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Sony CorporationNYSE
Thu, Nov. 17, 7:01 PM
- Videogame sales were up 6% Y/Y in total in October, as some key pre-holiday software releases again made up for slipping hardware.
- Overall sales were at $875.7M, according to NPD Group. Hardware revenues dropped 20% to $215.2M, and accessories spending fell 24% to $121M.
- "Unit sales for the Xbox One (MSFT +1.7%) brand of hardware grew by 8% compared to last October," said NPD's Sam Naji, as pricing for Xbox One hardware dropped 17% with a lower priced One S Minecraft bundle. The month's best-selling hardware, though, was the PS4 (SNE +1.1%) Slim 500 GB Uncharted 4: A Thief's End bundle. And Nintendo's (OTCPK:NTDOY +3.4%) 3DS saw its fifth straight month of Y/Y growth.
- Meanwhile, videogame software spending on console platforms rose 31% to $505.7M, and PC game software jumped 172% to $33.8M, thanks to "popular new games that included Battlefield 1, Mafia III, Gears of War 4, Titanfall 2 and Civilization VI," said Naji.
- Individual games (ranked by dollar sales): Battlefield 1 (EA +1%) took the top spot, followed by Mafia III (TTWO +4.7%) and Gears of War 4 (NASDAQ:MSFT). FIFA 17 (NASDAQ:EA) was fourth and NBA 2K17 (NASDAQ:TTWO) fifth.
- Rounding out the top 10: Elder Scrolls V: Skyrim (Bethesda Softworks), WWE 2K17 (TTWO), Civilization VI (TTWO), Titanfall 2 (EA) and Madden NFL 17 (EA).
Tue, Nov. 8, 4:42 PM
- PlayStation Vue, the streaming TV service from Sony (SNE +0.8%), is kicking out Viacom (VIA -0.6%, VIAB -0.6%) this weekend, and adding some new channels instead.
- The service is losing all the Viacom networks (which include MTV, Comedy Central and Spike) as of Nov. 11.
- "As part of our ongoing evaluation of the PlayStation Vue offering, we have determined that removing the bundle of channels from Viacom is the best way for us to continue to offer the most compelling value to our fans," says Vue chief Dwayne Benefield.
- Meanwhile, tomorrow the service is adding BBC America and NBA TV, and says that "Vice and more local broadcast stations from CBS and Fox" are coming soon.
Tue, Nov. 1, 12:20 PM
- The battle for the live-TV streaming audience is heating up as Hulu signs deals with Fox (FOX -1.1%, FOXA -0.6%) and Disney (DIS -0.4%) to incorporate dozens of networks into its upcoming service.
- Fox and Disney are part of the co-ownership group at Hulu, of course, along with NBCUniversal (CMCSA -0.6%) and Time Warner (TWX -0.7%). The new deals mean that Hulu's service will include Disney's nets (particularly including ESPN live and on demand, as well as others in the Disney/ABC group) and Fox's entertainment, news, sports and nonfiction services.
- While early streaming-TV efforts (from Sling TV (DISH -1%) and Sony (SNE -2.2%)) looked more like "skinny bundling," lately the bundles are looking fatter. Hulu's adding dozens of networks, and AT&T's (T -0.7%) DirecTV Now (launching this month) is promising more than 100 channels for $35/month.
Tue, Nov. 1, 5:22 AM
- Sony (NYSE:SNE): FQ2 EPS of ¥3.76
- Revenue of ¥1.69T (-10.6% Y/Y)
- Shares -0.3% PM.
- Press Release
Tue, Nov. 1, 5:07 AM
- Net income plunged 86% to ¥4.8B ($45.8M) from ¥33.6B in the same period last year, as the Japanese electronics giant got whacked by a stronger yen, costs from the sale of its battery business and softness in areas like games and semiconductors.
- Sony (NYSE:SNE) cash-cow imaging sensor business also took a ¥1.2B hit due to damage from the Kumamoto earthquakes that closed down one of its factories.
- SNE -0.3% premarket
Mon, Oct. 31, 5:30 PM
Mon, Oct. 31, 3:26 PM
- Tyler Perry continued to rack up scary sums as Boo! A Madea Halloween (LGF +1.6%) held the weekend's box-office crown against a disappointing home debut in Tom Hanks' Dan Brown film series.
- Inferno (SNE -0.8%), the follow-up to 2006's The Da Vinci Code and 2009's Angels & Demons, drew just $15M to finish No. 2 against Madea's $16.7M. That's well off the $77M The Da Vinci Code opened with domestically, but Inferno has already drawn $132.7M from international openings.
- Similarly, Doctor Strange -- the latest entry in the Marvel (DIS -1.2%) Cinematic Universe -- won't open in the U.S. until Friday, but drew $86M in overseas openings.
- Rounding out the top five films: Jack Reacher: Never Go Back (VIA flat, VIAB -0.3%) was No. 3 with $9.6M; The Accountant (TWX +1.2%) No. 4 with $8.48M; and Ouija: Origin of Evil (NASDAQ:CMCSA) fifth with $7.1M.
Mon, Oct. 31, 2:40 PM
- There's a growing wave of support for a legalized sports betting framework in the U.S. to take advantage of the huge market and reel in some of the money going to off-shore and illegal betting options.
- State lotteries, sports betting shops and Native American casino entities are all calling for action from Capitol Hill or on a state-by-state basis.
- Professional sports league also cooperating. "We've been supportive of legalized sports betting, and we'll continue to be supportive," says NBA Senior VP Dan Spillane. Already in the mix, a NHL expansion team is due to debut in Las Vegas next year and the NFL is trying to lure the Oakland Raiders to the region.
- Perhaps the most intriguing angle with legalized sports betting is the growing interest from tech firms in having their hands in the billions of dollars likely to flow through the U.S. betting market. ESPN reports that Microsoft (NASDAQ:MSFT) and Sony (NYSE:SNE) already have patents covering sports betting platforms, while some industry experts think a widespread mobile betting platform from a tech heavyweight is inevitable (Facebook or Google?).
- What to watch: If Congress takes the final decisive step, a number of dramatic partnerships and M&A deals between Silicon Valley and existing casino operators could start flying.
- Related stocks: OTCPK:EIHDF, OTC:BTFRF, OTC:PYGMF, OTCPK:PDYPY, OTC:WIMHF, OTCPK:WIMHY, RRR, CZR, MGM, BYD, OTC:LDBKF, OTCPK:LDBKY, OTCPK:RANKF, DUEL, DDAY, DRAFT, GDEN, NYNY, CHDN, FLL, PENN, SGMS, CNTY, OTCQB:TPCA, LVS, ERI, WYNN, ZNGA.
- Related ETF: BJK.
Mon, Oct. 31, 3:49 AM
- Sony (NYSE:SNE) is cutting its annual profit forecast due to impairment losses related to the sale of its battery business to iPhone component supplier Murata Manufacturing.
- Operating income is now expected to be ¥270B ($2.6B) in the 12 months ending March, down ¥30B from its previous forecast made in July.
- Sony will announce its first-half results and further details of its full-year outlook tomorrow.
Thu, Oct. 27, 9:47 AM
- There's some mind-blowing numbers out on e-commerce as part of the 2016 Adobe holiday season forecast.
- E-commerce sales are expected to increase 11% this year to $91.6B. Though the pace is slower than what was seen in some recent years, it still triples the overall growth rate in retail.
- Cyber Monday is set to be the largest online shopping day of all time, with $3.36B in sales anticipated.
- Large retailers are seen outpacing smaller retailers by a wide margin, 17% growth vs. 7% growth. That means more market share for Amazon (NASDAQ:AMZN), Wal-Mart (NYSE:WMT), Target (NYSE:TGT), Best (NYSE:BBY) and Staples (NASDAQ:SPLS) in comparison to chains which already have a harder time leveraging their shipping costs.
- Adobe says hot gifts this year will include virtual reality devices, Pokemon, Barbie, Lego, Hot Wheels and Frozen toys.
- A stretching out of the holiday season from early October until past Christmas could help FedEx (NYSE:FDX) and UPS (NYSE:UPS) manage the logistics more efficiently.
- Related stocks: SNE, HAS, MAT, NILE, EBAY, DIS.
- Related ETFs: IBUY, XRT.
- Full Adobe report
Tue, Oct. 25, 5:03 PM
- AT&T (T -0.4%) has revealed its "aggressive" price plan for new streaming service DirecTV Now: $35/month.
- Since AT&T is zero-rating data for its customers, that's the total price for the company's subscribers. Other customers will need to consider data needs if they're video-hungry.
