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United States District Court, E.D. New York
September 25, 2014
DAMON SANTIAGO, Plaintiff,v.COMMISSIONER OF SOCIAL SECURITY, Defendant.
MARGO K. BRODIE, District Judge.
Plaintiff Damon Santiago, proceeding pro se, filed the above-captioned action seeking review pursuant to 42 U.S.C. § 405(g) of a final decision of Defendant Commissioner of Social Security denying his application for disability insurance benefits. Defendant moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, claiming that the Commissioner's decision is supported by substantial evidence. Plaintiff opposes Defendant's motion. The Court heard oral argument on September 17, 2014. For the reasons set forth below, Defendant's motion is denied, the Commissioner's decision is vacated and the Court remands the matter for further administrative proceedings.
I. Background
Plaintiff filed an application for disability insurance benefits on July 5, 2012, based on a disability onset date of June 20, 2010. (R. 9.)[1] Plaintiff's application for disability benefits was denied on September 14, 2012. ( Id. ) Thereafter, Plaintiff requested a hearing, and a "video hearing" was held on January 7, 2013. ( Id. ) At the hearing, Plaintiff and Timothy P. Janikowski, a vocational expert, testified. ( Id. ) On January 29, 2013, Administrative Law Judge Eric W. Borda ("ALJ") found that Plaintiff was not disabled. ( Id. at 17.) On March 4, 2013, the Appeals Council denied review of the ALJ's decision. ( Id. at 5-9.)
a. Plaintiff's testimony
Plaintiff has an eleventh grade education and has not received his GED after five failed attempts. ( Id. at 33.) Plaintiff is on public assistance for his housing and food needs. ( Id. at 39.) Plaintiff alleges that he suffers from major depressive disorder, psychotic disorder and anxiety disorder. ( Id. at 32.) In addition, Plaintiff complained of upper back and left elbow pain. ( Id. )
On or about June 20, 2010, Plaintiff began to hear things, including people talking about him and threatening him. ( Id. at 35.) Plaintiff testified that he saw a psychiatrist every week and a doctor every eight weeks. ( Id. at 38.) Although medical treatment has helped "some, " Plaintiff stated that he had problems being around others due to feeling uncomfortable, hearing things, crying and feeling very angry. ( Id. at 38-39.) Because of his medication, Plaintiff is "always sleeping" and "groggy." ( Id. at 40.) Some days Plaintiff does nothing else but sleep. ( Id. at 42.) Plaintiff does not leave his home except to go to the doctor. ( Id. at 39.)
b. Plaintiff's work history
Plaintiff worked as a security guard at a homeless shelter from 1999 to 2003. ( Id. at 33.) Plaintiff also worked as a "laborer" from 2003 to 2010. ( Id. at 187.)
c. Vocational expert's testimony
Timothy P. Janikowski, vocational expert, testified that Plaintiff could not presently perform his past work as a security guard, which is categorized as SVP-3.[2] ( Id. at 44-46.) The ALJ presented the following hypothetical to Janikowski:
[A] person the claimant's age, education, and work experience who could do light work with frequent lift[ing]..., lift with pushing and pulling with his left arm is limited to frequent. He's... right-handed. He would be limited to simple, routine tasks, be off task five percent of the day in addition to regular scheduled breaks due to moderately impaired attention and concentration; can only work in a low-stress job, defined as having no fixed production quotas and no hazardous conditions; with only occasional decision making and only occasional changes in the work setting. He would need to have close supervision. In other words, a supervisor would have to check on him throughout the workday every probably every two hours, four times on each shift. He could have no interaction with the public and only occasional interaction with coworkers....
( Id. at 45-46.) Janikowski stated that this hypothetical worker could perform "light exertional, uncontrolled work that's things oriented." ( Id. at 46.) Janikowski identified a bench assembler, washer (by hand) and "inspector, " all ranked as SVP-2, as examples. ( Id. at 46-47.)
The ALJ then presented Janikowski with another hypothetical. ( Id. at 47.) The hypothetical remained the same except that the worker would be off task up to 15 percent of his workday in addition to regularly scheduled breaks and have markedly impaired attention and concentration. ( Id. ) Janikowski stated that such a worker would not be able to meet the demands of the competitive labor market. ( Id. ) Janikowski also stated that employers would tolerate about one unscheduled absence per month, 12 absences over the course of a year. ( Id. at 38.) Proszek, Social Security Disability and the Legal Profession 163 (2002))), report and recommendation adopted as modified, No. 06-CV-2589, 2009 WL 1726212 (S.D.N.Y. June 18, 2009).
d. Medical evidence
i. Physical impairment
1. Lincoln Medical and Mental Health Center reports
On April 29, 2010, Plaintiff visited the emergency room of Lincoln Medical and Mental Health Center after being punched in the face. ( Id. at 251, 265.) He complained of right eyebrow pain and was categorized as non-urgent. ( Id. ) The treating physician noted decreased vision. ( Id. at 255.) Plaintiff was given pain medication and sent to undergo a CT scan of his head and facial bones. ( Id. ) On April 30, 2010, Plaintiff's test results were "unremarkable" and the ophthalmologist was unable to identify an organic cause to Plaintiff's decreased vision. ( Id. at 262.)
On June 19, 2010, Plaintiff visited the emergency room of Lincoln Medical and Mental Health Center after suffering an "intracranial injury." ( Id. at 240.) He was bleeding from his scalp and complained of left shoulder and back pain. ( Id. ) His scalp wound was repaired and he was discharged with head injury instructions. ( Id. at 242.) Scans were taken of Plaintiff's left shoulder and left elbow and demonstrated no evidence of fracture or dislocation. ( Id. at 229.) Plaintiff's bones were in good alignment and his soft tissue was "unremarkable." ( Id. )
On June 29, 2010, Plaintiff went to Lincoln Medical and Mental Health Center to have staples removed from his head and elbow. ( Id. at 222-37.) His wound was healing well and he was told to return to the emergency room if his condition worsened. ( Id. at 238.)
2. Doctor Nadubeethi Jayaram
On October 7, 2011, Doctor Jayaram performed a consultative examination of Plaintiff's left elbow and noted that he could flex to 120 degrees easily but did have chronic medial epicondylitis of the left elbow. ( Id. at 595.) Doctor Jayaram concluded that his condition was mild and he could perform activity as tolerated. ( Id. )
3. Doctor Aurelio Salon
On August 30, 2012, Doctor Salon performed an internal medicine consultative examination of Plaintiff. ( Id. at 585.) Doctor Salon noted that Plaintiff primarily complained of major depression with psychotic features, back pain, tendonitis of the left elbow, poor vision in the right eye and post-traumatic migraine headaches. ( Id. ) Doctor Salon noted that Plaintiff was then taking 2 mg of Risperidone daily, 20 mg of Citalopram daily and Motrin. ( Id. at 586.) She also noted that Plaintiff could shower, bathe and dress by himself, used no assistive devices, needed no help getting on or off the examination table and could perform a full squat. ( Id. ) Doctor Salon concluded that there were no objective findings to support the fact Plaintiff would be restricted in his ability to sit or stand or in his capacity to climb, push, pull or carry heavy objects. ( Id. at 588.)
ii. Mental impairments
1. Federation Employment Guidance Service
On May 17, 2010, Plaintiff received a "biopyschosocial" assessment at Bronx Lebanon Hospital. ( Id. at 350.) Plaintiff denied a history of mental health services and denied current "suicidal/homicidal ideation [and] auditory/visual hallucinations." ( Id. at 359.) Plaintiff did state that he was depressed due to "false accusations made against him...." ( Id. at 360.) The assessment stated that further evaluation and treatment of Plaintiff's mental health condition would need to be done before a job disposition could be made. ( Id. at 368.) On May 26, 2010, Plaintiff underwent a Federal Employment Guidance Service ("F.E.G.S.") "Phase II" psychiatry examination. ( Id. at 398.) Plaintiff was diagnosed with cannabis and cocaine dependence. ( Id. at 400-01.)
On June 9, 2011, in another "biopyschosocial" assessment, Plaintiff reported mental health treatment as a child and auditory hallucinations within the past week. ( Id. at 380.) The voices told him to kill people. ( Id. ) Kollie Saygbe, a F.E.G.S. social worker, found that Plaintiff's depression was "mild" but recommended him to a physician for further treatment. ( Id. at 384.) Later that day, Doctor Zobidatte Moussa evaluated Plaintiff and referred him to another physician for a Phase II examination. ( Id. at 392.) Doctor Moussa noted that Plaintiff was suffering from frequent auditory hallucinations telling him to arm himself with pistols. ( Id. ) Plaintiff also believed that he was being spied on by others and that people were spreading rumors that he had HIV. ( Id. at 395.) After Plaintiff's Phase II evaluation, Doctor Harvey Barash determined that Plaintiff suffered from schizophrenic disorders and unspecified drug abuse and that he had functional limitations due to his disorders that would last for at least 12 months, thereby making him unable to work. ( Id. at 404.) Doctor Barash found Plaintiff to be a chronic psychotic, in addition, Doctor Barash found that Plaintiff had reduced tolerance for stress and an inability to adhere to a regular work schedule. ( Id. ) It appears that Doctor Barash was so concerned that he called 911 to transport Plaintiff to a hospital for further evaluation. ( Id. )
On July 5, 2011, a "Wellness Plan" document indicated that Plaintiff would be treated for schizophrenia and that Plaintiff informed his case manager that his goal was to "stabilize with his medication in order to focus on becoming self sufficient." ( Id. at 534.) On January 18, 2012, John Dzwonar, Plaintiff's treating social worker, completed a screening of Plaintiff. ( Id. at 583.) He noted Plaintiff's long history of depression, anxiety and paranoia. ( Id. ) Plaintiff received a GAF[3] score of 52 indicating moderate symptoms or moderate difficulty in social, occupational or school functioning. ( Id. ); see also Kohler v. Astrue, 546 F.3d 260, 262 n.1 (2d Cir. 2008) (noting that this "moderate" category includes scores between 51 and 60 (quoting Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 2000))). On October 1, 2011, Plaintiff received a letter confirming that he was determined to be temporarily unable to work and was being referred for treatment. ( Id. at 406.)
