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Bar News - July 15, 2011


US District Court Decision Listing - May 2011 Additions and June 2011

* Published

HABEAS CORPUS
5/25/11
Giddens v. Warden, NH State Prison
Case No. 09-cv-277-SM, Opinion No. 2011 DNH 084

Following his conviction in state court of one count of kidnaping and seven counts of aggravated felonious sexual assault, petitioner sought federal habeas corpus relief. Specifically, he claimed he received constitutionally deficient representation at both the trial and appellate court level. The court denied his petition and granted the state’s motion for summary judgment, concluding that petitioner failed to demonstrate that the state supreme court resolved any of his federal constitutional claims in a way that was contrary to, or involved an unreasonable application of, federal law. 12 pages. Chief Judge Steven J. McAuliffe.


6/30/11
Fandozzi v. Warden
Case No. 10-cv-368-SM, Opinion No. 2011 DNH 104

State habeas petitioner alleged that jury’s guilty verdicts on 7 of 26 assault on a minor charges were "compromise" verdicts. The state trial judge, after conducting voir dire of jurors determined that the jury convicted petitioner only of those charges that it found, beyond a reasonable doubt, that he, and he alone committed (there was an issue regarding potential spousal involvement) the state supreme court affirmed that decision. The district court found no inconsistency with federal law, as established by the United States Supreme Court. 16 pages. Chief Judge Steven J. McAuliffe.


JURISDICTION (PERSONAL)
5/26/11
Adhesive Technologies, Inc. v. Isaberg Rapid AB
Case No. 10-cv-75-SM, Opinion No. 2011 DNH 085

New Hampshire design and manufacturing company sued Swedish company for breach of contract, fraud, and misappropriation of trade secrets. Defendant moved to dismiss the case for lack of personal jurisdiction and on forum non conveniens grounds, and for failure to state claims. The court found that defendant was subject to personal jurisdiction in New Hampshire because its contacts with the state related to the formation, performance, and breach of its contract with plaintiff, and also related to its alleged acquisition of plaintiff’s trade secrets. The court also found that the complaint plausibly alleged the existence of trade secrets, pled fraud with the specificity required by Fed. R. Civ. P. 9 (b), but failed, in part, to state a claim for breach of covenant of good faith and fair dealing. 51 pages. Chief Judge Steven J. McAuliffe.


MOTION TO DISMISS PARTY/CONTRACT
6/23/11
Milford-Bennington Railroad Co. et al. v. Pan Am Railways, et al.
Case No. 10-cv-264-PB, Opinion No. 2011 DNH 102

Milford-Bennington Railroad and its employee, Peter Leishman, sued several defendant railroads, alleging breach of contract claims based on a trackage rights agreement between the railroads. Defendants moved to dismiss Leishman as a plaintiff because he was not a party to the contract at issue, and also sought to dismiss one count of the amended complaint for failure to state a claim. The court granted the motion to dismiss because the plaintiffs conceded that Leishman was not a party to the contract and did not allege that he was a third-party beneficiary. Count IV of the amended complaint was dismissed as it merely duplicated an argument contained in Count I. 5 pages. Judge Paul Barbadoro.


PREEMPTION
6/23/11
Milford-Bennington Railroad Co. et al. v. Pan Am Railways, et al.
Case No. 10-cv-264-PB, Opinion No. 2011 DNH 101

In a breach of contract action between two railroad companies, the defendants moved to dismiss the state-law claims. Defendants argued that the claims were preempted by the Interstate Commerce Commission Termination Act of 1995, which expressly preempts state law remedies that involve "regulation of rail transportation." Plaintiffs had based their breach of contract causes of action on claimed breaches of a trackage rights agreement that allowed Pan Am to exclude Milford-Bennington employees from the track if they were found to have violated Pan Am’s internal rules, alleging that Pan Am’s interpretation of its rules was erroneous. The court determined that the state-law claims were not preempted because interpretation of a private trackage rights agreement between parties does not constitute regulation of rail transportation. 5 pages. Judge Paul Barbadoro.