- That gets users 100-plus premium channels for less than the typical cable bundle, and less than PlayStation Vue (SNE -0.9%), but in the ballpark of Sling TV (DISH +0.3%).
- CEO Randall Stephenson says the company aims to keep the price down through new advertising models.
- AT&T/Time Warner deal coverage
Tue, Oct. 18, 2:18 PM
- Sony Music Entertainment (SNE +2.1%) is promoting Rob Stringer to succeed Doug Morris as its chief executive officer, as Morris moves on to become chairman of the group.
- Those moves are effective in April. Stringer is chairman and CEO at the company's Columbia Records, the label representing Beyonce and Adele.
- Stringer has led Columbia to be the leading label by market share, Sony says.
Fri, Oct. 14, 10:28 AM
- Sony (NYSE:SNE) began selling its PlayStation VR unit this week at a pricing point ($399) below the Facebook Oculus Rift and HTC Vive. The roll-out is being closely watched to see if the product ends up as a holiday favorite.
- "Anyone who buys [a PlayStation VR unit] in the next six months already owns a PlayStation 4, so it's not necessarily going to drive that many new console sales, but it certainly extends the brand," says Digital World Research CEO P.J. McNealy.
- "New content is steadily flowing in but we have yet to see the killer app that will be necessary to make VR mainstream. We remain optimistic for VR over the long-term for both games and enterprise," notes Macquarie Capital analyst Ben Schacter.
- Estimates of VR headset sales over the next year range from 1.4M (Goldman Sachs) to below 1M, although many industry watchers say one "killer" virtual reality game could drive up demand.
- On a very positive note, GameStop's (GME) COO told TheStreet that the company is sold out of the Sony VR product in most stores.
- There's also positive reviews out from Wired and TechRadar that could help win over some consumers.
Fri, Oct. 14, 3:42 AM
- Targeting Japan and other parts of Asia, Sony's (NYSE:SNE) PlayStation unit plans to release five or six smartphone games in the year ending March 2018, its latest attempt to lure more casual gamers to its high-end gaming platform.
- Sony isn't alone. The wildly successful Pokemon Go debuted in July, and Nintendo plans to launch Super Mario Run by the end of the year.
Thu, Oct. 13, 2:28 AM
- Although sales of high-end virtual reality headsets have been slow, Sony (NYSE:SNE) will enter the market today with a cheaper product that could have a better shot at mainstream acceptance.
- Not only is the PlayStation VR, at $399, less expensive than other systems, but it is also powered by Sony's PlayStation 4 console, which is owned by tens of millions of people.
Mon, Oct. 10, 4:01 PM
- The Girl on the Train led the box office in a weekend of mostly leftovers, grossing $24.7M for Universal/DreamWorks (CMCSA +0.7%).
- That was easily good enough to surpass last week's leader, Miss Peregrine's Home for Peculiar Children (FOX +1.3%, FOXA +1.4%), which fell off 48% in its second week to draw $15M. Deepwater Horizon (LGF, SNE +0.7%) slipped another spot to third, with $11.75M.
- Rounding out the top five: remake The Magnificent Seven (NYSE:SNE), with $9.2M, and Storks (TWX +0.5%), with $8.5M.
- In longer-running milestones, Sully (NYSE:TWX) has hit $113.5M domestically in its fifth week, Suicide Squad (TWX) is still throwing spare change on a big pile ($1.1M in its 10th week for a domestic total of $322.5M), and Finding Dory (DIS; still in 207 theaters in U.S.) has hit $1B in worldwide grosses.


text:
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Lexmark All-In-One Printer X6570 16Y0700 Reviews
- Other All-In-One Printers:
- Average: 3.9
- High: 5.0
- Brand:
- Lexmark
- Model:
Read 6 Reviews
REVIEW SNAPSHOT®by PowerReviews
Reviewed by 6 customers
Comments about Lexmark All-In-One Printer X6570:
My all in one is the best thing. I does everything I want it too. It prints,scans, and faxes. It have given me much pleasure. I would recommend it to anyone. I always wanted one and finally found the one I wanted.
Great product.
Comments about Lexmark All-In-One Printer X6570:
Everytime Imake an update on my PC the drivers on this device go bonkers, it wont scan it wont print.... I have to completely u and reinstall the driver all the time,the ink isnt very cheap either, I wouldnt really recommend it... I've noticed this is an overall Lexmark issue though...
Comments about Lexmark All-In-One Printer X6570:
Lexoemark's all in one printer really is an excellent product to by especially if you work at home or are looking to open your own home business. The software is easy to install, plus you have a menu guide to place favorite photos, how many pages you have printer, fax features, and more...
Comments about Lexmark All-In-One Printer X6570:
Love that I can carry my laptop around and print without wires but....have never used any printer that needed ink cartridges as often as the Lexmark 6570. A message pops up telling you to reorder ink and will take you directly to the Lexmark order page. I think it's a scam!
Comments about Lexmark All-In-One Printer X6570:
As a normal HP user, I took a chance with the Lexmark x6570. It's a pretty hefty all-in-one, but its size is made up by its solid quality. Unlike the HPs, I found that the Lexmark was a bit more durable, with more solid pieces and seems less likely to physically break. The printer is pretty fast, it rolls out a black and white word document in about four seconds on normal print settings. The color isn't much slower - at about eight to ten seconds for a 4x6 color image. It's print quality is very good. Digital pictures look true and the warms blend nicely with the cools. The additional modes (scanner, copier, and fax) are very user friendly - the keypad interface is wonderful. The scanner is very easy to use and integrates with your computer just like your printer. The copier is simple to use, as well. The 2-sided copy is a very handy feature for copying. I love using my WiFi printer at school because i can be anywhere in my dorm (in bed, at the lounge, and even in the bathroom, as well as my desk) and as long as i'm connected to the wireless network, I can print. And if there seems to be a problem with your wireless network or you don't have a wireless network at all, there is a usb port like all other newer printers. This can also be handy because sometimes the printer has problems with wireless connectivity - which is the only drawback I have found with this all in one. And since this is the only WiFi printer I have found on the market in its class, I found this to be the best all in one I have used.
Comments about Lexmark All-In-One Printer X6570:
This is a nifty printer. It's a tremendous space saver. You don't have to have a separate printer, fax machine, scanner, and copy machine. Well, that is if you have the money:
In the matter of about one month, the color and black ink already needed to be replaced. This happened 3x. That was printing no photos, and just regular paper stuff. With previous old printers, I never had to replace the ink for at least 6 months! My family and I no longer even use the printing feature anymore. Instead we use our laser jet whose ink lasts for a year. If we used the Lexmark for all our printing, we would be paying aprox. 40 bucks a month including shipping. Not worth it, unless you don't mind spending money on it each month. However, if you hardly ever print anything, than I'm sure you'll be just fine. *Maybe. {How did I know Lexmark needed more ink? Lexmark gives you a little screen on your computer, telling you the inks almost out (or out). It then give you a nice link to a site where you can buy the ink. }*
It does print nice quality, and it does have many great features. One being that you can email pictures to someone through it. Extra quick and easy; which in that case you don't have to worry about using your ink.

subset: commoncrawl


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Prices, promotions, styles and availability may vary by store and online.
Action - Bolt Action
Caliber - .270 Win.
Barrel Length - 22"
Weight - 6.4 Lbs.
Sights - Leupold-Style Scope Bases
The most respected bolt-action rifle in the world, the Model 70 has earned the nickname, "The Rifleman's Rifle." It features a high-quality action of considerable strength, with 2 forward locking lugs and a Mauser-type non-rotating claw extractor. Unlike other rifles of the period, the Model 70 has a slot in the bolt face below the locking lug, leaving both forward locking lugs solid and stronger. This rifle features a set of Leupold-style scope bases. Its wood is in good condition and its metal and bore are in very good condition.


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Home >> Write >> People In The News >> Movies >> Stars in Drama >> Jessica Alba
Jessica Alba
Jessica Alba
Jessica Alba has been acting in film and television since she was thirteen. Now jessica alba is mostly known for her sexy jessica alba roles like the jessica alba sin city role. Jessica Alba has actually starred in only a few movies but what has made jessica alba so popular is her looks. Jessica Alba frequently tops lists of the sexiest women in the world.