On March 26, 2012, Plaintiff's "Wellness Plan" was extended due to his ongoing schizophrenia. ( Id. at 550.) Doctor Kevin J. Kenny, Plaintiff's treating psychiatrist, prescribed Risperidone, for the management of Plaintiff's psychotic disorders, and Citalopram, for the treatment of depression. ( Id. at 335-36, 550.) Plaintiff met with Doctor Kenny at least five times from January 2012 to July 2012. ( Id. at 53, 550.)
On May 2, 2012, Dzwonar confirmed that Plaintiff had been in weekly therapy and monthly medication management at Manhattan Counseling Center since January 1, 2012. ( Id. at 521.) Dzwonar diagnosed Plaintiff with "major depression recurrent." ( Id. )
On June 7, 2012, Doctor Kenny diagnosed Plaintiff with major depressive disorder. ( Id. at 463.) Doctor Kenny noted that Plaintiff has periods of stability but that his condition is chronic. ( Id. at 464.) Doctor Kenny concluded that Plaintiff is unable to work for at least 12 months. ( Id. ) On June 27, 2012, Plaintiff received a letter from F.E.G.S., which stated that he was unable to work and may be eligible for federal disability benefits and should report to a certain address to receive help filling out a disability benefits application. ( Id. at 599.)
On July 19, 2012, Doctor Kenny reiterated his diagnosis of "major depression recurrent." ( Id. at 584.) Doctor Kenny found Plaintiff's condition to be chronic but manageable. ( Id. ) Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 2000)). As discussed infra, see Part II.c.iii, the American Psychiatric Association has abandoned the GAF scale. Doctor Kenny opined that Plaintiff had a GAF score of 52 and was "markedly limited" in the following capacities: (1) remembering detailed instructions, (2) carrying out detailed instructions, (3) maintaining attention/concentration, (4) maintaining a regular work schedule, (5) sustaining ordinary routine without supervision, (6) working in coordination with others without distractions, (7) making simple work related decisions, (8) completing a normal workday without unreasonable rest periods, (9) interacting with others, (10) asking simple questions, (11) accepting instructions and responding to criticism appropriately, (12) getting along with others, (13) maintaining socially appropriate behavior, and (14) responding appropriately to changes in work. ( Id. at 584-85.) In support of his conclusions, Doctor Kenny noted that Plaintiff had poor memory, mood disturbances, emotional lability, [4] difficulty thinking or concentrating, hostility and irritability, social withdrawal or isolation, and mood swings triggered by "being around people too much." ( Id. at 588.)
Doctor Kenny also found that Plaintiff was "moderately limited" in the following: (1) being aware of normal hazards and taking appropriate precautions, (2) traveling to unfamiliar places or using public transportation, (3) setting realistic goals or making plans independently, (4) remembering locations and work-like procedures, (5) understanding and remembering one or two step instructions, and (6) carrying out simple one or two step instructions. ( Id. at 589.)
2. Doctor Haruyo Fujiwaki
On August 30, 2012, Doctor Fujiwaki performed a consultative psychiatric examination of Plaintiff. ( Id. at 589.) Doctor Fujiwaki noted that Plaintiff reported difficulty falling asleep, social withdrawal, crying spells, irritability and anger. ( Id. ) Plaintiff also reported hearing voices. ( Id. ) Doctor Fujiwaki concluded that Plaintiff could follow and understand simple directions and instructions, could maintain attention, concentration and a regular schedule, and could perform complex tasks with supervision. ( Id. at 591.)
3. Doctor R. Noble, PhD[5]
On September 13, 2012, Doctor R. Noble, PhD, a state agency psychological consultant, reviewed the record and concluded that Plaintiff did not meet the criteria of Listings 12.03 (schizophrenic, paranoid and other psychotic disorders), 12.04 (affective disorders), 12.06 (anxiety-related disorders) or 12.09 (substance addiction disorders). ( Id. at 54, 70.) Doctor Noble indicated that he gave "great weight" to the findings of Doctor Kenny, Doctor Salon and Doctor Fujiwaki. ( Id. at 55.)
4. New York Presbyterian Hospital
On June 9, 2011, Plaintiff was admitted as an emergency-status patient to New York Presbyterian Hospital pursuant to New York Mental Hygiene Law. ( Id. at 288.) Plaintiff was suffering from paranoid delusions and was deemed a danger to himself and others. ( Id. ) Plaintiff reported that his telephone was tapped and that people were accusing him of spreading diseases. ( Id. at 289.) On June 11, 2011, Plaintiff hand wrote a note stating that he did not belong at the hospital, that he has his own apartment and no mental problems. ( Id. at 293.) Plaintiff "retracted" this letter upon notice that he would be released on June 17, 2011. ( Id. at 294.)
On June 13, 2011, Plaintiff's commitment became involuntary. ( Id. at 287.) In relation to his involuntary commitment, Doctor Anna L. Dickerman examined Plaintiff. ( Id. at 292.) Doctor Dickerman noted that Plaintiff is "likely [a] chronic psychotic...." ( Id. ) On June 21, 2011, Doctor Maureen Martino diagnosed Plaintiff with a cocaine dependency along with secondary diagnosis of drug psychosis with hallucination, cannabis dependency and personality disorders. ( Id. at 302.)
5. Richmond University Medical Center
The record suggests that Plaintiff received inpatient treatment at Richmond University Medical Center for mental health.[6] ( Id. at 468, 569.) However, the record does not contain any primary documents attesting to this hospitalization.
On August 15, 2011, Plaintiff was examined by Wendy Wullbrandt, a licensed social worker, of the Behavior Health Service Division of the Richmond University Medical Center. ( Id. at 310-11.) Upon assessment, Plaintiff denied auditory hallucinations, denied believing that people were spying on him, and denied auditory hallucinations urging him to arm himself with pistols. ( Id. at 311.) Although Plaintiff denied delusions, Wullbrandt noted that he did exhibit some paranoid ideation. ( Id. ) Plaintiff felt hopeless about his unemployment and lack of income but denied suicidal/homicidal ideation. ( Id. ) Wullbrandt noted that Plaintiff's insight and judgment appeared "good to fair." ( Id. at 314.) She encouraged Plaintiff to attend an out-patient program for mental health and substance abuse but Plaintiff refused. ( Id. at 315.) Wullbrandth opined that Plaintiff was underreporting his symptoms due to a desire to find employment. ( Id. )
e. Non-medical evidence
i. Function Report
On July 5, 2012, Edinam Klu, Plaintiff's SSI case manager, completed a "function report - adult-third party" form. ( Id. at 158.) Klu reported that Plaintiff had no problem with personal care, lives alone, prepares his own meals daily, pays bills and handles a savings account and checkbook. ( Id. at 158-161.) Klu noted that Plaintiff has days where his depression causes him to feel like he is not able to do anything at all, that Plaintiff does not travel unless he needs to buy food or household items, but that he once used to participate in activities like socializing with family and friends. ( Id. at 160-62.) Klu further noted that Plaintiff has problems getting along with others but that he is able to get along well with authority figures. ( Id. at 163-64.) Klu also reported that Plaintiff appeared anxious at certain times during the interview process. ( Id. at 163.) On August 8, 2012, Klu completed another form reiterating the above information. ( Id. at 178-90.)
f. The ALJ's decision
The ALJ conducted the five-step sequential analysis as required, and more fully discussed below. First, the ALJ found that Plaintiff had not engaged in substantial gainful activity since June 20, 2010. ( Id. at 11.) Second, the ALJ determined that Plaintiff has the following severe impairments: "left elbow tendonitis; obesity; depressive, personality and psychotic disorders; and cannabis and cocaine dependence." ( Id. ) Third, the ALJ found that Plaintiff did not have an impairment or combination of impairments that meets or equals the severity of one of the listed impairments in Appendix 1 of the regulations. ( Id. at 11-12.) The ALJ "paid particular attention to" Listing 1.02 for major dysfunction of a joint, Listing 12.03 for psychotic disorders, Listing 12.04 for affective disorders, Listing 12.08 for personality disorders and Listing 12.09 for substance addiction disorders. ( Id. ) With respect to the mental disorders listings, the ALJ found that Plaintiff only suffered from a mild restriction in activities of daily living, moderate difficulties in maintaining social functioning, concentration, persistence, or pace, and no episodes of decompensation.[7] ( Id. at 12.) The ALJ also found that Plaintiff did not have a residual disease process barring an increase in mental demands or have an inability to function outside a highly supporting living environment. ( Id. )
Fourth, the ALJ found that Plaintiff could not perform past relevant work as a security guard. ( Id. at 16.) The ALJ gave Plaintiff the following residual functional capacity "RFC" assessment:
[Plaintiff] has the residual functional capacity to perform light work with frequent pushing or pulling with his left arm; work limited to simple and routine tasks; work in a low stress job defined as having no fixed production quotas, no hazardous conditions, only occasional decision making and only occasional changes in the work setting; work with close supervision, defined as having a supervisor checking in on him four times per day; no interaction with the public; and only occasional interaction with co-workers.