SOCIAL SECURITY
6/06/11
Tammy Jean Morin v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 10-cv-159-JL, Opinion No. 2011 DNH 091

The claimant appealed the denial of disability benefits, claiming that the administrative law judge: (1) improperly relied on the residual functional capacity assessments of two non-treating physicians and gave less weight to the opinion of her treating physician, (2) misinterpreted a notation in her medical records that her multiple sclerosis was "stable," and (3) did not properly consider her fatigue and its effect on her daily activity. The Commissioner moved for an order affirming his decision. The court denied the claimant’s motion and granted the Commissioner’s motion. The court concluded that, based on the record, the administrative law judge properly considered the medical source statements of both treating and non-treating physicians. The administrative law judge did not ignore, improperly weigh, or fail to give "good reasons" for the weight assigned to those opinions. The court also concluded that, viewed in the context of the record as a whole, the administrative law judge gave appropriate meaning to the term "stable" to determine the claimant’s functional abilities. The court also concluded that the administrative law judge properly considered the claimant’s allegation of disabling fatigue when he determined that the claimant was capable of light duty work. 28 pages. Judge Joseph N. Laplante.


6/7/11
Maio v. Astrue, Commissioner of Social Security Administration
Case No. 10-cv-235-JL, Opinion No. 2011 DNH 092

In an appeal from the denial of Social Security disability benefits, both the claimant and the Social Security Administration (SSA) moved for judgment in their favor. The court granted judgment to the claimant, reversing and remanding the SSA’s decision in light of Johnson v. Astrue, 597 F.3d 409 (1st Cir. 2009), which held that it was error in a fibromyalgia case for the SSA to reject a treating provider’s assessment of disability based on the lack of "objective evidence" to support it. The same error had occurred in the decision under review. 12 pages. Judge Joseph N. Laplante.


6/15/11
Lisa M. Mills v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 10-cv-279-JL, Opinion No. 2011 DNH 097

The claimant appealed a decision by an Administrative Law Judge of the Social Security Administration granting her claim for supplemental security income but denying her claim for disability insurance benefits, based on the ALJ’s finding that the claimant was disabled as of the hearing, but had not been disabled as of her date last insured. The claimant argued that the ALJ had erred in making this finding by failing to (1) consider the combined effects of her impairments, including her obesity, (2) call on a medical advisor as to the onset date of her disability, or (3) call on a vocational expert as to whether the claimant could have performed jobs existed in significant numbers in the national economy. Rejecting these arguments, and affirming the ALJ decision, the court ruled that (1) the ALJ had in fact considered the combined effect of the claimant’s impairments, including her obesity, (2) the ALJ did not need to call on a medical advisor because the evidence of the claimant’s onset date was unambiguous, and (3) the ALJ did not need to call on a medical expert because the claimant had no nonexertional impairments imposing significant limitations on the range of jobs available. 23 pages. Judge Joseph N. Laplante.


5/10/11
Mendoza v. SSA
Case No. 10-cv-357-SM, Opinion No. 2011 DNH 073

Claimant appealed the denial of his applications for both disability insurance benefits and supplemental security income, asserting that those denials were not supported by substantial evidence. The court granted claimant’s motion to remand, concluding that the ALJ failed to adequately explain his reasons for discounting the medical opinions of claimant’s treating physicians, and only discussed one of claimant’s two severe impairments. 14 pages. Chief Judge Steven J. McAuliffe.


5/20/11
Kenerson v. SSA
Case No. 10-cv-161-SM, Opinion No. 2011 DNH 074

Claimant appealed the denial of his applications for both disability insurance benefits and supplemental security income, asserting that those denials were not supported by substantial evidence. The court granted claimant’s motion to remand, concluding that the ALJ failed to adequately explain his reasons for discounting the medical opinions of claimant’s treating physician. 17 pages. Chief Judge Steven J. McAuliffe.


5/10/11
Alker v. SSA
Case No. 10-cv-291-SM, Opinion No. 2011 DNH 075

Claimant appealed the denial of her applications for both disability insurance benefits and supplemental security income, asserting that those denials were not supported by substantial evidence. The court granted claimant’s motion to remand for the Commissioner’s consideration of new evidence from claimant’s treating physician. 21 pages. Chief Judge Steven J. McAuliffe.


5/20/11
Smith v. SSA
Case No. 10-cv-366-SM, Opinion No. 2011 DNH 081

Claimant appealed the denial of her application for Social Security disability insurance benefits asserting, among other things, that when the ALJ concluded she was not disabled, the ALJ failed to adequately account for her depression. The court agreed and remanded the matter to the ALJ, so she might employ the "special technique" for evaluating the severity of mental impairments, as mandated by the Social Security regulations. 16 pages. Chief Judge Steven J. McAuliffe.


