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Bar News - July 13, 2012


US District Court Decision Listing - June 2012

* Published

CONTRACTS
6/22/12
New Life Management & Development, Inc. v. Hillcrest Manor, Inc.
Civil No. 11-cv-23-JL, Opinion No. 2012 DNH 110

The plaintiff moved for summary judgment on its claim that the defendant owed money under the parties’ written contract for implementing certain services recommended by the plaintiff as part of its consulting work for the defendant. Granting the motion, the court ruled that (1) there was no evidence from which a rational factfinder could conclude that the parties had agreed to a mutual termination of the contract, (2) there was no dispute that the defendant had in fact implemented the services recommended by the plaintiff so as to incur liability for the payment under the contract, and (3) as a matter of law, the plaintiff’s failure to deliver other services due under the contract by a particular time was not a material breach as a matter of law, because (a) the contract specified no deadline for the delivery of those services, (b) a "reasonable time" for that to occur was not the deadline argued by the defendant, because the contract contemplated that it would take longer, and (c) in any event, the contract did not specify that time was of the essence, so any missed deadline could not amount to a material breach. 26 pages. Judge Joseph N. Laplante.


EXHAUSTION OF REMEDIES, 42 U.S.C. § 1997E(A)
06/07/12
John W. Gebo v. Robert Thyng
Civil No. 11-cv-047-JD, Opinion No. 2012 DNH 100

John Gebo who is an inmate in the New Hampshire State Prison system brought suit pursuant to 42 U.S.C. § 1983, alleging that Unit Manager Robert Thyng violated his Eighth Amendment rights by failing to protect him from other inmates. Thyng moved for summary judgment, contending that Gebo failed to exhaust his administrative remedies at the prison. A hearing was held to resolve factual issues pertaining to exhaustion. Following the hearing, the court found that Gebo’s efforts to comply with the prison’s grievance procedure were thwarted by prison officials who failed to respond to his request forms and refused to provide him an alternative means to be heard. Thyng’s motion for summary judgment was denied. 15 pages. Judge Joseph A. DiClerico, Jr.


SOCIAL SECURITY
06/07/12
Christopher R. Cote v. Michael J. Astrue, Commissioner, Social Security Administration
Civil No. 11-cv-347-JD, Opinion No. 2012 DNH 099

Cote sought judicial review of the Commissioner’s decision denying his application for social security benefits. Cote argued that the ALJ erred in finding he retained a functional capacity to do light work and failed to properly assess the record evidence. In making a finding that Cote was not disabled, the ALJ expressly relied on the opinion of a state agency consultative physician but that physician’s residual functional capacity assessment did not support the ALJ’s finding. Because substantial evidence was lacking to support the decision, the case was reversed and remanded for further administrative proceedings. 11 pages. Judge Joseph A. DiClerico, Jr.


6/7/12
George v. Michael J. Astrue, Commissioner, SSA
Case No. 11-cv-356-PB, Opinion No. 2012 DNH 097

George appealed the Commissioner’s denial of her application for disability insurance benefits. After reviewing the record, the court concluded that the ALJ impermissibly substituted his lay opinion for uncontroverted medical opinions in the record when he determined that George was not disabled. The court noted that the ALJ’s decision was even more problematic because he determined that George was not disabled at Step Two of the sequential analysis, which was designed to screen out groundless claims. Substantial evidence did not support a finding that George’s medical condition only minimally impacted her ability to work. Accordingly, the court granted George’s motion to reverse the Commissioner’s decision and remanded the case for further proceedings. 22 pages. Judge Paul J. Barbadoro.


06/07/12
Reyna Figueroa v. Michael J. Astrue, Commissioner, Social Security Administration
Civil No. 11-cv-100-PB, Opinion No. 2012 DNH 101

Reyna Figueroa sought review of the Commissioner’s decision denying her application for disability insurance benefits. On the ALJ’s analysis of the opinion of Figueroa’s treating physician, the court determined that the ALJ did not take out of context the physician’s notes that Figueroa was "doing well" and that the reasons provided for discounting the physician’s ultimate opinion, though limited, were sufficient. In regard to Figueroa’s challenge to the adequacy of the ALJ’s credibility determination, the court held that the ALJ’s determination was based on substantial evidence, and explained that Figueroa’s argument was little more than a recitation of those facts that supported her claim. The court denied Figueroa’s motion to reverse the Commissioner’s decision. 19 pages. Judge Paul J. Barbadoro.