( Id. (citations omitted).) The ALJ also recognized that Plaintiff's obesity and left arm limitations render Plaintiff capable of only performing a range of light exertion. ( Id. at 15.) The ALJ, while noting that Plaintiff suffers from mental disorders and substance addiction, concluded that Plaintiff's mental condition can be stabilized with treatment and medication. ( Id. ) Finally, the ALJ determined that Plaintiff could perform a significant number of jobs in the national economy, and concluded that Plaintiff was not disabled. ( Id. at 17.)
II. Discussion
a. Standard of Review
"In reviewing a final decision of the Commissioner, a district court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision." Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004); see also Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per curiam). Substantial evidence requires "more than a mere scintilla." Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008)). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (citation omitted). Once an ALJ finds facts, the court "can reject those facts only if a reasonable factfinder would have to conclude otherwise. " Brault v. Soc. Sec. Admin., 683 F.3d 443, 448 (2d Cir. 2012) (citations and internal quotation marks omitted). In deciding whether substantial evidence exists, the court "defer[s] to the Commissioner's resolution of conflicting evidence." Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012). The Commissioner's factual findings "must be given conclusive effect so long as they are supported by substantial evidence." Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citation and internal quotations omitted). If, however, the Commissioner's decision is not supported by substantial evidence or is based on legal error, a court may set aside the decision of the Commissioner. Box v. Colvin, ___ F.Supp.2d ___, ___, 2014 WL 997553, at *13 (E.D.N.Y. Mar. 14, 2014); see Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). "In making such determinations, courts should be mindful that [t]he Social Security Act is a remedial statute which must be liberally applied;' its intent is inclusion rather than exclusion.'" McCall v. Astrue, No. 05-CV-2042, 2008 WL 5378121, at *8 (S.D.N.Y. Dec. 23, 2008) (quoting Rivera v. Schweiker, 717 F.2d 719, 723 (2d Cir. 1983)).
b. Availability of benefits
Federal disability insurance benefits are available to individuals who are "disabled" within the meaning of the Social Security Act (the "Act"). To be eligible for disability benefits under the Act, the plaintiff must establish his or her inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The impairment must be of "such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). The Commissioner has promulgated a five-step analysis for evaluating disability claims. 20 C.F.R. § 404.1520. The Second Circuit has described the steps as follows:
The first step of this process requires the [Commissioner] to determine whether the claimant is presently employed. If the claimant is not employed, the [Commissioner] then determines whether the claimant has a "severe impairment" that limits her capacity to work. If the claimant has such an impairment, the [Commissioner] next considers whether the claimant has an impairment that is listed in Appendix 1 of the regulations. When the claimant has such an impairment, the [Commissioner] will find the claimant disabled. However, if the claimant does not have a listed impairment, the [Commissioner] must determine, under the fourth step, whether the claimant possesses the residual functional capacity to perform her past relevant work. Finally, if the claimant is unable to perform her past relevant work, the [Commissioner] determines whether the claimant is capable of performing any other work. If the claimant satisfies her burden of proving the requirements in the first four steps, the burden then shifts to the [Commissioner] to prove in the fifth step that the claimant is capable of working.
Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (quoting Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996)).
c. Analysis
Defendant moves for judgment on the pleadings, claiming that the Commissioner's decision is supported by substantial evidence and should be affirmed. (Def. Mem. 1.) Plaintiff opposes the Defendant's motion and argues that he is disabled due to "major depression psychotic disorder." (Pl. Opp'n Ltr. 1.) Because Plaintiff's treating physician, Doctor Kenny, diagnosed Plaintiff with major depressive disorder and found that Plaintiff was disabled as a result of said disorder, the Court understands Plaintiff to argue that the ALJ failed to properly weigh the evidence. For the reasons set forth below, the Court agrees with Plaintiff.
i. Treating physician rule and duty to develop the record
"A treating physician's statement that the claimant is disabled cannot itself be determinative." Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (quoting Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999)). But a treating physician's opinion on the "nature and severity" of the plaintiff's impairments will be given "controlling weight" if the opinion is "wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the plaintiff's] case record." 20 C.F.R. § 404.1527(c)(2); see Matta v. Astrue, 508 F.Appx. 53, 57 (2d Cir. 2013) (discussing the treating physician rule); Petrie v. Astrue, 412 F.Appx. 401, 405 (2d Cir. 2011) ("The opinion of a treating physician is accorded extra weight because the continuity of treatment he provides and the doctor/patient relationship he develops place[s] him in a unique position to make a complete and accurate diagnosis of his patient." (quoting Mongeur v. Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir. 1983) (per curiam))); Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (discussing treating physician rule). A treating source is defined as a plaintiff's "own physician, psychologist, or other acceptable medical source" who has provided plaintiff "with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with [the plaintiff]." 20 C.F.R. § 404.1502; Bailey v. Astrue, 815 F.Supp.2d 590, 597 (E.D.N.Y. 2011).
An ALJ must consider various factors before determining how much weight to give a treating physician's opinion. Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (citing 20 C.F.R. § 404.1527(d)(2)). Specifically, the ALJ should consider: "(1) the frequen[cy], length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is a specialist." Selian, 708 F.3d at 418 (citing Burgess, 537 F.3d at 129); see also Halloran, 362 F.3d at 32 (discussing the factors). The regulations require that the ALJ set forth the reasons for the weight he or she assigns to the treating physician's opinion. Halloran, 362 F.3d at 32. The ALJ is not required to explicitly discuss the factors, but it must be clear from the decision that the proper analysis was undertaken. See Petrie, 412 F.Appx. at 406 ("[W]here the evidence of record permits us to glean the rationale of an ALJ's decision, we do not require that he have mentioned every item of testimony presented to him or have explained why he considered particular evidence unpersuasive or insufficient to lead him to a conclusion of disability.'" (quoting Mongeur, 722 F.2d at 1040)). Failure "to provide good reasons for not crediting the opinion of a claimant's treating physician is a ground for remand." Sanders v. Comm'r of Soc. Sec., 506 F.Appx. 74, 77 (2d Cir. 2012); see also Halloran, 362 F.3d at 32-33.
Before determining whether the Commissioner's decision is supported by substantial evidence, the court "must first be satisfied that the claimant has had a full hearing under the regulations and in accordance with the beneficent purposes of the Act." Moran, 569 F.3d at 112 (alterations omitted) (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)); see also Perez, 77 F.3d at 47 ("Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record."). The ALJ has a threshold duty to adequately develop the record before deciding the appropriate weight to give the treating physician's opinion. Burgess, 537 F.3d at 129 ("[A]n ALJ cannot reject a treating physician's diagnosis without first attempting to fill any clear gaps in the administrative record." (quoting Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999))); Collins v. Comm'r of Soc. Sec., No. 11-CV-5023, 2013 WL 1193067, at *9-10 (E.D.N.Y. Mar. 22, 2013 (remanding for failure to develop the record); Hinds v. Barnhart, No. 03-CV-6509, 2005 WL 1342766, at *10 (E.D.N.Y. Apr. 18, 2005) ("The requirement that an ALJ clarify a treating source's opinion that a claimant is unable to work is part of the ALJ's affirmative obligation to develop a claimant's medical history."); Pabon v. Barnhart, 273 F.Supp.2d 506, 514 (S.D.N.Y. 2003) ("[T]he duty to develop a full record... compels the ALJ... to obtain from the treating source expert opinions as to the nature and severity of the claimed disability.... Until he satisfies this threshold requirement, the ALJ cannot even begin to discharge his duties... under the treating physician rule." (alterations in original) (quoting Peed v. Sullivan, 78 F.Supp. 1241, 1246 (E.D.N.Y. 1991))). "Because of the considerable weight ordinarily accorded to the opinions of treating physicians, an ALJ's duty to develop the record on this issue is all the more important.'" Rocchio v. Astrue, No. 08-CV-3796, 2010 WL 5563842, at *11 (S.D.N.Y. Nov. 19, 2010) (citation omitted), report and recommendation adopted, No. 08-CV-3796, 2011 WL 1197752 (S.D.N.Y. Mar. 28, 2011). An ALJ's "failure to develop the record adequately is an independent ground for vacating the ALJ's decision and remanding the case." Green v. Astrue, No. 08-CV-8435, 2012 WL 1414294, at *14 (S.D.N.Y. Apr. 24, 2012) (citing Moran, 569 F.3d at 114-15), report and recommendation adopted, No. 08-CV-8435, 2012 WL 3069570 (S.D.N.Y. July 26, 2012). However, "where there are no obvious gaps in the administrative record, and where the ALJ already possesses a complete medical history, ' the ALJ is under no obligation to seek additional information in advance of rejecting a benefits claim." Petrie, 412 F.Appx. at 406 (quoting Rosa, 168 F.3d at 79 n.5).