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Everyone is very excited for the sin city sequel, which will again feature jessica alba. The sin city sequel is supposed to be released this year. There is no doubt that reviving her jessica alba sin city role will certainly refresh the career of Jessica Alba, of whom we heard little from in 2006 and 2007. If you want to see promotional stills of the new jessica alba sin city role, try searching a jessica alba gallery and you might be able to find jessica alba pics and jessica alba wallpaper from sin city 2. The popularity of jessica alba has grown so fast through online websites devoted to a jessica alba gallery, jessica alba pics, and jessica alba wallpaper. Jessica Alba has been voted in at the top of lists of sexiest women alive by the top international men's magazines, including Maxim and FHM. The idea of sexy jessica alba is much more popular than the idea of the actress jessica alba. There are so many features and magazine spreads on sexy jessica alba that any jessica alba gallery will be filled with sexy jessica alba pics. If you are interested specifically in jessica alba wallpaper, there is many a jessica alba gallery devoted to the very subject. Try searching for jessica alba wallpaper and you will find a lot of jessica alba wallpaper that you can download for free to your computer.
While Jessica Alba may not love being stereotyped as sexy jessica alba, her fans sure love this role and any jessica alba gallery will probably be mostly filled with scantily clad jessica alba pics. Jessica Alba is returning to the screen this year with a few more films, which are once again mostly comedies and action films. Jessica Alba appeared in the superhero movie the Fantastic Four and this year returned with a sequel, though both films failed with audiences and critics. Jessica Alba is also appearing in the new Dane Cook comedy Good Luck Chuck. Judging from Dane Cook's past performances, this film will also probably flop and do little to help the reputation of jessica alba. Jessica Alba needs to stop accepting every bad role that comes along and challenge herself if she ever wants to last as an actress and not just a pretty face.


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measure of economic openness
...take place and affect the size and growth of a national economy. The degree of openness is measured by the actual size of registered imports and exports within a national economy, also known as the Impex rate. This measure is presently used by most political economists in empirically analyzing the impact and consequences of trading on the social and economic situation of a country.


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Sanders Hand And Pediatric Therapy
When someone experiences an injury or medical condition of the upper extremity it can have a serious impact on how they function in their home and work. It can affect the way they care for their personal needs, perform their jobs and participate in athletic and exercise activities.
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November 4, 2009
(Marin County Super. Ct. No. SC157558A)
Petitioner Bruce Cerny committed a second degree murder in 1980 that was enhanced due to his use of a firearm. He was sentenced to 17 years to life in prison and has been in prison ever since. At the time of the murder, Cerny was a chronic drug abuser. He claims he has been drug free since entering prison, and there is no evidence he has abused any substance since 1981. He has regularly participated in Narcotics Anonymous since 1989, and since then he has not been disciplined for violating prison rules. He has the lowest classification score possible for a prisoner serving a life sentence and the most privileged form of prison custody allowable for his classification. He now challenges the two most recent (2007 and 2008) decisions by the California Board of Parole Hearings (the Board) to deny him parole for the 13th and 14th time since he was first eligible for parole consideration.*fn1
This case requires us to apply the standard of review articulated by the California Supreme Court in two cases, In re Lawrence (2008) 44 Cal.4th 1181 and In re Shaputis (2008) 44 Cal.4th 1241. We are to review the Board"s actions to determine whether the decisions to deny Cerny a parole date are supported by some evidence that Cerny"s release at this time will endanger public safety. (In re Lawrence, supra, at p. 1209.) We are not to engage in balancing and thereby second-guess the Board. Rather, we are required to look only for evidence of dangerousness that could support the Board"s decisions. (Ibid.) Although these standards are relatively simple and straightforward to articulate, as this case demonstrates, they are more vexing to apply.
The primary issue presented by these petitions is whether the Board properly found Cerny unsuitable for parole because his postrelease plans were indefinite. The Board"s regulations list factors the Board is to consider in hearings to determine whether a prisoner is suitable for parole. Certain factors indicate unsuitability, and others indicate suitability. Sufficient postrelease plans are listed in the Board"s regulations as a factor favoring suitability, but inadequate plans are not listed as a factor indicating an inmate is unsuitable for parole. The regulations also provide that: "Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability." (Cal. Code Regs., tit. 15, § 2402, subd. (b).) Moreover, in accord with our Supreme Court"s instruction in the Lawrence case, "the importance attached to any circumstance or combination of circumstances [tending to show suitability] in a particular case is left to the judgment of the [parole] panel." (Cal. Code Regs., tit. 15, § 2402, subd. (d).)
In light of Cerny"s extensive history of drug abuse and dependence, the Board"s concern about his uncertain plans for parole was justified. The more difficult issue presented by these petitions is whether standing alone, the absence of this factor that favors suitability can serve as a basis to deny parole. As we explain, although we would decide this case differently if so empowered, our standard of review requires that we deny these petitions because we are not empowered to engage in the kind of balancing of factors that is entrusted to the Board in the first instance.
At the time of the murder, Cerny was living in San Francisco with his girlfriend, Jerri Becker. Both were heroin users. On March 3, 1980, Becker went to purchase heroin from Daisy Rutter and the murder victim, Rickey Caponio, at their houseboat in Sausalito. Becker paid them $60. The next day Rutter and Caponio left the houseboat to procure the drug. While they were gone, Becker returned several times looking for heroin, and appeared to be very upset that she did not have it. Rutter and Caponio later returned to the houseboat and fell asleep until Barbara Paschal arrived with some heroin. While Paschal was there, Becker and Cerny arrived. Becker kicked in the door, and angrily accused Rutter of stealing her money without delivering the drugs. Rutter and Becker began to wrestle and Rutter pushed Becker out the door. At that point, Rutter noticed Cerny who had a handgun.
Rutter, Caponio, and Cerny struggled for the gun and, momentarily, Caponio and Rutter seemed to over power Cerny so that the gun was pointing at him.*fn2 Caponio threatened to shoot Cerny. Just then Rutter thought she saw Becker take out a gun and she started wrestling with Becker. When she began to wrestle with Becker, Rutter heard a gunshot and saw Caponio fall. Cerny was holding the gun. While Rutter attended to Caponio, Becker and Cerny argued with her and Paschal about the money and the heroin. Cerny suggested to Becker that they also kill Rutter, but Becker dissuaded him. Becker then threatened Rutter not to talk about the incident, and she and Cerny left the houseboat. They were apprehended on the dock before they could flee.
In July 2007, the Board denied Cerny parole, based in part, on his commitment offense. The Board determined that Cerny killed in a dispassionate manner that demonstrated an exceptionally callous disregard for human suffering, and for a trivial motive-a $60 drug deal gone bad. The Board also supported its decision with findings that Cerny had an "escalating pattern of criminal conduct in his adult life involving drug-related crimes," had "failed previous grants of probation," had an "unstable social history and prior criminality," including "polysubstance abuse with use of LSD, cocaine, alcohol, methamphetamine, heroin and marijuana," and two AWOLS from the United States Army. Cerny"s parole plans were also considered insufficient because they "do not appear to be solid or verifiable in the areas of residency or employment," despite prior recommendations that he have such verifiable plans.
The Board also noted several factors that favored parole and commended Cerny for remaining discipline free since his last hearing, for his long-term commitment to Narcotics Anonymous, and his work as a library clerk. He had positive reports from prison officials and good support from his sister. The Board did not question Cerny"s psychological evaluation which concluded that he had below average propensity for violence compared to other prison inmates and that in the community his propensity for violence was "less than that of the average citizen." The assessment was based in part on Cerny"s minimal disciplinary history since 1984 and the skills he acquired in various self-help groups such as anger management, alternative to violence, communication, and Narcotics Anonymous.
The 2008 panel which denied parole was a two-person panel, comprised of Presiding Commissioner Sandra Bryson and Deputy Commissioner Booker Welch. At the hearing, Presiding Commissioner Bryson"s rationale to deny parole was similar to that expressed by the Board in 2007. First, she relied on Cerny"s commitment offense. He used a gun, multiple victims were involved, the motivation for the crime was trivial, and despite having the opportunity to cease his activity, he did not do so. She also stated that the Board found that he displayed "precious little remorse" for his crime. In expressing his decision, Deputy Commissioner Welch said his only concern about granting parole was Cerny"s parole plans, and he said nothing of Cerny"s lack of remorse.*fn3 He described Cerny as "almost a model prisoner." Commissioner Bryson also noted that although Cerny was able to discuss the steps in Narcotics Anonymous, he could use "continuing work" so that he could more readily discuss the tools provided by that program.