6/24/11
Guerin v. SSA
Case No. 10-cv-421-SM, Opinion No. 2011 DNH 103

While shoveling snow at work, claimant fell and severely sprained his left achilles tendon and ankle. Subsequently, he sought Social Security disability insurance benefits, asserting that his impairments rendered him disabled. His application for benefits was denied and he appealed. The court upheld the administrative denial of benefits, concluding that claimant’s impairments did not meet or equal a listed impairment, the ALJ did not err in discounting claimant’s assertions of disabling pain, and the ALJ did not err in concluding that claimant retained the ability to perform sedentary work. 20 pages. Chief Judge Steven J. McAuliffe.


6/17/11
Lawrence v. Michael J. Astrue, Comm’r, Soc. Sec. Admin.
Case No. 10-cv-183-PB, Opinion No. 2011 DNH 098

After the denial of his application for child insurance benefits and supplemental security income benefits, Plaintiff Evan Lawrence brought suit under the Social Security Act, 42 U.S.C. § 405(g), challenging the administrative law judge’s decision. Specifically, Lawrence contended that the administrative law judge: (1) improperly discounted his developmental disorder as a severe impairment, (2) failed to account for the opinion of his treating source, his mother, and the disability decision of another governmental agency, and (3) improperly relied on the Grid at step five. The court rejected these arguments, and affirmed the ALJ decision. In particular, the court held that: (1) Lawrence failed to carry his burden of proving that his pervasive developmental disorder significantly limited his ability to do basic work activities, (2) substantial evidence supported the ALJ’s decision to discount the treating source’s opinion, the opinion of Lawrence’s mother, and the governmental agency’s determination, and (3) the ALJ was justified in his reliance on the Grid. 28 Pages. Judge Paul Barbadoro.


6/21/11
Boston v. Michael J. Astrue, Comm’r, Soc. Sec. Admin.
Case No. 10-cv-250-PB, Opinion No. 2011 DNH 099

After the denial of her application for disability insurance benefits, Plaintiff Wanda Boston brought suit under the Social Security Act, 42 U.S.C. § 405(g), challenging the administrative law judge’s decision. Specifically, Boston contended that the administrative law judge: (1) failed to obtain the opinion of a psychiatrist or psychologist as required by 42 U.S.C. § 421(h), (2) failed to make findings with respect to Boston’s mental status using the special technique for mental impairments outlined in 20 C.F.R. Section 404.1520a, (3) failed to give a treating source’s opinion controlling weight, and (4) impermissibly determined that she could perform her past relevant work and/or other sedentary work. The court upheld the Commissioner’s ruling, holding that: (1) 42 U.S.C. § 421(h) was inapplicable as evidence of Boston’s counseling only arose after her "initial determination" for benefits, (2) the ALJ was not required to use the special technique for evaluating mental impairments because Boston had not adequately alleged that she suffered from a disabling mental impairment, (3) substantial evidence supported the ALJ’s decision to discount the treating source’s opinion, and (4) the ALJ carried his burden of proving that Boston could perform jobs that exist in significant numbers in the national economy. 29 Pages. Judge Paul Barbadoro.


6/10/11
Michael Connors v. Michael J. Astrue, Comm’r, Soc. Sec. Admin.
Case No. 10-CV-197-PB, Opinion No. 2011 DNH 094

Plaintiff Michael Connors sought review of the Commissioner’s denial of his application for Social Security Disability Insurance Benefits. Connors alleged that the Administrative Law Judge’s ("ALJ") determination of his Residual Functional Capacity ("RFC") was not supported by substantial evidence, and that the ALJ also failed to give appropriate weight to the medical opinion of a registered nurse regarding the scope of Connors’ injuries. The court upheld the Commissioner’s ruling after finding that the Commissioner appropriately considered all the available evidence in determining Connors’ RFC, including the opinion from the registered nurse, and that the evidence was sufficient to justify the ALJ’s determination. 25 pages. Judge Paul Barbadoro.


6/14/11
Kristina Barton v. Michael J. Astrue, Comm’r, Soc. Sec. Admin.
Case No. 10-CV-151-PB, Opinion No. 2011 DNH 095

Plaintiff Kristina Barton sought review of the Commissioner’s denial of his application for Social Security Disability Insurance Benefits. Connors alleged that the Administrative Law Judge ("ALJ") failed to adequately consider mental health limitations that were outlined in a report by a treating physician, and that this error led the ALJ to incorrectly conclude that Barton was capable of performing other work available in the national economy. The court upheld the Commissioner’s ruling because the ALJ adequately considered all of the mental health evidence in the report, and in any event additional substantial evidence existed in the record to justify the ALJ’s determination. 21 pages. Judge Paul Barbadoro.

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