ii. The ALJ properly addressed Plaintiff's physical limitations
Plaintiff complained of back and elbow pain, and the ALJ assessed Plaintiff's medical records under Listing 12.02 (major dysfunction of a joint). The ALJ found that Plaintiff suffers from left elbow tendonitis. (R. 15.) However, the ALJ went on to find that Plaintiff's left elbow tendonitis did not prevent him from performing a range of light work. ( Id. at 5.) As an initial matter, the Court notes that Plaintiff does not seem to be appealing the ALJ's decision as to his physical limitations as Plaintiff's opposition letter only mentions "major depression psychotic disorder" as the basis of his disability claim. (Pl. Opp'n Ltr. 1.) Moreoever, the ALJ's conclusion was supported by Plaintiff's own testimony that he had no limitations on his ability to stand or walk, (R. 41), Plaintiff's submission that he prepares his own meals, ( id. at 180), and representations from Plaintiff's SSI case manager that he has no problem performing daily activities such as bathing, preparing meals and dressing himself, ( id. at 159-60). The only medical evidence presented confirms that Plaintiff has left elbow tendonitis and only "mild stiffness." ( Id. at 575.) Nothing in the record, including Plaintiff's own testimony, indicates that his elbow impairment restricts Plaintiff's ability to perform light work. The Court also notes that at oral argument, Plaintiff did not assert any physical impairment as the basis for disability benefits. Therefore, the ALJ's decision regarding Plaintiff's physical limitations was supported by substantial evidence.
iii. The ALJ failed to properly address Plaintiff's mental disorders
Before assessing whether the ALJ properly weighed the evidence within the record regarding Plaintiff's mental limitations, it is helpful to consider the regulatory requirements at issue. The social security regulations provide nine diagnostic listings of mental disorders: "Organic mental disorders (12.02); schizophrenic, paranoid and other psychotic disorders (12.03); affective disorders (12.04); intellectual disability (12.05); anxiety-related disorders (12.06); somatoform disorders (12.07); personality disorders (12.08); substance addiction disorders (12.09); and autistic disorder and other pervasive developmental disorders (12.10)." 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.00(A). Plaintiff claims disability based on "major depression, psychotic disorders" and "major depression with psychotic features." (R. 66.) The ALJ assessed the medical findings in the record pursuant to Listing 12.03 (paranoid and other psychotic disorders), Listing 12.04 (affective disorders), Listing 12.08 (personality disorders) and Listing 12.09 (substance addiction disorders). ( Id. at 16.)
In order to meet the requirements of any of the listings identified by the ALJ, Plaintiff must satisfy, inter alia, "paragraph B" criteria, which address "impairment-related functional limitations that are incompatible with the ability to do any gainful activity." 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.00(A). To satisfy paragraph B, under the aforementioned listings, Plaintiff must show at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration
20 C.F.R. Part 404, Subpart P, Appendix 1, §§ 12.03(B), 12.04(B), 12.08(B).
If Plaintiff fails to satisfy the paragraph B criteria, he may still meet the requirements of Listing 12.03 (paranoid and other psychotic disorders) and Listing 12.04 (affective disorders) if he can meet the paragraph C criteria.[8] To satisfy the requirements of paragraph C, under Listings 12.03 and 12.04, Plaintiff must show a:
Medically documented history of a chronic affective disorder of at least 2 years' duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or
3. Current history of 1 or more years' inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement.
20 C.F.R. Part 404, Subpart P, Appendix 1, §§ 12.03(C), 12.04(C).[9]
With respect to the functional limitations enumerated in paragraph B, the ALJ found that Plaintiff had "mild restriction in activities of daily living, moderate difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence or pace, and no episodes of decompensation...." (R. 16.) The ALJ's conclusion was inconsistent with the July 19, 2012 medical findings of Plaintiff's treating physician Doctor Kenny, ( see id. at 584-585 (finding that Plaintiff had " markedly limited" ability to maintain concentration, to interact with others and to maintain socially appropriate behavior (emphasis added))), and the ALJ accordingly gave Doctor Kenny's opinions "little weight, " ( id. at 19).
An ALJ may give less than controlling weight to an opinion from a treating physician, but before doing so, the ALJ must apply the statutory factors listed in 20 C.F.R. § 404.1527(c). See 20 C.F.R. § 404.1527(c) ("Unless we give a treating source's opinion controlling weight under paragraph (c)(2) of this section, we consider all of the following factors in deciding the weight we give to any medical opinion." (emphasis added)). The factors to be considered under § 404.1527(c) are (1) length of the treatment relationship and the frequency of examination, (2) nature and extent of the treatment relationship, (3) supportability, (4) consistency, (5) specialization, and (6) any other factor which tend to support or contradict the opinion. 20 C.F.R. § 404.1527(c)(2)-(6); Santiago v. Comm'r of Soc. Sec., No. 13-CV-3951, 2014 WL 3819304, at *17 (S.D.N.Y. Aug. 4, 2014) (noting that an ALJ must evaluate these factors if he or she wishes "to discredit the opinion of a treating physician"); Saldin v. Colvin, No. 13-CV-4634, 2014 WL 3828227, at *12 (E.D.N.Y. Aug. 4, 2014) (identifying the factors).
The ALJ assigned little weight to Doctor Kenny's July 19, 2012 medical findings concerning Plaintiff's functional limitations because Doctor Kenny gave Plaintiff a moderate GAF score and found that Plaintiff's condition was "manageable." ( Id. at 19.) In doing so, the ALJ ignored Dr. Kenny's findings that Plaintiff had "markedly" limited ability to maintain concentration, to interact with others and to maintain socially appropriate behavior. The ALJ's explanation is insufficient. First, the Court notes that the GAF scale, previously published in the Diagnostic and Statistical Manual of Mental Disorders, has been abandoned by the American Psychiatric Association. See Am. Psychiatric Ass'n, Frequently Asked Questions about DSM-5 Implementation-For Clinicians (last visited Aug. 7, 2014) ("We do not believe that a single score from a global assessment, such as the GAF, conveys information to adequately assess each of these components, which are likely to vary independently over time."). Even assuming that GAF scores remain valid, a GAF score of 52 is at the low end of the "moderate" range. See Kohler, 546 F.3d at 262 n.1 (noting that this "moderate" category includes scores between 51 and 60 (citation omitted)). Doctor Kenny, presumably, understood a GAF score of 52 to be consistent with Plaintiff's "markedly limited" functional capacity. Cf. Quinn v. Astrue, No. 10-CV-1415, 2011 WL 1883848, at *7 (W.D. Pa. May 17, 2011) (noting that "a physician's GAF score is fairly understood to convey' his belief regarding a patient's level of impairment or ability to function" (quoting Gilroy v. Astrue, 351 F.Appx. 714, 716 (3d Cir. 2009))). Any discrepancy between Dr. Kenny's GAF score and functional capacity findings should have prompted the ALJ to develop the record, rather than to disregard Doctor Kenny's opinion that Plaintiff had markedly limited functional capacity to maintain attention/concentration and interact with others. See Walker v. Colvin, No. 12-CV-116, 2013 WL 5487443 (W.D.N.Y. Sept. 30, 2013) (finding that inconsistency within a treating physician's opinions "begs for clarification" (citing C.F.R. § 404.1512(e))); see also Rosa, 168 F.3d at 79 ("[I]f an ALJ perceives inconsistencies in a treating physician's reports, the ALJ bears an affirmative duty to seek out more information from the treating physician and to develop the administrative record accordingly." (quoting Hartnett v. Apfel, 21 F.Supp.2d 217, 221 (E.D.N.Y. 1998))); Cedeno v. Comm'r of Soc. Sec., 315 F.Appx. 352, 353 (2d Cir. 2009) (Sotomayor, J.) (remanding for further adjudicative proceedings due to the ALJ's failure to seek additional evidence from a treating physician whose opinions the ALJ deemed "conclusory and not supported by clinical and laboratory diagnostic tests").
The same reasoning applies to Doctor Kenny's conclusion that Plaintiff's condition was "manageable." The ALJ understood Doctor Kenny's finding of manageability to undercut his findings of "marked mental limitations." (R. 19.) However, manageable could refer to Plaintiff's ability to avoid endangering himself and others while still being unable to perform any gainful activity on a daily basis. The ALJ's duty to develop the record is especially important in the context of a mental impairment claim because the SSA regulations require that the ALJ's decision discuss "the significant history, including examination and laboratory findings, and the functional limitations that were considered in reaching a conclusion about the severity of the mental impairment(s)." 20 C.F.R. § 404.1520a. At oral argument, Defendant claimed that the record was complete and that the ALJ properly resolved any inconsistencies without having to recontact Dr. Kenny. Here, however, the record was not complete for two primary reasons.
First, the Court finds that Dr. Kenny's medical opinion was not "complete and detailed" enough to allow the ALJ to make a proper determination. See 20 C.F.R. § 404.1513(e); Cherico v. Colvin, No. 12-CV-5734, 2014 WL 3939036, at *22 (S.D.N.Y. Aug. 7, 201) ("The ALJ must therefore seek additional evidence or clarification when... the report does not contain all the necessary information, or [it] does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques.'" (alteration in original) (quoting Bonet v. Astrue, No. 05-CV-2970, 2008 WL 4058705, at *18 (S.D.N.Y. Aug. 22, 2008))). Dr. Kenny's opinion directly spoke to functional limitations that would, if credited, satisfy the paragraph B criteria of Listings 12.03, 12.04, 12.08 and 12.09. Although the ALJ suggested that Dr. Kenny's opinion was internally inconsistent, the Court finds that it only lacked necessary information to more explicitly identify how Plaintiff could have markedly limited functional capacity and a GAF score of 52 and a "manageable" condition.