The only basis for denial expressed by both commissioners was Cerny"s lack of definite parole plans. He claimed to have approximately $17,000, but provided no documentation to substantiate his claim. Similarly, there was no documentation that his son would provide Cerny the support that he claimed he would. The Board was also concerned that Cerny"s son had convictions for drug-related offenses and could possibly be an adverse influence on his father.*fn4
The "biggest issue" the 2008 Board expressed about Cerny"s future was the possibility that he would relapse into using drugs. It determined that Cerny"s reaching out to various postrelease drug rehabilitation programs was inadequate because none of them promised to provide him housing or employment. Accordingly, the Board encouraged Cerny to seek a commitment from an out-of-county relapse prevention program and to look into attending Narcotics Anonymous when released. He was denied parole for one year.
Our Supreme Court has articulated the standard we employ to review parole suitability decisions. "[B]ecause the core statutory determination entrusted to the Board and the Governor is whether the inmate poses a current threat to public safety, the standard of review properly is characterized as whether "some evidence" supports the conclusion that the inmate is unsuitable for parole because he or she currently is dangerous." (In re Lawrence, supra, 44 Cal.4that p. 1191.) Thus, we examine the record of Cerny"s parole consideration hearings to determine what, if any, evidence supports a conclusion that he is currently dangerous.
A. The Commitment Offense
In order for the immutable factor of a prisoner"s commitment offense to support a parole denial decision, the callousness, viciousness or other egregious quality of the offense must be "probative to the central issue of current dangerousness. . . ." (In re Lawrence, supra, 44 Cal.4th at p. 1221.) Here, one might dispute whether the Board could accurately characterize Cerny as having an "exceptionally callous disregard for human suffering" or whether the motive was inexplicable or very trivial. For example, in 2004, the trial judge wrote a letter to the Board challenging the district attorney"s characterization of the crime as "heinous," and instead calling it an "everyday drug transaction." But we need not decide whether the Board"s characterization of the commitment offense is supported by the evidence because, even if we are to assume the Board is correct, we can discern no evidence that the circumstances of the offense are probative of his current dangerousness.
There are no facts that tie Caponio"s murder, committed in 1980, to Cerny"s current propensity for violence 29 years later. Cerny"s involvement in this murder was largely a function of his drug abuse. For example, his 1991 psychological evaluation states, "Mr. Cerny"s addiction to heroin and barbiturates and Valium[] was a major contributing factor which predisposed him to the commitment offense." His 2006 psychiatric evaluation, the most recent before the Board"s 2007 hearing, outlines his substance abuse history: he began drinking alcohol at 17, started smoking marijuana at 19, began using heroin at 24, which escalated over time until he was approximately 32, when he used it daily. He also used cocaine, LSD, and methamphetamine. Cerny claims, however, that he has not used any drugs or alcohol since 1980 and there is no record of his abusing drugs or alcohol since shortly after he entered prison.*fn5 He has participated regularly in Narcotics Anonymous since 1989. Given the close nexus between Cerny"s history of drug abuse and the circumstances of his commitment offense, the substantial amount of intervening time during which there is no evidence that Cerny has committed any violent act or abused drugs, and his long-standing treatment for drug abuse, Cerny"s commitment offense no longer provides evidence that he is currently dangerous or that his release would unreasonably endanger the public.
B. Escalating Criminal Conduct and Failure on Previous Grants of Probation
In articulating its decision to deny Cerny parole, the 2007 Board also stated "the prisoner has no prior juvenile history, but does show an escalating pattern of criminal conduct in his adult life involving drug-related crimes. He has failed previous grants of probation and cannot be counted upon to avoid criminality at this point, has failed to profit from society"s previous attempts to correct his criminality through adult probation which he failed, as well as several county jail stays through short stays." Cerny disputes these findings and argues that consideration of his escalating criminality necessarily violates this court"s 2003 order prohibiting the Board from relying on his past marijuana-related offenses for any purpose.*fn6 We agree.
Although the probation officer"s report prepared for Cerny"s sentencing indicates that he had "no prior arrests or convictions," and the California Department of Motor Vehicle records reflected only a 1979 traffic violation for making an illegal right turn, Cerny"s criminal history is more extensive. At the 2007 hearing, Cerny acknowledged:
(1) a February 1967 charge of grand theft auto which was dismissed; (2) an October 1968 conviction for possession of a marijuana pipe; (3) an October 1969 conviction for being under the influence of drugs; (4) a 1970 conviction for contributing to the delinquency of a minor (smoking marijuana with the minor); (5) a 1972 arrest for disorderly conduct; and (6) an April 1973 conviction for operating a motor vehicle while impaired by alcohol.
We cannot tell from the record of the 2007 hearing whether the Board relied on Cerny"s "several marijuana-related misdemeanors" when it concluded that his escalating pattern of criminality indicates he would present a threat to the public if he is released. For example, Cerny"s October 1969 conviction for "being under the influence of drugs" may have been a marijuana-related conviction (and, therefore, not a legitimate basis for the Board"s decision), but the description in the transcript is inadequate to be certain.
Moreover, even if we assume that the Board only relied on crimes not involving marijuana to conclude that Cerny"s escalating pattern of criminality renders him unsuitable for release, we are unable to discern evidence that suggests his criminal history had predictive value in determining his current risk to the public. Cerny is now 63 years old. His criminal history does not demonstrate escalating violence that led up to his commitment offense as contemplated by the Board"s regulations. (See Cal. Code Regs., tit. 15, § 2402, subd. (c)(2).) Instead, all of Cerny"s crimes were committed while he was already drinking alcohol, smoking marijuana and using heroin. Cerny has stopped using drugs and alcohol and is committed to remaining abstinent. Because so much time has elapsed since those crimes were committed, Cerny"s drug abuse is inseparable from his criminal history, and his criminal history discloses no history of escalating violence; his criminal history is simply too far removed both in time and behavioral attributes to constitute reliable evidence that Cerny is currently dangerous.*fn7
C. Unstable Social History
Analysis of Cerny"s social history is also inseparable from his history of addiction and drug abuse. The 2007 Board"s denial of parole relies on Cerny"s "use of LSD, cocaine, alcohol, methamphetamine, heroin and marijuana," and his two absences without leave from the Army that "were due to [his] growing drug addiction." These facts lead the Board to conclude that Cerny"s social history is unstable and counterindicative of his suitability for parole. At the same time, the Board commended Cerny for his "long-term commitment to [Narcotics Anonymous]" and his stable relationship with his sister. The record of Cerny"s hearing also indicates that he has ongoing relationships with his son, brother, nieces and nephews, although at the time of the 2007 hearing Cerny was not in contact with his son as frequently as he had been in the past.
As we have said, there is no record of Cerny abusing any substance since 1981, and he claims that he has refrained from illicit drug use since 1980. He has regularly participated in Narcotics Anonymous since 1989. Moreover, Cerny plans to continue his treatment for drug dependence and abuse when he is paroled. As the negative factors in Cerny"s social history relied upon by the Board to deny Cerny parole were all due to his drug abuse, we cannot conclude that Cerny"s social history, in light of his abstinence, treatment and parole plans, provide evidence that he would pose a current danger to the public if released to parole.*fn8
D. Cerny's Lack of Remorse
As we stated above, in the 2008 hearing, Presiding Commissioner Bryson found that Cerny demonstrated "precious little remorse today for this crime." As part of her reasoning to deny parole, she explained to Cerny, "You have really not expressed your feelings here to this Panel as far as this crime goes. Perhaps it has to do with the number of times you"ve talked about it. I don"t know. But, in fact, your story is, in general terms what we have in the reports as happening, but, basically, a sum of the specifics have been basically glossed over." Commissioner Bryson thus faults Cerny for failing to express sufficient remorse for his crime and his failure to explain the events in sufficient detail.
But the record of the 2008 hearing shows that the facts of Cerny"s crime were incorporated by reference from his probation report, and Commissioner Bryson questioned him extensively on its details. When the deputy commissioner was given an opportunity to question Cerny about his crime, he confirmed that he had spoken with Cerny about the crime in previous hearings and asked no other questions about it. The panel never asked Cerny about his feelings over what happened or whether he harbored any regrets.
Nevertheless, the record of the 2008 hearing is not silent on whether Cerny was remorseful for his 1980 killing of Ricky Caponio. When the panel was discussing Cerny"s participation in Narcotics Anonymous with him, Cerny said the victim"s son was the person he most sought to make amends with for his wrongdoing. He also mentioned that at the time of his trial, Cerny"s ex-wife delivered an apology on his behalf to the victim"s brother. Cerny also began his closing statement to the Board with an apology to his victims.