6/7/12
Bergeron v. Michael J. Astrue, Commissioner, SSA
Case No. 11-cv-395-PB, Opinion No. 2012 DNH 102

Bergeron appealed the Commissioner’s denial of her applications for disability benefits. She argued that the ALJ made a number of errors in determining that she retained a residual functional capacity ("RFC") for sedentary work. The court affirmed the Commissioner’s decision. Substantial record evidence supported the ALJ’s RFC assessment. Although the ALJ failed to indicate that she considered the opinion of a state agency consultant, the error did not warrant a remand. Because the consultant opined that Bergeron was capable of a greater range of work activity than the ALJ assessed, the outcome of the disability determination would have been the same even if the ALJ had afforded significant weight to the opinion. Lastly, the court determined that the ALJ was justified in giving no weight to a treating physician’s opinion because his opinion as inconsistent with Bergeron’s own statements about her functional capacity and the opinion of an examining physician. 23 pages. Judge Paul J. Barbadoro.


SOCIAL SECURITY; DUTY TO DEVELOP RECORD
6/18/12
Gaudreault v. Astrue
Civil No. 11-cv-73-JL, Opinion No. 2012 DNH 108

The claimant appealed the denial of disability benefits, claiming that the administrative law judge failed to fully develop the administrative record, and, as a result, incorrectly concluded that the claimant’s mental health impairments were not severe. The Commissioner moved for an order affirming this decision. The court granted the claimant’s motion and denied the Commissioner’s motion. The court ruled that although the ALJ’s conclusion was supported by substantial evidence in the record, the ALJ failed to adequately develop that record in light of the absence of any medical records between the claimant’s alleged onset of disability in 1998 and 2003. Because the ALJ could have reached a different conclusion had the record been properly developed, the court remanded the case to the ALJ for further consideration. 20 pages. Judge Joseph N. Laplante.


SOCIAL SECURITY; EVIDENCE OF DISABILITY
6/20/12
Dubois v. Astrue
Civil No. 11-cv-263-JL, Opinion No. 2012 DNH 109

The claimant appealed the denial of disability benefits, arguing that the administrative law judge: (1) misinterpreted a note from his treating podiatrist, (2) improperly rejected his description of the disabling effects of his conditions, and (3) incorrectly concluded that he could perform his past relevant work as a telemarketer. The Commissioner moved for an order affirming this decision. The court denied the claimant’s motion and granted the Commissioner’s motion. The court ruled that the ALJ had properly viewed the note from the claimant’s podiatrist in context, rather than reading it in isolation. The court also concluded that substantial evidence supported the ALJ’s conclusions that (a) the claimant’s subjective reports of the effects of his conditions were not credible, and (b) he could perform his past relevant work as a telemarketer. 22 pages. Judge Joseph N. Laplante.


WORKER’S COMPENSATION/UNINSURED MOTORIST COVERAGE
6/7/12
Butcher v. American Economy Insurance Co.

Case No. 11-cv-306-PB, Opinion No. 2012 DNH 103Paul Butcher was injured in an automobile accident while at work. He received workers’ compensation benefits and later sought uninsured motorist coverage under his employer’s liability insurance policy. The carrier, American Economy Insurance Company ("American"), refused to cover Butcher’s claim to the extent that he had received compensation for the same losses under his employer’s workers’ compensation policy. American based its decision on two coordination of benefits provisions in its policy. Butcher sued, arguing that the provisions were unenforceable because they violated the state’s uninsured motorist and worker’s compensation statutes. His arguments turned on the New Hampshire Supreme Court’s decision in Merchants Mutual Insurance Group v. Orthopedic Professional Association, which held that New Hampshire’s uninsured motorist statute bars the enforcement of a policy provision that reduces the amount payable under an uninsured motorist policy by "[t]he amount paid and . . . [the] amounts payable . . . under any workmen’s compensation law . . . ." 124 N.H. 648, 654 (1984). Although the coordination of benefit provisions at issue in this case differed from the provision under review in Merchants in that they merely relieved American from its obligation to cover losses payable under the workers’ compensation statute, whereas the provision at issue in Merchants also reduced the amount of uninsured motorist coverage available to the insured by amounts payable as workers’ compensation, the court concluded that this distinction could not justify a different result in the present case. Both the statutory construction argument that the Merchants court found persuasive and the analogy it drew between the collateral source rule and its holding required the same result here. The court also reasoned that the legislative response to the Merchants decision further demonstrated the invalidity of the coordination of benefits provisions. The workers’ compensation statute now expressly grants the workers’ compensation carriers a statutory lien against amounts payable under an uninsured motorist policy. The legislature thus made clear that a workers’ compensation carrier’s lien rights take precedence over the rights of an uninsured motorist carrier when an insured is entitled to a recovery under both policies. Accordingly, the court granted Butcher’s motion for summary judgment. 9 pages. Judge Paul J. Barbadoro.