Second, the ALJ failed to resolve a rather apparent ambiguity. Plaintiff testified that he was hospitalized twice. (R. 35.) The ALJ and Plaintiff also discussed the dates of these alleged hospitalizations. ( Id. at 35-37.) Several secondary documents in the record also mention two hospitalizations, discussed supra footnote 7. Yet, the ALJ decision only discusses Plaintiff's involuntary commitment at New York Presbyterian Hospital. ( Id. at 18.) Because two hospitalizations are discussed in several documents, in addition to Plaintiff's own testimony, it was the ALJ's duty to develop the record and confirm or deny this second hospitalization - this is especially true where Plaintiff proceeded pro se. See Moran v. Astrue, 569 F.3d 108, 113 (2d Cir. 2009) ("The ALJ must adequately protect a pro se claimant's rights by ensuring that all of the relevant facts are sufficiently developed and considered' and by scrupulously and conscientiously prob[ing] into, inquir[ing] of, and explor[ing] for all the relevant facts.'" (alterations in original) (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990))).
In addition to the ALJ's failure to develop the record, it is not clear that the ALJ assessed all the statutory factors of 20 C.F.R. § 404.1527(c) before assigning Doctor Kenny's opinion little weight. There is no mention of the nature or term of Doctor Kenny's relationship with Plaintiff or the consistency of Doctor Kenny's opinions with other parts of the record, notably, Plaintiff's own testimony, Plaintiff's involuntary commitment to New York Presbyterian Hospital and the opinions of Doctor Moussa and Doctor Barash, discussed infra Part II.c.iv. See Intonato v. Colvin, No. 13-CV-3426, 2014 WL 3893288, at *13-15 (S.D.N.Y. Aug. 7, 2014) (remanding, in part, due to the ALJ's failure "to consider and comprehensively set forth the factors needed to guide his decision to accord a treating physician less than controlling weight"); Coscia v. Astrue, No. 08-CV-3042, 2010 WL 3924691, at *8 (E.D.N.Y. Sept. 29, 2010) ("[T]he ALJ declined to accord [the plaintiff's treating physician's] assessment controlling, or even great, ' weight. In making this decision, the ALJ did not take into consideration two of the relevant factors.... As consideration of these factors is mandatory, the ALJ's lapse mandates remand." (citations omitted)); see also Orr v. Comm'r of Soc. Sec., No. 13-CV-3967, 2014 WL 4291829, at *8 (S.D.N.Y. Aug. 26, 2014) ("Given that consideration of these factors is mandatory, the Court cannot see how the ALJ could have properly applied the treating physician rule given the state of the record."); Rolon v. Comm'r of Soc. Sec., 994 F.Supp.2d 496, 507 (S.D.N.Y. 2014) ("The ALJ's decision erred by failing to explicitly consider several required factors, including... the frequency, length, nature, and extent of treatment."). Even absent a duty to develop the record with respect to Dr. Kenny's opinion, the Court is not confident that the ALJ properly adhered to the treating physician rule, and this error constitutes an independent ground for remand. Upon remand, after an examination of a fully developed record, if the ALJ declines to give Doctor Kenny's medical opinions controlling weight, the ALJ should identify and discuss the factors set forth in 20 C.F.R. § 404.1527(c).
iv. Non-treating physicians
The Court also notes that the ALJ is required to evaluate and weigh the medical findings of non-treating physicians. See 20 C.F.R. § 416.927(c) ("we will evaluate every medical opinion we receive...."); 20 C.F.R. 416.927(e)(2)(ii) ("Unless a treating source's opinion is given controlling weight, the administrative law judge must explain in the decision the weight given to the opinions of a State agency medical or psychological consultant..., as the administrative law judge must do for any opinions from treating sources, nontreating sources, and other nonexamining sources who do not work for us." (emphasis added)).
Here, on June 9, 2011, Plaintiff was evaluated by two doctors, Doctor Moussa and Doctor Barash, who both found him to be suffering from schizophrenic disorders. (R. 395, 404.) The ALJ's decision makes no mention of Doctor Moussa or Doctor Barash. Furthermore, although the ALJ did identify Plaintiff's June 9, 2011 F.E.G.S. records, he erroneously stated that Plaintiff's schizophrenic disorders were diagnosed as "stable." ( Id. at 18.) Plaintiff's June 9, 2011 F.E.G.S. records, from Doctor Moussa and Doctor Barash, state in no uncertain terms, that Plaintiff's schizophrenic disorders and schizoaffective disorders were unstable. ( Id. at 395, 404.) The results of Plaintiff's Phase II psychiatric evaluation was succinctly stated as follows: "Substantial Functional Limitations to Employment Due to Medical Conditions That Will Last For At Least 12 Months and Make The Individual Unable To Work." ( Id. at 391.)
The ALJ seems to have focused solely on the June 9, 2011 findings of the F.E.G.S. social worker, ( id. at 384), instead of the evaluations by the physicians performed later the same day, ( id. at 395, 404). The ALJ's failure to discuss these findings would be problematic in its own right, however, here, it appears that the ALJ misread the findings in addition to ignoring their conclusions in support of Plaintiff's claim. This error requires remand.[10] See Lewis v. Astrue, NO. 11-CV-7538, 2013 WL 5834466, at *27-30 (S.D.N.Y. Oct. 30, 2013) (finding that the ALJ committed "legal error" by failing to consider medical records "that may have added to, or been in tension with, " the ALJ's analysis); Santiago, 2014 WL 3819304, at *19 (finding "the ALJ's decision to disregard the opinions of the F.E.G.S. physicians, without any explanation" to be "troubling" and holding that the ALJ's error prevented the Court from "determin[ing] whether [plaintiff] was afforded a full and fair hearing").
III. Conclusion
For the foregoing reasons, the Court finds that the ALJ erred in failing to develop the record and properly weigh the evidence with respect to Plaintiff's mental impairments. Therefore, Defendant's motion for judgment on the pleadings is denied. The Commissioner's decision is vacated and this action is remanded for further administrative proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). The Clerk of Court is directed to close this case.
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Theme for 2015-2017
Pamela L. Dowd, President
Deep South Convention
Deep South Convention 2017
The Louisiana members are excited to welcome you to New Orleans and share what's "Naturally New Orleans".
We have the "Birds of a Feather" Flower Show on Sunday and Monday.
We also have the French Quarter Courtyard and Home Tour on Sunday which includes lunch and several private homes and courtyard gardens.
The programs in store will delight! We will learn about the Birds and Bees, Organic Gardening and Floral Designs. Have you ever wondered how the streets of New Orleans got their names? All of this, and a whole lot more. Vendor space is bright and close to all that is happening at Deep South.
Our host hotel is the Harrah's Casino Hotel and, fear not, there is very little walking to get to all we have planned. For those folks who are registered with the Casino, I understand parking will be free if you spend 30 minutes a day in the Casino dropping pennies, quarters or maybe dollars in machines.
Do you or your members need to refresh or just want to go on a wonderful tour of New Orleans and its Gardens; If yes, sign up for the Tri Refresher Tour on Wednesday.
Good News Deep South Region has opened a bank account so all checks will be made directly to Deep South Garden Clubs INC.
We are still working on optional Guest and spouse tours, we are sure they will delight. So look for those in the near future.
Carrie Martin
Attention Club Presidents!
Theme for 2015-2017
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Attention Club Presidents!

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Air Rescue Helicopter
"Christoph Regensburg"
Fly In 2016
"Christoph Nürnberg" at the early evening.
"Christoph Weser" getting ready for the day.
"Christoph 49" during a rescue mission in this little village.
"Christoph 53" takeoff back to Mannheim after refilling their petrol tank.
"Christoph Nürnberg" during takeoff after picking up a patient.


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October 22, 2012
Interactive Spreadsheet: Your Taxes if the Bush Tax Cuts Expire
In a Common Sense Capitalism first, we are going interactive with our readers. After extensive research, we've determined the impact of the Bush tax cuts expiring on Americans income. We've created a spreadsheet reflecting single and married filers, along with Social Security changes (4.2% to 6.2%) and Medicare changes (.9% surtax on income over $200K, although the Medicare tax is Obamacare, not Bush tax cut related). We've placed the tax bracket assumptions in two images below the interactive table. Try more than just your income to see the effects on other working Americans. How can the economy grow if taxes go up by this much?
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Is this restaurant good for large groups?
Does this restaurant offer highchairs for toddlers?
Is this restaurant good for lunch?
Is this a pub?
Does this restaurant have parking?
Is this restaurant good for dinner?
Does this restaurant offer free wifi?
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Thanks for helping!
Awesome as always! The donut holes for dessert are amazing so is the local wine selection. I also recommend the Irish nachos and hamburgers.
My husband and I went to Jack's for a quick bite while visiting Kingsville. It's a pub type restaurant in an old stately house.
We went on a Tuesday night around 730pm. We waited almost 10 minutes in the entrance while being told by everyone who walked past that the hostess will be here shortly to seat us. Finally a...
I did a business lunch here and enjoyed a wonderful craft beer ....ordered a Jacks Burger ....delicious. Great service. Reasonable prices.
Love the food, the outdoor seating area is cozy and tree sheltered,and there are lots of good beer choices. Definitely would go back again.
Located just of the 4 corners of Kingsville on the way to the Kingsville Park this well established restaurant is a very pleasant environment the food there is done to perfection always service is as good as the food. This is a treat off the everyday kudos to the staff and owner of this establishment.