Documentation available to the Board at the hearing also includes references to Cerny"s remorse for the tragic events of his life crime. In a psychological evaluation of Cerny conducted in 2006, he discussed an incident that occurred in the prison that reminded him of his crime and said: "A fellow in chow hall died suddenly the other day, and this reminded me of the victim as he died. This memory has stayed with me and I feel very bad. He had a son. I took a father away from that son. And not only did I mess with his family, but I hurt my family as well. I wish it would have turned out differently. I never planned or expected to kill him. I thought we would get the money back and leave." This passage from the psychological report was read into the record at Cerny"s 2007 hearing. His psychological evaluation prepared for the 2008 hearing also quotes Cerny saying "I"m very sorry. I feel badly for the victim and for his family. He had a child, and the child didn"t deserve that. No one deserves that."
In light of this record, the commissioner"s determination that Cerny showed precious little remorse for his life crime is unsupported by the evidence. We see nothing to suggest that Cerny is dismissive or cavalier when discussing it, and the record of the 2007 and 2008 hearings include several spontaneous expressions of remorse.
E. Cerny's Parole Plans
The only remaining basis that can support the Board"s decisions to deny Cerny parole is the determination that he lacks sufficient plans for release. The facts and evidence are not in dispute. The 2007 and 2008 panels concluded that Cerny"s plans did "not appear to be solid or verifiable in the areas of residency or employment." Cerny"s intended residency remains up in the air because he wants to get outpatient treatment for his drug addiction or live in a residential treatment facility when he is paroled, but he has not yet been accepted into such a program. Cerny"s employment plans are considered to be unverified because, while the Board acknowledges that he has marketable skills, he does not have a job waiting for him and has not shown what he has done to find one.
The sufficiency of a prisoner"s future plans is listed in the Board"s regulations as a factor that may indicate a prisoner"s suitability for parole. (Cal. Code Regs., tit. 15, § 2402, subd. (d)(8).) But in this case we are required to consider whether an inmate"s inability to demonstrate a suitable plan for release may be the only factor that demonstrates his unsuitability. In other words, standing alone does an uncertain plan for postrelease housing and employment demonstrate that an inmate"s parole will pose a threat to public safety?
There appears to be no real concern over Cerny"s ability to secure employment. Both the 2007 and 2008 panels stated that Cerny has marketable skills, and that is all the Board"s regulations literally require. (See Cal. Code Regs., tit. 15, § 2402, subd. (d)(8).) He had a stable job history before entering prison, and worked installing aluminum siding, remodeling, doing plumbing work, and driving a taxi. In prison he has held a variety of jobs that include work in the library, in the print shop, in the kitchen, and on the yard crew. He also worked making license plates, doing maintenance, doing woodwork, and as a building porter. He is experienced in air conditioning repair, but considers welding and sheet metal work to be his primary vocational skill. Whether Cerny will be fully employed following his release from prison depends, in part, upon the type of program he enters to continue his treatment for drug addiction.
Our assessment of the Board"s reliance on Cerny"s lack of suitable parole plans is difficult due to the responses Cerny and his sister received from various residential treatment facilities and service providers about Cerny"s possible residential placement upon his release. He presented documentation to the Board that indicates those agencies contacted on his behalf are willing to assist Cerny when he is released from prison. But none of them will save a place for him in their program unless and until Cerny secures a parole date. Cerny responded to the Board"s concerns to no avail by stating that he could live in a hotel for the time it takes him to find a residential program opportunity because he has $17,000 and his sister is willing to help him.
We are concerned that Cerny is caught in an untenable situation. He says the treatment programs he has contacted will not accept him until he has a parole date. Yet, the Board will not give Cerny a date until he is accepted into a program. As we said above, the Board cited reasons other than Cerny"s lack of suitable parole plans when it denied him parole in 2007. But in the 2008 decision, Cerny"s lack of suitable plans was the only factor both panel members relied upon to deny parole.
The Board should realistically and reasonably implement its regulations when deciding an inmate"s suitability for parole. When an inmate"s parole planning is the only factor that militates against suitability, it is difficult to see how public safety demands that the inmate be found unsuitable until he secures commitments that he cannot get in the absence of a parole date. In light of the Board"s expansive power to set conditions of parole, nothing prevents it from granting a future parole date that is conditional upon an inmate"s acceptance into a residential treatment facility or other appropriate program. (Pen. Code, §§ 3052-3053, Terhune v. Superior Court (1998) 65 Cal.App.4th 864, 874.) Doing so seems to strike the appropriate balance between the Board"s duties to protect public safety and afford prisoners realistic opportunities to secure parole.
But In re Lawrence instructs us that striking the appropriate balance is the Board"s responsibility, not ours. In this case, the Board"s concerns that Cerny could relapse into drug abuse if he is released without firm and verifiable plans to treat his addiction are valid. His intention to live in a residential treatment program was characterized by prison psychologists as "appropriate" and reflective of Cerny"s "solid insight" into his addiction. Were we empowered to direct the Board"s exercise of its discretion, we would remand this matter to require the Board to set a future parole date for Cerny that is conditional upon him finding suitable housing and treatment. But we are not.
On this record, our power of review is limited to determining whether some evidence supports the Board's action. However, if factors remain unchanged and the Board continues to deny Cerny parole in spite of his best efforts to secure a commitment of suitable housing upon his release, it may be necessary for us to act. Long before the companion decisions in Lawrence and Shaputis, our Supreme Court determined that fundamental fairness requires that prisoners be provided a written statement of definitive reasons when the Board acts to deny parole. (In re Sturm (1974) 11 Cal.3d 258.) In discussing the legal genealogy of prisoner rights in parole hearings, the court said that California law recognizes the rights of parole applicants to be free from arbitrary decisions, to secure information necessary to prepare for parole hearings, "and to something more than mere pro forma consideration. Under time-honored principles of the common law, these incidents of the parole applicant's right to "due consideration" cannot exist in any practical sense unless there also exists a remedy against their abrogation. [Citation omitted.] Hence, our prior recognition of a right to due consideration of parole applications necessarily gives rise to a concomitant right to an available remedy." (Id. at p. 268-269.)
The 2008 decision of the Board to deny Cerny parole is supported by evidence that Cerny might revert to his prior drug use and, thus, become a danger to public safety if he is released without firm, verifiable parole plans. Thus, the petitions for writs of habeas corpus are denied. Should Cerny"s case factors remain unchanged, the Board should consider setting Cerny a future parole date that allows sufficient time for him to make definite arrangements for his placement, and set appropriate conditions which Cerny must meet before his release to ensure that he enters a supervised, structured and supportive environment. (See Cal. Code Regs., tit. 15, § 2402, subd. (b).)
We concur: McGuiness, P. J., Jenkins, J.
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Mint Salsa
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- 2 large fresh tomatoes, chopped
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Travelling makes me lose weight - I wish I could do it always!
Saturday, December 04, 2010
Whenever I travel, I don't like to use time or money eating, and I generally travel by foot, bike, or public transit. This adds up to eating less (I don't eat on the bus, but do in my car) and exercising more. I lost probably 40 pounds without trying at all when I was living in Argentina for a year, mostly because of these changes.
I really think I would benefit from living in a city and working within walking or biking distance...but I love the space and freedom of living in the country! At the moment I live in a suburb...with only a couple bars in walking distance. Both of my jobs are a half-hour drive away...
But even without the easy infrastructure of city life, I can make the mental adjustments that come naturally on vacation.
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I find I'm quite the opposite, I eat more because I'm on a regular schedule when on vacation.
I just read this article in the local paper about how this guy rides his bike to work, an hour each way. I was blown by that. Maybe you could come up with a halfway point for commuting. So say, drive your car half the distance, park it and then ride your bike the rest of the way. Just a suggestion, or maybe making the bike trek to work once a week and then as you build up, maybe twice a week.
My job doesn't allow me to ride a bike to work. I deliver newspapers, and 500+ papers do not fit on a bike :) I can't wait till I get a "normal" job so I can start biking to work or at least to the train station :)
Good luck with finding a solution. I do have to say country living is so much fun and relaxing :)
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Imagine waking up in the morning, stepping out on the deck overlooking the lake, watching the ducklings trail behind Mom on their morning swim. View geese, swans, and other wildlife as you start your morning! Later walk out to the end of the dock with your pole for fishing. The lake is stocked with several species of game fish. Take a paddle boat or row boat ride and enjoy the picturesque landscape while getting you morning exercise! A great beginning to anyone's day!
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United States District Court, W.D. New York
August 12, 2014
ROY A. LUSSIER, Plaintiff,v.CAROLYN W. COLVIN, Commissioner of Social Security, [1] Defendant.
DECISION and ORDER
MICHAEL A. TELESCA, District Judge.
