your ro...
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The Best Weapon in Your Anti-Aging Arsenal
Get younger-looking skin just by incorporating this skin care product into your anti-aging routi...
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The Best Spot Treatments for Acne
We're sharing the best spot treatments for acne to help you make those pesky pimples disappear f...
- Skin Concerns
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The Best Face Wash For Oily Skin
If you have oily skin, this is the best face wash for you. Find out why we're obsessed with this...
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Consort Acne: How the Love Of Your Life Is Messing With Your Complexion
Notice a few more pimples these days? The culprit could be your significant other. We explain al...
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The 5 Best Anti-Aging Tips According to a Top Dermatologist
When we want the best anti-aging tips, we go straight to the experts. Find out what a top dermat...
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How to Protect Your Skin From the Sun During the Dog Days of Summer
No matter how hot or how humid, here's how to protect your skin from the sun during the Dog Days...
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Nubiles - The freshest girls on the net...EXCLUSIVELY!!! There is nowhere else where you will see these girls graduate from nubile status to blossom into woman-hood!
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- Worldwide Rank #130,753,404
- Follower/Following Ratio 0.03
- Daily New Followers 0
Öm€R FaRuK AyDıN Twitter Stats
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@006_ay has 1 followers on Twitter.
This account is #130,753,404 in the worldwide rank of the most popular Twitter users.
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Last month this account followed no users.
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@006_ay will hit 1 followers in the next 3 months, and 1 in one year.
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1. Overall responsibility for the stores management
2. MIS and inventory reports
3. Audit management and compliance
4. Licenses management pertaining to stores (bridge and other equipments including calibration)
5. Stores Insurance policies & transit insurance policy
6. Insurance claims management and documentation
7. Storage facility creation for proper storage and its maintenance
8. Preservation Management
9. Systems implementation and Documentation
10. Stock verification and approval for stock adjustment for discrepancies
11. Interdepartmental communication.
12. Gate Pass Management
13. Rejected material handling.
14. Scrap disposal
15. Management of material handling equipments and tools and tackles
16. Coordination on Security and Fire
Stores Insurance Audit Stock Insurance Policy Audit Management