The menu did not appeal, too many burgers.I don't go out to dinner for a burger, but I was part of a group, one of whom has booked the place. The place had a very English atmosphere, which I liked, and the waitstaff were good,Zack, the big man who was waiting tables, even came to chat,and he wasn't our waiter....
Really good food (and a reasonably varied menu), decent prices, stylish decor and laid back ambience...all in all a great choice !
Delicious menu oh what to choose?!!!? Mouth watering food, not to be missed. Wait staff are friendly and efficient. Always a busy place!! Go there, you won't be disappointed.
We were on a wine expedition weekend. This was our first stay in Kingsville, so after a long drive we were hungry and looking. My daughter found Jack's thanks to Trip Advisor.
We popped over to grab a bite to eat. We were a little nervous when the hostess asked if we had a reservation seeing how busy it. She...
A little over rated (3 people told us about this place) but the food was good. Suggest you call and make reservations on Fridays and weekends.
Thanks for joining us, we appreciate it.......you are correct about weekends, reservations are always a good idea unless you aren't on a tight time line as we always save tables for walk in guests....usually not much of a wait.
Trevor Loop
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Roasted Tomato Omelet – an Ageless Diet™ Recipe
Tania Van Pelt | Jan 22, 2014 | Comments 0
Omelets are one of my favorite go-to dinners. They are easy to make, and they are a great tasting, high-protein, full of good fat and omega-3s, food that you can make with just about any vegetables you want. They keep well too. So you can eat it all week. As leftovers, brought to room temperature, they make a delicious, super easy lunch. I use roasted tomatoes and an onion in this omelet because I roasted 8 of them the other day (You'll need about 4 whole oven roasted tomatoes; the 4 tomatoes will be cut into halves or quarters. ). And they're innate sweetness goes really well with the savory sauteed onion and herbs. (Here's the video on how to make the roasted tomatoes)
I use pasture-raised, organic eggs. And I keep them at room temperature. It makes for an easier egg to crack and whip, which gives you a lighter omelet.
Roasted Tomato Omelet Recipe
Serves 4 (or cook it and keep it for leftovers – it's great for lunch on the go!)
2 tablespoons extra virgin olive oil
4 whole oven roasted (organic) tomatoes (the tomatoes have already been cut in halves or quarters for roasting)
1/2 onion, finely diced
Sea salt and freshly ground pepper
6 organic, pasture-raised eggs
1 teaspoon red pepper flakes
1 teaspoon dried oregano
1/2 cup fresh herbs, basil, parsley, etc.
Heat 1 tablespoon of the olive oil over medium-high heat in a heavy 10 or 12-inch pan (I like to use a well seasoned cast-iron skillet.) Add a teaspoon of salt, red pepper flakes, and oregano. Add the onion, saute until golden, and then add the roasted tomatoes. Saute for about a minute. Add the fresh herbs, saute for 30 seconds.
Beat the eggs in a large bowl (you can do this while the onions are cooking). Add a couple of tablespoons of water to the eggs and keep beating. This will make them frothier and lighter.
Add the eggs. Distribute the eggs and filling evenly over the surface. Shake the pan gently to let the eggs run underneath during the first few minutes of cooking. Once a few layers of egg have cooked turn the heat down to low, cook about 15-20 minutes until almost cooked through. Flip the omelet – don't worry if it breaks a little or isn't a perfect flip, you can easily piece it back together, once flipped. Cook for a few more minutes until both sides are golden. Serve with a green salad. And if you're feeling like you want a little spice, use the smoky cashew sauce as a condiment.
This omelet keeps for about 3-4 days. Enjoy!
(Below is the video of how to make this recipe)
Filed Under: Ageless Diet™ • Recipes
About the Author: Tania Van Pelt is the creator of Happiness Series. After working in film, she realized that creating content for an online world that moves and inspires people is where it's at. She loves the immediacy and the vibrancy of working online. Tania created Happiness Series because she wants to empower people to live healthier, longer, more joyful lives through fitness, nutrition, stress management and integrative wellness. After years of research and practical application, she is excited about the newest project, Ageless Diet™. Ageless Diet is a lifestyle that promotes an Ageless You. Because getting older doesn't have to mean aging, and losing weight doesn't have to be hard. Happiness Series and Ageless Diet are going in new directions, bringing people together in beautiful settings with retreats and conferences. Books and a cooking series are soon to follow. Tania also recently completed her sitcom web/TV series pilot Employees Only, at http://employeesonly.tv.


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Circle I Ground Works Inc
Po Box 6731 Banks, Alabama 36005(239) 694-6439
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AboutCircle I Ground Works Inc is located at the address Po Box 6731 in Banks, Alabama 36005. They can be contacted via phone at (239) 694-6439 for pricing, hours and directions.
For more information contact Lonnie Ives, President
For maps and directions to Circle I Ground Works Inc view the map to the right. For reviews of Circle I Ground Works Inc see below.
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- Phone: (239) 694-6439


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Map of hotels in Cevennes National Park
- Gorges du Tarn
- Wolves of Gevaudan
- Grotte des Demoiselles
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- Mende Cathedral
- Golf des Gorges du Tarn
- Church of St. Gervais and St. Protais
- Aven Armand
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- Les Tortues Branchees
- Castle of St Alban
- Church of St Alban
- Filature des Calquieres Museum
- Grottes de Dargilan
- Church of Saint-Etienne
- Gevaudan Statue
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October 13, 2010
MHC FINANCING LIMITED PARTNERSHIP TWO, PLAINTIFF,v.CITY OF SANTEE; AND DOES 1 THROUGH 100, DEFENDANTS.
ORDER GRANTING DISMISS DEFENDANT'S MOTION TO [Doc. No. 46]
In this action brought under 42 U.S.C. § 1983, Plaintiff MHC Financing Limited Partnership Two ("MHC") has asserted takings and due process claims against Defendant City of Santee ("the City"). Presently before the Court is the City's motion to dismiss MHC's First Amended Complaint ("FAC") under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). MHC filed an opposition, and the City filed a reply. The Court heard oral argument on September 17, 2010. For the reasons stated herein, the Court GRANTS the City's motion to dismiss.
On or about November 27, 1998, the City of Santee ("the City") began enforcing Ordinance 381, a mobile home rent control ordinance that was adopted by the City Council pursuant to an initiative petition. (FAC ¶ 7.) Ordinance 381 restricted rent increases more severely than the prior rent control ordinance, Ordinance 324/329. (Id.) Shortly after the adoption of Ordinance 381, the City was alerted that the version of Ordinance 381 adopted by the City Council differed from the petition circulated to the voting public. (FAC ¶ 8.) Accordingly, on or about January 24, 2001, the City adopted Ordinance 412 ("Original Ordinance 412"), which was intended to cure the error in the adoption of Ordinance 381. (FAC ¶ 9.) The City began enforcing Original Ordinance 412 on February 23, 2001. (Id.) Original Ordinance 412 expressly provided that it was retroactive to the effective date of Ordinance 381.
MHC Challenges Original Ordinance 412 in State Court
On October 29, 2001, Plaintiff MHC, the owner and operator of the Meadowbrook Mobilehome Park ("Meadowbrook"), filed an action styled MHC Financing Limited Partnership Two v. City of Santee, San Diego County Superior Court, Case No. GIC 777094 (hereinafter, "Downtown State Court Action"), against the City seeking a judicial declaration that both Ordinances 381 and 412 were null and void because Ordinance 381 and Original Ordinance 412 were enacted in violation of California law. (FAC ¶ 10.) MHC reserved all federal claims pursuant to England v. Louisiana Board of Medical Examiners, 325 U.S. 411 (1964). (Id.) MHC also contended the City's enforcement of Ordinances 381 and Original Ordinance 412 impermissibly chilled MHC's right of petition for rent increases. (Id.)
Judge Haden of the San Diego County Superior Court agreed with MHC, finding that the City illegally adopted Ordinances 381 and Original Ordinance 412 and the ordinances were thus void. (FAC ¶ 12.) Judge Haden also found that the City's enforcement of assessments and fee-shifting provisions of Ordinances 381 and Original Ordinance 412 chilled MHC's right to petition for rent increases in violation of the California Constitution. (Id.)
On appeal, the California Court of Appeal found that the City could retroactively apply Original Ordinance 412 to the effective date of Ordinance 381, and thus reversed Judge Haden's determination that Original Ordinance 412 was void. (FAC ¶ 14.) The Court of Appeal affirmed Judge Haden's decision in all other respects, including his finding that the assessment and fee-shifting provisions of Ordinance 381 and Original Ordinance 412 had a chilling effect on MHC's right to petition for rent increases. (Id.) The Court of Appeal held, however, that those provisions could be severed from the remainder of the ordinance. The Court remanded the case to determine (1) whether MHC suffered injury as a result of any differences between Original Ordinance 412 and Ordinance 381 and the retroactive application of Original Ordinance 412 to the effective date of Ordinance 381; (2) whether MHC suffered any injury as a result of the assessment and fee-shifting provisions found unconstitutional; and (3) the proper remedy for such injury. (Id.)