Plaintiff Roy A. Lussier ("Plaintiff"), who is represented by counsel, brings this action pursuant to the Social Security Act ("the Act"), seeking review of the final decision of the Commissioner of Social Security ("the Commissioner") denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). This Court has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g), 1383(c). Presently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Dkt. ##11, 14.
On August 16, 2007, Plaintiff filed applications for DIB and SSI alleging that he was disabled beginning August 14, 2007 due to HIV, strokes, back pain, and Hepatitis C. T. 155-64, 189.[2] Those applications were denied on March 20, 2008, and Plaintiff subsequently requested a hearing before an Administrative Law Judge ("ALJ"). T. 101-107. Plaintiff's hearing was conducted before ALJ Bruce R. Mazzarella on June 3, 2010. T, 31-98. Plaintiff, who was represented by counsel, testified that the primary problem interfering with his ability to work was related to his mental health. T. 42. Plaintiff's friend, Patricia Fountain, and an independent Vocational Expert ("VE") also testified at the hearing. T. 80-89, 89-98. The ALJ issued a written decision on July 21, 2010, finding that Plaintiff was not disabled. T. 11-30.
In applying the familiar five-step sequential analysis, as contained in the administrative regulations promulgated by the SSA, see 20 C.F.R. §§ 404.1520, 416.920; Lynch v. Astrue, No. 07-CV-249 , 2008 WL 3413899, at *2 (W.D.N.Y. Aug. 8, 2008) (detailing the five steps), the ALJ found Plaintiff suffered from the following severe impairments: Post-Traumatic Stress Disorder ("PTSD")/anxiety, depression, personality disorder, HIV with some limitations based upon fatigue, and chronic back discomfort, and that those impairments did not meet or equal the Listings set forth at 20 CFR 404, Subpart P, Appendix 1. T. 16-18. Because Plaintiff could not be found disabled at the third step, the ALJ proceeded to determine that Plaintiff retained the residual functional capacity ("RFC") to lift/carry 20 pounds occasionally and 10 pounds frequently; sit for an 8-hour workday with normal breaks and meal periods; and stand/or walk for an 8-hour workday with normal breaks and meal periods; and was limited to a low-contact, low-stress environment with no sun exposure. T. 18. The ALJ then found that Plaintiff could not perform his past relevant work as a case aide, telemarketer, laborer, and construction worker. T. 24-25. Relying on vocational expert testimony, the ALJ concluded that Plaintiff was not disabled as he was capable of making an adjustment to other work existing in significant numbers in the national economy.[3] T. 25.
The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on December 19, 2011. T. 1-5. Plaintiff then filed this action on February 19, 2012, seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Dkt. #1.
In his motion, Plaintiff alleges that the decision of ALJ Mazzarella is erroneous and not supported by substantial evidence contained in the record, and seeks reversal of the ALJ's decision. In the alternative, Plaintiff requests the Court to remand the action to the Commissioner for further proceedings. Pl. Mem. (Dkt. #11-1) at 15-25. The Commissioner also moves for judgment on the pleadings on grounds that the ALJ's decision is correct and is supported by substantial evidence. Comm'r Mem. (Dkt. #15) at 22-30.
For the following reasons, the Commissioner's motion is granted, and Plaintiff's motion is denied.
I. General Legal Principles
42 U.S.C. § 405(g) grants jurisdiction to district courts to hear claims based on the denial of Social Security benefits. Section 405(g) provides that the District Court "shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g) (2007). The section directs that when considering such a claim, the Court must accept the findings of fact made by the Commissioner, provided that such findings are supported by substantial evidence in the record. Substantial evidence is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales , 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB , 305 U.S. 197, 229 (1938)); see also Metro. Stevedore Co. v. Rambo , 521 U.S. 121, 149 (1997).
When determining whether the Commissioner's findings are supported by substantial evidence, the Court's task is "to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn." Brown v. Apfel , 174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler , 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam)). Section 405(g) limits the scope of the Court's review to two inquiries: determining whether the Commissioner's findings were supported by substantial evidence in the record as a whole, and whether the Commissioner's conclusions are based upon an erroneous legal standard. Green-Younger v. Barnhart , 335 F.3d 99, 105-06 (2d Cir. 2003); see also Mongeur , 722 F.2d at 1038 (finding a reviewing court does not try a benefits case de novo).
Under Rule 12(c), judgment on the pleadings may be granted where the material facts are undisputed and where judgment on the merits is possible merely by considering the contents of the pleadings. Sellers v. M.C. Floor Crafters, Inc. , 842 F.2d 639, 642 (2d Cir. 1988). A party's motion will be dismissed if, after a review of the pleadings, the Court is convinced that the party does not set out factual allegations that are "enough to raise a right to relief beyond the speculative level." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007).
II. Medical Evidence
A. Treating Physicians
The record contains extensive treatment notes from Plaintiff's primary care provider Dr. Fatai Gbadamosi from 2007 to 2010. Plaintiff was treated by Dr. Gbadamosi for a number of medical issues, primarily related to hypertension, HIV, back pain, and numbness/weakness in his left leg. Plaintiff's physical examinations yielded entirely normal results, with the exception of decreased range of motion in the left hip. T. 236-250, 295-323. 377-97, 400 Likewise, Plaintiff's viral load and CD4 numbers remained within normal ranges[4] throughout the relevant period despite occasional missed doses of his antiretroviral drugs. Id.
On October 30, 2008, Plaintiff first reported to Dr. Gbadamosi that he had anxiety, racing thoughts, and photophobia. Though he recently started taking Paxil and Valium, there was no improvement in Plaintiff's mood. Accordingly, Dr. Gbadamosi recommended that Plaintiff see a psychiatrist. T. 308-310.
In May, 2010, Dr. Gbadamosi completed a medical source statement, finding that Plaintiff's ability to understand, remember, and carry out instructions were not affected by his impairments, but that he had "marked limitations" in interacting appropriately with people/supervisors/co-workers and in responding appropriately to usual work situations or work changes. T. 374-75.
The record shows that Plaintiff sought mental health treatment at Spectrum Health Services from February to June, 2009. On March 30, Plaintiff was administered an initial psychiatric assessment, during which he complained of panic attacks, auditory hallucinations, and flashbacks. T. 404. He stated that Paxil, Wellbutrin, and Ambien afforded him little relief. Id . On examination, Plaintiff was observed to be alert, fully oriented, with depressed mood, aggressive affect, and clear thoughts. T. 405. On his termination form from Spectrum, the evaluator assessed Plaintiff's Global Assessment of Functioning ("GAF") score at 60, [5] and reported that Plaintiff had not achieved any goals and that it was likely his problems would return in the near future. T. 402.
From December, 2009 to May, 2010, Plaintiff saw Dr. Dham Gupta and associated therapists at the Niagara County Department of Mental Health ("NCDMH") for anxiety and anger issues. T. 445. Upon admission, the therapist observed that Plaintiff was agitated and very hostile ("swears a lot") with symptoms of hallucination. Id . Those issues were not present at subsequent sessions dated January 14 and 25, 2010. T. 444. Plaintiff demonstrated anxious mood in February and May, 2010. T. 439, 441. He was noted to have poor attendance at treatment sessions, which inhibited his progress. T. 439. During a May, 2010 visit, the therapist recorded Plaintiff's GAF score as 55, and recommended outpatient treatment visits. T. 439-40.
B. Consultative Examinations
Plaintiff was consultatively examined by Thomas Ryan, Ph.D., on November 17, 2007. T. 252-55. He stated that he attended school until 8th grade and obtained a GED diploma later. T. 252. He related that he had psychiatric counseling in 2004 but none since that time and had no psychiatric hospitalizations. Id . Plaintiff's history included a hospitalization for a gunshot wound in 1983, HIV - positive diagnosis, drug and alcohol abuse, and a 14-year period of incarceration for the commission various felonies. T. 253. Dr. Ryan's assessment was largely unremarkable, however he noted that Plaintiff's mood was dysthymic with poor insight and judgment. T. 254. The doctor also observed that Plaintiff "may have difficulty dealing with stress." Id.
Plaintiff also underwent a consultative examination with Dr. Harbinder Toor, an internist, in November, 2007. T. 256-60. In addition to his history of HIV and Hepatitis C, Plaintiff related to the doctor a history of lower back pain for many years with a pain level of "10" on a scale of 1-10. T. 256. He also complained of anxiety, cough, fatigue, diarrhea, night sweats, insomnia, and flu-like problems. Id . Plaintiff reported that he did not cook, clean, or do laundry, did not socialize, or play sports. He told the doctor that he bathed and dressed daily, and watched television and movies for recreation. T. 257. Plaintiff's physical examination yielded normal results, with the exception limited range of motion in his lumbar spine. T. 258. An x-ray of Plaintiff's lumbosacral spine was normal. T. 259.
