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90.5 WESA Features and Special Reports
Republican Nicole Ziccarelli Challenges Democrat Jim Brewster In District Trump Won
90.5 WESA | By An-Li Herring
Courtesy of the Committee to Elect Jim Brewster and Friends of Nicole Ziccarelli
Democrat Jim Brewster (left) and Republican Nicole Ziccarelli are both running to represent the 45th Pennsylvania Senate District.
State Senator Jim Brewster, of McKeesport, is one of Allegheny County's last old-school Democrats — friendly to labor, but socially conservative — to serve in Harrisburg. And now, after his district went narrowly for President Donald Trump in 2016, the lawmaker faces a reelection challenge from first-time Republican candidate Nicole Ziccarelli, of Lower Burrell.
A win for Brewster is considered essential to enabling Democrats to flip control of the Pennsylvania legislature.
Brewster argues that his experience makes him the right choice for voters who make up the state's 45th Senate district.
"With the time I've spent in the Senate, I understand how the system works, the different kinds of grants and loans and those sorts of things that the communities need now," Brewster said.
The Democrat's district stretches from the Alle-Kiski Valley to the Mon Valley, and covers parts of Allegheny and Westmoreland counties. A native of McKeesport, Brewster first won his seat in a 2010 special election, after serving as mayor of McKeesport for six years.
But while Brewster believes his experience is the prime reason voters should re-elect him, Ziccarelli contends that the district needs change.
"And I think our current leadership has overseen decline for a number of decades, and I don't think we can ask them to bring us out of this one," Ziccarrelli said, alluding to the economic damage caused by the coronavirus crisis.
Ziccarelli is an attorney who grew up in White Oak. She noted that since the steel industry collapsed more than 30 years ago, much of the 45th District remains a shell of its former self. Empty storefronts and abandoned homes are common in some areas, and Ziccarelli said Brewster hasn't done enough to fix the problem.
"We simply can't ask him to bring us out of COVID-19 because he clearly doesn't have the answers. When I drive through McKeesport, it absolutely breaks my heart," the Republican said.
Ziccarelli was vague, however, about her own prescriptions, beyond listening to constituents' needs and avoiding new taxes. Brewster, meanwhile, countered that he has secured funding for his district's nearly 40 municipalities. And he noted that he's appealed to his fellow Democrat, Governor Tom Wolf, to ease coronavirus restrictions on bars and restaurants.
"Not just because they wanted to be open," he said. "The important thing is they had employees that don't make much money. And where are they going to go if those restaurants closed down?"
Like Ziccarelli, Brewster is friendly to the fracking industry, although he supports creating a severance tax on natural gas extraction, much like those levied in other gas-producing states. And while the candidates agree on a gradual minimum wage increase, Brewster's pro-union positions have put him at odds with business groups such as the state's Chamber of Business and Industry and the National Federation of Independent Business.
Sam Denisco, vice president of the chamber's government affairs office, predicts the race will turn in part on the 45th district's overall support for Donald Trump. He said that's one reason his organization backs Ziccarelli.
"We don't take endorsing an opponent to a three-term incumbent lightly," he said. "But we feel strongly that this particular district is a better fit for her."
While Brewster supports Joe Biden, Ziccarelli backs the president, who won the district by fewer than 900 votes in 2016. She opposes abortion rights while advocating for greater gun rights. But Brewster also takes conservative stances on those issues, and he has earned the endorsement of the staunchly pro-Second Amendment Firearms Owners Against Crime and the National Rifle Association.
The lawmaker scored big points with FOAC last year by leading a successful effort to legalize Sunday hunting, and the group has given his voting record a 76-percent rating. FOAC president Kim Stolfer said his organization wants to stick with a proven advocate.
"When you have a person that goes in office and has to stand up to the pressures of leadership and votes consistently in support of the Constitution, that gains that person extra marks for standing by their ethics and their beliefs," Stolfer said.
But with high ratings from a gun rights group and a voting record opposed to abortion rights, does Brewster risk turning off Democratic voters?
Local Democratic strategist Mike Mikus doesn't think so, partly because the stakes are high. Democrats are hoping to protect Brewster and fellow Allegheny County Democrat Pam Iovino this fall, while flipping enough districts elsewhere to turn the Senate over to Democrats. The party currently holds 21 out of 50 seats.
"If Jim Brewster's seat is lost, the chances of the Democrats taking control of the state Senate go out the window," Mikus said.
But the way Ziccarelli sees it, that prospect could be just what the district's voters want.
Politics & GovernmentLocal StoriesFeatures & Special ReportsPennsylvania state senateJim BrewsterNicole ZiccarelliElection 2020
An-Li Herring
An-Li Herring is a reporter for 90.5 WESA, with a focus on economic policy, local government, and the courts. She previously interned for NPR Legal Affairs Correspondent Nina Totenberg in Washington, DC, and the investigations team at the Pittsburgh Post-Gazette. A Pittsburgh native, An-Li completed her undergraduate studies at the University of Michigan and earned her law degree from Stanford University. She can be reached at aherring@wesa.fm.
See stories by An-Li Herring
'Seize the moment': Wolf talks about his legacy and sets table for budget speech in Pittsburgh
Chris Potter
Self-driving tech companies in Pittsburgh push for looser rules on vehicle testing
Representatives of the autonomous technology sector say their industry is poised to take off in southwestern Pennsylvania. But they say the state must first ease its restrictions on the testing of driverless vehicles.
Democrats' issue No. 1 in Pennsylvania Senate race: kill the filibuster
Marc Levy | Associated Press
Getting rid of the filibuster rule in the U.S. Senate is emerging as perhaps the most important issue in Pennsylvania's Democratic primary for an open Senate seat, as the party struggles to use its majority in Washington to advance its agenda.