In August and September 2007, Judge Enright of the San Diego Superior Court held a bench trial in accordance with the Court of Appeal's 2005 remand order. (FAC ¶ 22.) During the course of that proceeding (hereinafter, the "Remand Proceeding"), MHC claimed it had been injured by the City's enforcement of the chilling provisions declared invalid by the Court of Appeal and from the City's retroactive application of the differences between Ordinances 381 and 412. (FAC ¶ 24.) Those injuries included (1) denial of market rents; and (2) denial of the right to discretionary rent increase process. (Id.) The City disputed any damages were owed, arguing the Commission would not have awarded MHC any rent increases because MHC had failed to pay annual assessments. (FAC ¶ 26.) Judge Enright determined that MHC failed to establish any legally remediable injury. See Pl.'s Opp'n at 11.
MHC's First Federal Challenge to Original Ordinance 412
In 2001, one month after filing the "Downtown State Court Action," MHC commenced an action in the Southern District of California before Judge Benitez, challenging Original Ordinance 412 on federal and state takings, substantive due process, and equal protection grounds ("2001 Federal Action"). (Def.'s RJN, Ex. B.) MHC asserted Original Ordinance 412 caused a taking of its property without compensation and without substantially advancing a legitimate purpose in violation of the Fifth Amendment of the United States Constitution. (Id.) MHC also alleged that Original Ordinance 412 constituted a taking for private use in violation of the public use clause of the Fifth Amendment of the Constitution. (Id.)
Judge Benitez granted summary judgment in favor of the City, holding that MHC's as-applied challenges to Original Ordinance 412 were not ripe, that MHC's facial claims were barred by the statue of limitations for 42 U.S.C. § 1983 claims, and that MHC's claims were also moot because the California Superior Court had enjoined the City from enforcing the ordinance. (Def.'s RJN, Ex. B.) In reference to MHC's as applied claims, Judge Benitez noted: "[s]ince MHC has not yet pursued compensation for its as-applied 'taking' it has not yet been denied just compensation and the as-applied takings claim is not yet ripe for decision." (See id. at 6.)
On appeal to the Ninth Circuit, MHC argued that its claims were ripe because, inter alia, it allegedly already sought full compensation through its litigation of the "Downtown State Court Action." (Def.'s RJN, Ex. J.) The Ninth Circuit disagreed and affirmed. (Def.'s RJN, Ex. K.) Introduction of Revised 412 Ordinance
On or about December 15, 2005, the City's staff presented the Commission an ordinance entitled "Ordinance 412-Revised by Court Decision." (FAC ¶ 16.) It is this "Revised Ordinance 412" that is the subject of this suit.
Revised Ordinance 412 deleted the provisions that the State Court of Appeal had specifically identified as unconstitutionally chilling MHC's ability to request rent increases. (FAC ¶ 17.) It also deleted certain provisions that neither Judge Haden (the judge who first declared parts of the ordinance unconstitutional in the "Downtown State Court Action") nor the Court of Appeal identified by number, including section 2.44.170(F)(1) and the fee-shifting provision 2.44.100(c)(3). (Id.) Last, Revised Ordinance 412 also changed a cross reference contained in Section 2.44.100(c)(2) of the ordinance from 2.44.110(C) to Section 2.44.100(c)(1). (FAC ¶ 19.) This was apparently to correct a typo in the original ordinance. The original provision read: "[i]n the event a park owner believes that the net operating income will be less than provided for in section 2.44.110(C)(1) a park owner shall be entitled to elect instead of the annual permissible adjustment, to file an application with the commission for an annual adjustment . . . ." (Id.) Original Ordinance 412 did not have a "Section 2.44.110(C)(1)." It did, however, have a section 2.44.100(C)(1). (FAC ¶ 20.)
A State Court Proceeding Initiated by the City
In December 2003, sometime after both the Downtown State Action and the 2001 Federal Action were filed, the City filed an action in the East County Division of the San Diego Superior Court (the "East County State Court Action") to enjoin MHC from violating Ordinance 329 (the original ordinance which was supposedly supplanted by Ordinance 381 and Original Ordinance 412). (Def.'s RJN, Ex. M.) In 2006, MHC filed a cross-complaint for federal and state constitutional takings and substantive due process claims under 42 U.S.C. § 1983 (the same claims they alleged in Judge Benitez's court and the same claims they allege here). (Def.'s RJN, Exs. L, N.)
On July 27, 2007, Judge Sturgeon heard a motion for summary judgment by the City on MHC's takings and due process claims. (Def.'s RJN, Ex. O.) The City asserted MHC's as applied takings and due process claims were not ripe, and that MHC's facial takings and due process causes of action were barred by the statute of limitations. (Id.) Judge Sturgeon agreed and granted summary judgment in favor of the city on August 6, 2007. In an opinion that became final on June 23, 2010, the California Court of Appeal unanimously affirmed Judge Sturgeon's ruling in its entirety. (Def.'s RJN, Ex. G.)
MHC's Current Complaint
On October 29, 2007, MHC filed its First Amended Complaint in this Court. (Doc. No. 14.) MHC alleges that Revised Ordinance 412, both facially and as applied, violates the Fifth Amendment's Takings Clause, and that the City's enforcement of Revised Ordinance 412 constitutes a denial of both substantive and procedural due process. (Id.)
On November 15, 2007, the City filed a motion to dismiss for lack of subject matter jurisdiction. (Doc. No. 18.) However, before ruling on the motion to dismiss, on February 28, 2008, the Court ordered a stay of the proceedings pending a final judgment in the East County State Court Action. (Doc. No. 31.) Accordingly, the Court denied the motion to dismiss without prejudice on August 15, 2008, holding that it was moot. (Doc. No. 33.) On November 24, 2009, the Court ordered a further stay pending final judgment in the East County State Court Action. (Doc. No. 41.) On July 28, 2010, the Court lifted the stay and directed the City to file a motion to dismiss by August 20, 2010. (Doc. No. 45.)
The City filed the present motion to dismiss ("Def.'s Mot.") on August 17, 2010. (Doc. No. 46.) MHC filed an opposition ("Pl.'s Opp'n"), (Doc. No. 48), and the City filed a reply, (Doc. No. 54).
I. Legal Standards
A. Federal Rule of Civil Procedure 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) allows for a motion to dismiss where the court lacks subject-matter jurisdiction. Because "[f]ederal courts are courts of limited jurisdiction," the Court "presume[s] that a cause [of action] lies outside this limited jurisdiction[.]" Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A Rule 12(b)(1) motion "can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency, and in so doing rely on affidavits or any other evidence properly before the court." St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989). Thus, the existence of disputed material facts will not preclude the court from evaluating for itself the merits of jurisdictional claims. Id. Because the plaintiff bears the burden of establishing subject matter jurisdiction, no presumption of truthfulness attaches to the allegations of the plaintiff's complaint, and the Court must presume that it lacks jurisdiction until the plaintiff establishes jurisdiction. Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989).
Whether a claim is ripe for adjudication goes to a court's subject matter jurisdiction under the case or controversy clause of article III of the federal Constitution. St. Clair, 880 F.2d at 201 (citing Unity Ventures v. County of Lake, 841 F.2d 770, 774 (7th Cir. 1988).
B. Federal Rule of Civil Procedure 12(b)(6)
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a) (2009). A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court must accept all factual allegations pled in the complaint as true, and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, rather, it must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).
However, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citation omitted). A court need not accept "legal conclusions" as true. Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1949 (2009). In spite of the deference the court is bound to pay to the plaintiff's allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts that [he or she] has not alleged or that defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
II. Analysis
A. Timeliness of MHC's As-Applied Takings and Due Process Claims*fn1
In determining whether takings claims are properly before the Court, first the Court must determine whether the claim is ripe and then determine whether the claim is barred by the statute of limitations. Ventura Mobilehome Cmtys. Owners Ass'n v. City of Buenaventura, 371 F.3d 1046, 1052 (9th Cir. 2004) (citing Hacienda Valley Mobile Estates v. City of Morgan Hill, 353 F.3d 651, 655 (9th Cir. 2003).
In Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 186, 194 (1985), the Supreme Court articulated a two-prong analysis for determining whether a takings claim is ripe. First, the claimant must obtain "a final decision regarding the application of the zoning ordinance . . . to its property." Id. at 186. "Until there has been a 'final, definitive position regarding' how the regulations will be applied to the land, a court cannot determine whether a compensable taking has occurred." Hensler v. City of Glendale, 876 P.2d 1043, 1049 (Cal. 1994) (citing Williamson County, 473 U.S. at 191). Second, the claimant must have "unsuccessfully attempted to obtain just compensation through the procedures provided by the state." Williamson County, 473 U.S. at 191. Until just compensation is denied, there has been no constitutional violation. See id. at 194 n.13; Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 687 (9th Cir. 1993). A plaintiff need not comply with these requirements if state remedies would be inadequate or futile. Los Altos El Granada Investors v. City of Capitola, 97 Fed. Appx. 698, 700 (9th Cir. 2004) (quoting Williamson County, 473 U.S. at 197). However, the futility exception is narrow, and mere uncertainty does not establish futility. Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 920 F.2d 1496, 1501 (9th Cir. 1990).
The City maintains that MHC has not satisfied either prong of Williamson County, and that MHC's failure to allege that it applied for and was denied a rent increase or modification precludes it from relying on the futility exception to the state compensation requirement. See Def.'s Mot. at 11-15. MHC does not contend that it sought a rent increase or modification prior to filing this action or that it sought relief through a Kavanau adjustment, the state procedure designed to provide compensation for rent control losses. See generally Pl.'s Opp'n. Rather, MHC relies on the Remand Proceeding in arguing that its claims are ripe. MHC argues that the City's litigation posture in the Remand Proceeding constitutes a final decision regarding the application of Revised Ordinance 412 to its property. See id. at 11-12. Likewise, MHC argues that it sought compensation in the Remand Proceeding.*fn2 See Pl.'s Opp'n at 13.