Dr. H. Findley, a State Agency medical consultant, reviewed the evidence in January, 2008, and opined that Plaintiff could perform at a light to medium RFC level. T. 262. In March, 2008, Dr. C. Butensky, a State Agency psychological consultant, reviewed the medical evidence and concluded that Plaintiff had a mild restriction in the following areas: activities of daily living; maintaining social functioning; maintaining concentration, persistence, or pace; and reported no episodes of deterioration. T. 276.
III. Non-Medical Evidence
Plaintiff was 50 years-old at the time of his hearing, had completed a GED diploma and an Associate's degree, and previously worked as a telemarketer, counselor, laborer, and roofer. T. 37-41. He testified that he had to leave his job as roofer because the sun, combined with either his medication or HIV, caused lesions on his skin. T. 53-54.
Plaintiff lived alone in a house, but his close friend, Patricia, spent a good deal of time at his home. Patricia shopped and cleaned for him, and reminded him to take his medication. T. 56-59. According to Plaintiff, grocery shopping had given him panic attacks in the past. T. 58. Patricia also prepared Plaintiff's meals because he wasn't "really a good cook" and cleaned because he would not take care of the household chores otherwise. T. 56-57. Plaintiff testified that he was able to drive, go for walks, take care of his personal needs, and take care of his dog. T. 58. Patricia told the ALJ that she has to "keep track of" Plaintiff, and admitted that she had a romantic interest in him. T. 81.
Although Plaintiff complained of chronic back issues for most of his life, he testified that x-rays and MRIs had not shown anything wrong with his back. T. 48-49. He testified that strenuous activity, including mowing the lawn, exacerbated his back pain. T. 51.
Plaintiff stated that the biggest impediment to his ability to work, at the time of his hearing, was his mental health status, which included depression, PTSD, anxiety, and panic attacks as a result of being beaten and raped while in prison, and being shot during a drug transaction in 1993. T. 42, 44. He testified that he underwent therapy and medication, which helped his panic attacks, and that he had not had an episode for three or four weeks. T. 47-48, 67. Episodes could be triggered by large crowds, having to attend appointments, and loud noises. T. 58, 66-68.
The ALJ also posed four sets of hypothetical to the VE, Mr. James Phillips, regarding an individual of Plaintiff's age, work experience, and education. The first hypothetical involved an individual that could sit for 20-30 minutes at a time, stand for 20-30 minutes at a time, would not be able to alternate sitting or standing without reclining, walk up to four blocks, and lift up to 15 pounds. T. 93. The VE responded that the hypothetical individual could not perform Plaintiff's past work and could not perform work in the national economy. Id.
The second hypothetical involved an individual who could sit for an 8-hour workday with normal breaks and meals, could stand/walk for an 8-hour workday with normal breaks and meals, and lift/carry up to 20 pounds occasionally and 10 pounds frequently. The VE stated that the individual could perform Plaintiff's past work as a counselor/case aide (light level) and telemarketer (sedentary level).
The third hypothetical contained the same facts as the second, except that the individual would also be limited to low-contact work in a low-stress environment, without sun exposure. T. 94-95. The VE responded that the individual could not perform Plaintiff's past work, but could perform work as a line packer or inspector/packer. T. 95.
The fourth hypothetical involved the same facts as the third, except that the individual would have a marked limitation in working with the general public, supervisors, and co-workers. T. 96. The VE concluded that the individual could not perform any of the aforementioned jobs. Id.
Plaintiff's counsel also posed a hypothetical to the VE with the same facts as the third, except the individual would need to take frequent, unscheduled breaks. T. 97. In response, the VE stated that the individual would not be able to perform work in the national economy.
IV. The Decision of the Commissioner that Plaintiff was not disabled is supported by substantial evidence.
A. Treating Source Evidence
Plaintiff first contends that the ALJ failed to accord proper weight to Plaintiff's treating psychiatrist, Dr. Gupta. Pl. Mem. (Dkt. # 11-1) at 15-21.
Under the Commissioner's regulations, a treating physician's opinion is entitled to controlling weight, provided that it is well-supported in the record:
If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.
20 C.F.R. § 416.927(d)(2); 20 C.F.R. § 404.1527(d)(2). However, "[w]hen other substantial evidence in the record conflicts with the treating physician's opinion... that opinion will not be deemed controlling. And the less consistent that opinion is with the record as a whole, the less weight it will be given." Snell v. Apfel , 177 F.3d 128, 133 (2d Cir. 1999) (citing 20 C.F.R. § 404.1527(d)(4)).
When an ALJ refuses to assign a treating physician's opinion controlling weight, he must consider a number of factors to determine the appropriate weight to assign, including: (i) the frequency of the examination and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the treating physician's opinion; (iii) the consistency of the opinion with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other factors brought to the Social Security Administration's attention that tend to support or contradict the opinion. See 20 C.F.R. § 404.1527(c). The Second Circuit recently held that it does not require a "slavish recitation of each and every factor [provided in 20 C.F.R. § 404.1527(c)] where the ALJ's reasoning and adherence to the regulation are clear." Atwater v. Astrue, No 12-902-cv , 512 Fed.Appx. 67 (2d Cir. Feb. 21, 2013) (unpublished opinion).
Plaintiff's treating psychiatrist, Dr. Gupta at NCDMH, offered an assessment as to Plaintiff's RFC, which stated that Plaintiff has marked limitations in interacting with the public, supervisors, and co-workers, as well as marked limitations in responding appropriately to usual work situations and changes in the work setting. T. 375.
The ALJ did not give controlling weight to Dr. Gupta's opinion because it was inconsistent with both consultative psychiatric examinations, inconsistent with Plaintiff's activities of daily life, and inconsistent with Spectrum's assigned GAF score.[6] He also accorded greater weight to Dr. Ryan's opinion. T. 24.
Here, the ALJ acknowledged treatment notes indicating Plaintiff's anxiety and irritability throughout the record. Though his diagnosis of anti-personality disorder was corroborated by both Drs. Gupta and Ryan, the evidence in the record as a whole contains is inconsistent Dr. Gupta's extreme functional limitation as discussed in further detail below.
Treatment notes from various sources consistently show that he Plaintiff was cooperative, related adequately, had clear speech and goal-directed thoughts with no evidence of hallucinations, delusions, or paranoia. T. 253, 296, 333, 426. At his hearing, Plaintiff testified that his psychiatric medication helped his panic attacks. T. 67.
Dr. Gbadmaosi, Plaintiff's primary treating physician, reported similar observations: that Plaintiff was fully alert, fully oriented, and his memory, insight, and judgment were in tact. T. 304, 333, 426. Dr. Gbadmaosi opined that Plaintiff had no limitations with regard to mental functioning. T. 451.
Plaintiff also reported that he spent time with his female companion daily and that he went out to movies and dinner with friends on occasion. T. 24, 81, 75, 375. Treatment notes indicate that Plaintiff had a network of close with whom he could speak at any time. T. 426. 435.
While consultative examiner Dr. Ryan opined that Plaintiff may have difficulty with stress and decision-making, he also stated that Plaintiff could generally relate with others, was cooperative, and was cable of performing low stress work. T. 18, 253-54. Dr. Ryan's findings are consistent with Plaintiff's GAF score of 60 as provided by Spectrum, which, as applicable to Plaintiff, indicates some moderate symptoms, including occasional panic attacks, or moderate difficulty in occupational functioning such as conflicts with peers or co-workers. DSM at 34.
Dr. Butensky, who did not examine Plaintiff, reviewed the available medical evidence and concluded that Plaintiff had impairments that were not severe in the areas of affective, personality, and addiction disorders.[7] State agency psychological consultants are highly qualified experts in Social Security disability evaluation. 20 C.F.R. § 416.927(e)(2)(i). Thus, the opinions of consulting sources "may constitute substantial evidence if they are consistent with the record as a whole." Barringer v. Comm'r of Soc. Sec. , 358 F.Supp.2d 67, 79 (N.D.N.Y. 2005) (citing Mongeur v. Heckler , 722 F.2d 1033, 1040 (2d Cir. 1983); Saelee v. Chater , 94 F.3d 520, 522 (9th Cir. 1996); SSR 96-6p). Such is the case here.
Thus, because Dr. Gupta's opinions conflicted with other opinions of record, including the consultative examiners and Plaintiff's other treating sources, Spectrum Health Services and Dr. Gbadmaosi, the ALJ did not err in denying controlling weight to Plaintiff's treating psychiatrist. See Mongeur v. Heckler , 722 F.2d 1033, 1039 (2d Cir. 1983) (internal citations removed).