CIVIL MOTIONS (MISCELLANEOUS)
6/29/12
Wentworth-Douglass Hospital v. Young & Novis Professional Association, et al.
Case No. 10-cv-120-SM, Opinion No. 2012 DNH 112

Hospital brought suit against several physicians who provided pathology services under a series of contracts. After it decided not to renew their contract, the hospital says defendants copied and then deleted large amounts of data from the hospital’s computers - conduct it claims violated the Computer Fraud and Abuse Act ("CFAA"). The court disagreed, noting that the hospital had authorized defendants to have full access to the data at issue. So, even if defendants violated hospital policy by using that data inappropriately, such conduct, while redressable by other means, did not violate the CFAA. The CFAA proscribes the circumvention of computer access restrictions (e.g., computer "hacking"); it does not speak to violations of employers’ computer use policies. In other words, said the court, an employee’s (or independent contractor’s) unauthorized use, disclosure, or misappropriation of data which he or she has obtained through authorized access is not conduct governed by the CFAA. 13 pages. Judge Steven J. McAuliffe.


CIVIL RIGHTS § 1983: PRISONER
6/1/12
Bruce Brown v. Englander, et al.
Case No. 10-cv-257-SM, Opinion No. 2012 DNH 095

Plaintiff, an inmate at the New Hampshire State Prison, brought suit alleging that defendants were deliberately indifferent to his serious medical needs (severe back pain) and, accordingly, violated his Eighth Amendment rights. Defendants moved for summary judgment, asserting that because plaintiff failed to disclose a medical expert he could not show that the treatment he received was so shockingly sub-standard or cruel as to violate the Constitution. The court agreed and granted defendants’ motion for summary judgment on plaintiff’s federal constitutional claims. As to his state law claims, however, the court declined to exercise its supplemental jurisdiction and dismissed them without prejudice. 15 pages. Judge Steven J. McAuliffe.


JURISDICTION (FEDERAL QUESTION)
6/5/12
John Raynes of North Lincoln Street, LLC v. City of Keene, New Hampshire
Case No. 11-cv-579-SM, Opinion No. 2012 DNH 096

Pro se plaintiff brought claims against the City of Keene, saying it violated various constitutionally protected rights when it "inversely condemned" his property. But, the record revealed that plaintiff actually sold his property to the City - a fact that would typically preclude any claim that his property was taken without just compensation. Moreover, plaintiff failed to even allege that he had exhausted the available state process for obtaining compensation for regulatory takings - a prerequisite to pursuing his federal constitutional claims. Accordingly, the court granted the City’s motion for summary judgment as to plaintiff’s federal claims. The court declined to exercise its supplemental jurisdiction and over plaintiff’s state law claims, which were dismissed without prejudice. 5 pages. Judge Steven J. McAuliffe.


SOCIAL SECURITY
6/19/12
Dwyer v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 11-cv-374-SM, Opinion No. 2012 DNH 105

Claimant appealed the denial of her application for disability benefits, asserting that the administrative law judge erred in not addressing the occupational therapist’s finding of postural limitations. The court remanded the case for further administrative proceedings, concluding that the ALJ’s silence as to the OT’s highly probative findings made meaningful judicial review of the ALJ’s decision impossible. 18 pages. Judge Steven J. McAuliffe.

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