As an alternative, MHC argues that it should not be required to satisfy the Williamson County requirements. As to the first requirement, MHC contends that its failure to obtain a final decision cannot be a bar here due to the City's misconduct. See id. at 12. According to MHC, the City took inconsistent positions in the Remand Proceeding and determined MHC "was not eligible under its made-for-trial standard."*fn3 Id. As to the second requirement, MHC argues that seeking compensation through state procedures would be futile. MHC asserts it would be futile because the City "has already indicated that it will not accept a rent increase petition from MHC, which is the first step of the Kavanau procedure," and because the City "has applied" the Ordinance to deny a Net Operating Income Adjustment*fn4 unless a parkowner's net operating income is less than 50% of its gross income. Pl.'s Opp'n at 14.
The Court turns to the Williamson County requirements, noting at the outset that several courts have held takings claims unripe based on a claimant's failure to apply for a rent increase. See Yee v. City of Escondido, 503 U.S. 519, 534 (1992) (agreeing with respondent that as applied regulatory taking claim was unripe because petitioners had not sought rent increase); Ventura Mobilehome Cmtys. Owners Ass'n v. City of San Buenaventura, 371 F.3d 1046, 1053 (9th Cir. 2004) (holding plaintiff's claim unripe due, in part, to its failure to apply for a rent increase); Montclair Parkowners Ass'n v. City of Montclair, 90 Cal. Rptr. 2d 598, 602 n.2 (Cal. Ct. App. 1999) (quoting Sandpiper Mobile Village v. City of Carpinteria, 12 Cal. Rptr. 2d 623, 627 (Cal. Ct. App. 1992) ("Because Sandpiper has not alleged that it has attempted to change the use of its park or to apply for a rent increases, its regulatory taking claim is not ripe")). In contradictory fashion, MHC argues that the City will not accept a rent increase petition and, at the same time, that it has now applied for a rent increase. See Pl.'s Opp'n at 12-13. MHC filed a formal petition the same day it filed its opposition to the present motion in order to "eliminate any threshold impediment to its futility argument." See id. at 13. MHC does not contend that the City refused to accept its petition, that the City has issued a final decision on the petition, or that the petition itself satisfies the final decision requirement. See generally id.
Instead, MHC posits the novel theory that the City's position in the Remand Proceeding that MHC was ineligible for a rent increase is the functional equivalent of a formal denial of a petition for rent increase, and thus it satisfies the final decision requirement. See id. at 11-12. Yet, incongruously, MHC also contends that the City adopted a "made-for-trial" standard and that "MHC would have been eligible for an NOI Adjustment under the correct standard, as reflected in Revised Ordinance 412." In other words, according to MHC, the City's litigation posture represents both an authentic final decision and inauthentic gamesmanship. Taken together, MHC's assertions counsel against ascribing finality to any "decision" the City made in connection with the Remand Proceeding.
MHC also relies on the Remand Proceeding satisfy the second Williamson County requirement. At the outset of the Downtown State Court Action, MHC expressly reserved its federal claims under England v. Louisiana Board of Medical Examiners, 325 U.S. 411 (1964), and asserted a variety of state court claims. FAC ¶ 10. Specifically, MHC asserted violations of the Elections Code, the California Constitution's equal protection clause, the Brown Act, Article XIIID of the California Constitution, and the right to petition under article I, section 3 of the California Constitution. See Def.'s RJN, Ex. A at 6. On remand, Judge Enright expressly construed the Court of Appeal as having limited MHC's remedy to the causes of action MHC had asserted at the outset of the action. See Pl.'s RJN, Ex. L at 8 (noting "MHC's claims that Ordinances 381 and 412 are unconstitutional are beyond the scope of remand"). Judge Enright observed, "[i]t is undisputed that MHC failed to raise takings and due process claims in this action. Instead, MHC elected to pursue federal takings and due process claims in federal court." See Pl.'s RJN, Ex. L at 9. Accordingly, contrary to MHC's assertions, the issues in the Remand Proceeding were distinct from those raised here, and Judge Enright expressly declined to consider whether MHC was entitled to just compensation in the Remand Proceeding.
Lastly, pursuit of state compensation would not be futile. The Ninth Circuit has expressly held the Kavanau procedure is "an adequate procedure for seeking just compensation." Equity Lifestyles Props., Inc. v. County of San Luis Obisbo, 548 F.3d 1184, 1192 (9th Cir. 2008). MHC's assertion that the City will deny its petition for rent increase is mere speculation, especially when juxtaposed with its contention that it is "eligible for a NOI Adjustment under the correct standard, as reflected in Revised Ordinance 412." Pl.'s Opp'n at 12. At most, MHC's position reflects uncertainty, and "uncertainty does not equal futility." Manufactured Home Cmtys., Inc., v. City of San Jose, 420 F.3d 1035. The Courtconcludes MHC's as-applied takings and substantive due process claims are not ripe.*fn5
Accordingly, the Court DISMISSES WITHOUT PREJUDICE MHC's as applied takings and due process claims.
B. Timeliness of MHC's Facial Taking Claims
As a preliminary matter, the Court of Appeal's holding in the East County State Court Action precludes MHC from relitigating the issue of whether the City staff's presentation of Revised Ordinance 412 to the Commission constituted an enactment of a new ordinance subject to judicial review. In the East County State Court Action, the Court of Appeal expressly held that "presentation by the City's staff to the Commission of [Revised Ordinance 412] does not constitute an enactment giving rise to a new limitation period" and the City "has not severed or otherwise altered any provisions contained in Ordinance 412 since its enactment on January 24, 2001."
Def.'s RJN, Ex. G at 37 (internal quotation marks omitted). As a consequence, MHC cannot assert a facial challenge to Revised Ordinance 412 and the Court evaluates MHC's facial challenges against Original Ordinance 412.
The Court turns to whether MHC's facial challenges to Original Ordinance 412 are timely.*fn6 MHC has also asserted a Nollan/Dolan claim,*fn7 which relies on the theory that Ordinance 412 does not "substantially advance" any government purpose. FAC ¶ 66. MHC's Nollan/Dolan claim is immediately ripe and not subject to the Williamson County requirements. San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323, 341 n.23 (2005); Yee v. Escondido, 503 U.S. 519, 534 (1992). Though ripe, MHC's Nollan/Dolan claim is subject to the applicable statute of limitations. In California, the applicable statue of limitations for civil rights actions brought under 42 U.S.C. § 1983 is the two-year statute of limitations for personal injury actions. Hacienda, 353 F.3d at 655 n.2; Cal. Civ. Proc. Code § 335.1. Section 1983 claims which have already expired when the two-year limitations period came into effect on January 1, 2003, however, are subject to California's prior one-year limitations period for personal injury actions. See, e.g., Equity Lifestyle Props., Inc. v. County of San Luis Obispo, 505 F.3d 860, 869 (9th Cir. 2007). Whereas state law determines the length of the limitations period, federal law determines when a civil rights claim accrues. Javor v. Taggart, 98 Cal. App. 4th 795, 803 (Cal. Ct. App. 2002). Under federal law, the date of accrual is either (1) the date compensation is denied in state courts, or (2) the date the ordinance is passed if resort to state courts is futile. Hacienda v. Valley Mobile Estates v. City of Morgan Hill, 353 F.3d 651, 655 (9th Cir. 2003); Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 688 (9th Cir. 1993).
Here, the Court has already determined that compensation has not been denied in state courts, so the statute of limitations for MHC's Nollan/Dolan claim runs from the date the City enacted Original Ordinance 412 at the latest.*fn8 The City enacted Original Ordinance 412 in January 2001, and MHC did not initiate this action until May 2007, more than six years later. As a consequence, MHC's claim is barred by the statute of limitations. The Court therefore DISMISSES WITH PREJUDICE MHC's Nollan/Dolan claim.
Any other facial taking claim are subject to Williamson County. However, the final decision requirement does not apply to facial claims, because such claims derive from the ordinance's enactment, not any implementing action on the part of government authorities. Ventura Mobilehome Cmtys. Owners Ass'n v. City of San Buenaventura, 371 F.3d 1046, 1052 (9th Cir. 2004); Hacienda, 353 F.3d at 655 (citing Yee v. Escondido, 503 U.S. 519, 534 (1992)). Facial claims are not exempt from the second Williamson County requirement. Hacienda, 353 F.3d at 655. For the reasons stated above, the Court concludes that MHC has not satisfied the second Williamson County requirement, and therefore MHC's facial taking claims are not ripe. Accordingly, the Court DISMISSES WITHOUT PREJUDICE MHC's remaining facial challenges to Original Ordinance 412.
For the foregoing reasons, the Court concludes that MHC's Nollan/Dolan claim is barred by the statute of limitations, and the remainder of MHC's takings and due process claims are not ripe. Accordingly, the Court GRANTS Defendant's motion to dismiss and ORDERS as follows:
(1) MHC's as applied taking and due process claims are DISMISSED WITHOUT PREJUDICE; (2) its Nollan/Dolan takings claim is DISMISSED WITH PREJUDICE; and (3) its remaining facial taking and due process claims are DISMISSED WITHOUT PREJUDICE.
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