B. Vocational Evidence
Plaintiff next contends that the ALJ erred in not relying on the hypothetical posed to the VE incorporating Dr. Gupta's stated marked limitations of interacting appropriately with the public, supervisors, and co-workers, and responding appropriately to usual work situations and routine work changes. Pl. Mem. 21-22.
In determining Plaintiff's RFC, the ALJ evaluated the entirety of the record, including both medical and non-medical evidence, and discounted Dr. Gupta's opinion insofar as it conflicted with other substantial evidence. In doing so, the ALJ also declined to include in his hypothetical question the symptoms and limitations that he had already rejected. See, e.g., Dumas v. Schweiker , 712 F.2d 1545, 1554 (2d Cir. 1983). The Commissioner may properly rely on the testimony of a VE in response to a hypothetical posed to him regarding the availability of the jobs so long as the hypothetical is based on substantial evidence, as the Court has previously determined. See id. At 1553-54; see Discussion, supra at IV.B.
Plaintiff also challenges the ALJ's third hypothetical posed to the VE, involving a "low contact" and "low stress" work environment. T. 94-95. Specifically, he claims that "such vague terms call into question the reliability of the vocational expert's response." Pl. Reply Mem. (Dkt. #16) at 6 (citing Disque v. Astrue, Civil No. 09-685-HA, 2010 WL 3732348 (D. Or. Sept. 20, 2010)). In response to the ALJ's hypothetical, the VE testified that Plaintiff could perform work as a line packer or inspector/packer, and those jobs existed in significant numbers in the national economy. T. 95.
The fact that the ALJ resorted to the testimony of a VE is itself an acknowledgment that Plaintiff suffers from at least some nonexertional limitations. The ALJ credited the opinion of consultative examiner Dr. Ryan, who stated that Plaintiff may have difficulty dealing with stress, but that he could generally relate with others. T. 22, 254. Based on this opinion, the ALJ framed his hypothetical, and this opinion, as stated earlier, is supported by substantial evidence in the record. The record overall is consistent with Plaintiff's impairments that cause stress and anxiety symptoms; it is also consistent with the fact that Plaintiff generally presents himself well, is alert, and could perform simple tasks and follow simple instructions.
Moreover, common usage dictates that "low contact" and "low stress" mean exactly that, and it does not appear from the transcript that there was any perceived ambiguity by the VE or Plaintiff's attorney, who did not cross-examine the VE on this point. T. 91-98. See Campagna v. Barnhart, Civil No. 3:05 CV 517, 2007 WL 1020743, at *10 (D. Conn. Apr. 3, 2007) ("While plaintiff faults the ALJ for not defining' for the record what he meant by low stress' and supervised' these are terms that are used every day, and the vocational expert appears to have understood them. Plaintiff's counsel also appears to have understood the terms, for he used them himself.")
While the Court does not question that Plaintiff has PTSD/anxiety, depression, and antisocial personality disorder as the ALJ found, and that he should continue his treatment and medications, the ALJ was justified in finding that the severity of his impairments was not sufficient to preclude substantial gainful activity.
For all of the above reasons, substantial evidence in the record supports the ALJ's determination that Plaintiff could perform other work, and was not disabled.
C. Plaintiff's Credibility
Finally, Plaintiff argues that the ALJ's finding that his symptoms were "not credible to the extent that they [were] inconsistent with the above [RFC], " is insufficient to explain why Plaintiff's statements were rejected. Pl. Mem. 22-14.
To establish disability, there must be more than subjective complaints. There must be an underlying physical or mental impairment, demonstrable by medically acceptable clinical and laboratory diagnostic techniques that could reasonably be expected to produce the symptoms alleged. 20 C.F.R. § 416.929(b); accord Gallagher v. Schweiker , 697 F.2d 82, 84 (2d Cir. 1983). When a medically determinable impairment exists, objective medical evidence must be considered in determining whether disability exists, whenever such evidence is available. 20 C.F.R. § 416.929(c)(2). If the claimant's symptoms suggest a greater restriction of function than can be demonstrated by objective medical evidence alone, consideration is given to such factors as the claimant's daily activities; the location, duration, frequency and intensity of pain; precipitating and aggravating factors; the type, dosage, effectiveness, and adverse side-effects of medication; and any treatment or other measures used to relieve pain. 20 C.F.R. § 416.929(c)(3); see Social Security Ruling ("SSR") 96-7p, (July 2, 1996), 1996 WL 374186, at *7. Thus, it is well within the Commissioner's discretion to evaluate the credibility of Plaintiff's testimony and render an independent judgment in light of the medical findings and other evidence regarding the true extent of symptomatology. Mimms v. Secretary , 750 F.2d 180, 186 (2d Cir. 1984); Gernavage v. Shalala , 882 F.Supp. 1413, 1419 (S.D.N.Y. 1995).
It is true that "[i]f the ALJ decides to reject subjective testimony concerning pain and other symptoms, he must do so explicitly and with sufficient specificity to enable the Court to decide whether there are legitimate reasons for the ALJ's disbelief and whether his determination is supported by substantial evidence." Brandon v. Bowen , 666 F.Supp. 604, 608 (S.D.N.Y. 1987) (citing, inter alia, Valente v. Sec'y of HHS , 733 F.2d 1037, 1045 (2d Cir. 1984); footnote omitted).
Here, though the ALJ used the frowned-upon boilerplate language that "implies that ability to work is determined first and is then used to determine the claimant's credibility, " see Bjornson v. Astrue , 671 F.3d 640, 645 (7th Cir. 2012), he also set forth a detailed discussion of the evidence prior to reaching his conclusion that Plaintiff's statements about his activities do not support his allegations of a complete inability to work. Plaintiff reported that he walked for exercise, read, surfed the internet, watched television, drove, took care of his dog, played cards, and listened to the radio. T. 55, 206-09, 244, 254, 309, 400. He also stated that he went to the movies, went to dinner with friends, and shopped occasionally. T. 81, 209, 257. Although Plaintiff was capable of cooking his own meals, he testified that his female friend prepared his meals because he was "not really a good cook, " and could also do dishes if he had to. T. 56-57, 207. While Plaintiff stated that he missed a lot of appointments and did not like to grocery shop due to anxiety and panic attacks, the remainder of the evidence supports his ability to perform daily activities. Although one "need not be an invalid to be found disabled under Title XVI of the Social Security Act, " Murdaugh v. Sec'y of HHS , 837 F.2d 99, 102 (2d Cir. 1988), much of the assistance Plaintiff received from his friend Patricia, such as cooking and cleaning, was not due to the fact that his mental illness prevented him from performing those chores himself. As stated earlier, Patricia testified that she had a romantic interest in Plaintiff. T. 56-57, 81. It was therefore reasonable for the ALJ to conclude that Plaintiff could participate in a full range of daily activities despite his PTSD/anxiety.
The Court also rejects the argument that "in emphasizing [Plaintiff's] criminal history and prison record, ALJ Mazzarella appears to infer that [Plaintiff] is necessarily incredible." Pl. Mem. 24.
Plaintiff testified to PTSD/anxiety based on trauma from being shot during an unprosecuted drug buy and being raped and beaten while in prison. Aside from briefly discussing SSA's permanent exclusion of felony-related impairments and limited use of impairments arising in prison for Title II claims and determining that neither bar applied, the only other mention of Plaintiff's prison history was the ALJ's observation that "[t]he claimant's work record is generally poor and spotty and appears to have been affected by his criminal history and prison record. In any event, the work record does not raise any favorable inferences of an individual well motivated to work within his capabilities." T. 24. This statement is supported by Plaintiff's own hearing testimony, in which he told that ALJ that "[his] criminal background checks have kept [him] from getting jobs." T. 54. Here, the ALJ's decision does not suggest that he used Plaintiff's criminal record to undermine his credibility. To the contrary, the ALJ pointed out that Plaintiff's work history was poor and "spotty" regardless of Plaintiff's prison record. T. 24. See Schaal , 134 F.3d at 502; 20 C.F.R. § 416.929(c)(3) (ALJ may consider a claimant's poor work history in evaluating his credibility).
Accordingly, the Court finds that the ALJ's credibility determination is proper as a matter of law, and is supported by substantial evidence.
For the foregoing reasons, Plaintiff's motion for judgment on the pleadings (Dkt. #11) is denied, and the Commissioner's cross-motion for judgment on the pleadings (Dkt. #14) is granted. The Complaint is dismissed in its entirety with prejudice.
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