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Lebedev: i could go free, future of Independent is 'very up market'
Lionel Barber handling of markets reporter dismissal criticised by tribunal
Northern and Shell in 'amicable settlement' with Katie Price over claim for breach of 'goodwill' agreement
By William Turvill Twitter
Publisher Northern and Shell has reached an "amicable settlement" with former model Katie Price after she sued the publisher for breaching a "goodwill" contract.
Price was seeking unlimited damages for libel, malicious falsehood and breach of contract before Northern and Shell agreed to pay damages and a "significant contribution" to Price's legal fees last month.
The "goodwill" agreement Price referred to was made with Northern and Shell editorial director Paul Ashford in May 2011.
According to a High Court claim form, it said: "I [Paul Ashford] will inform each of the editors that we have both worked hard to make this deal work and that I have agreed that our titles will conduct themselves with goodwill towards you and they will support your plan to raise awareness of issues facing families dealing with disability issues."
She was suing over a series of articles – and one 'reader' letter – published in Northern and Shell titles the Star magazine and OK! magazine in October 2011.
The 3 October Star magazine article, headlined 'Jordan's bizarre new obsession', suggested she had "harassed" US celebrities the Kardashian sisters by "bombarding" them with Blackberry messages.
The magazine then published a reader's letter a week later, which, according to a High Court claim form, Northern and Shell admitted was written by one of the magazine's reporters.
It said: "Had a good chuckle when I read that Jordan wants to be in the Kardashians' "gang" (issue 400). But it makes perfect sense – they all have so much in common. Just imagine all that big hair and those massive egos in one room!
"And lucky for Jordan, her real name, Katie Price, starts with a "K", too! It must be fate! It's a shame they haven't been replying to her desperate messages they probably have no idea who she is. But I'd have loved to see mum Kris Jenner cut Jordan down to size! Now that's an episode of the show I'd definitely watch."
According to Price's lawyers, Archerfield Partners LLP, the magazine admitted the letter was written by a Star reporter on behalf of the sister of a member of staff who wanted to win the prize for "letter of the week".
Despite the fact the magazine published an apology in November 2011, Price's lawyers said the original article and letter were defamatory.
Price also sued sister title OK! over an article which boasted a "world exclusive" about her relationship with rugby player Danny Cipriani.
Price's lawyers claimed the articles were false and published "maliciously".
She also said the OK! piece may have caused her "financial damage" because she could have sold an "exclusive interview" to another title.
According to the claim form, the 18 October cover story promised a "First Interview Since Going Public" with the pair and was accompanied by a "doctored" image, made up of two separate photographs.
It alleged that the quote "We fancy each other so let's make the most of it" was falsely attributed to her.
Press Gazette approached Northern and Shell for a comment on Thursday 17 January, but the company did not respond in time for a story which appeared in Press Gazette's digital edition on Friday.
Northern and Shell has now provided the following statement: "With regard to the top story on your front page, online and in your digital edition, Ms Price is not suing Star! And OK! as you have reported. The parties came to an amicable settlement and Ms Price's solicitors withdrew the claim at the end of last year."
Price's lawyers, Archerfield Partners LLP, said: "I can confirm that the claim was settled in December 2012. The Defendant has paid our client damages and made a significant contribution towards her legal costs."
Writs expose relationship between Desmond-owned titles and Katie Price's former agent
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Mag ABCs: 137 out 516 consumer mags put on circ year on year, full breakdown
Northern and Shell
Richard Desmond

redpajama_set_name: RedPajamaCommonCrawl


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Husky Basketball
Percy Allen
Scott Hanson
Husky Football
Jon Wilner/Pac-12 Hotline
UW Huskies get a new season-opening opponent in No. 2 Baylor
Seattle Times staff reporter
A few weeks ago, Mike Hopkins noted two traits needed to navigate the upcoming 2020-21 men's basketball season: flexibility and mental toughness.
The Huskies coach could have included a sense of humor and a calendar considering the numerous scheduling changes due to the coronavirus pandemic.
The games haven't started for Washington, but it's preparing to face its third season-opening opponent.
So mark this down in pencil because quite possibly anything can change in the next few days, but the Huskies are slated to start the season on Sunday in Las Vegas against … wait for it … No. 2 Baylor.
If you're keeping notes at home, the Bears are a substantial upgrade from the previous teams UW had planned to face in the season opener.
Originally, Washington was scheduled to play Tulane on Nov. 14 in China before those plans were scrapped by the Pac-12.
Then UW had to pull the plug on the Husky Classic, a four-team tournament featuring Portland State, San Diego and Cal State Fullerton that was set to tip off this week at Alaska Airlines Arena due to COVID-19 issues with the visiting teams.
The late cancellation meant Washington would have had to wait until Dec. 3 to start the season with a Pac-12 game at Utah.
Baylor was in a similar situation and desperate to find a nonconference opponent after coach Scott Drew tested positive for COVID-19 last Sunday, which led to the Bears withdrawing from this week's Empire Classic tournament in Uncasville, Connecticut.
Baylor's game versus Seton Hall on Sunday was also canceled.
Essentially, Washington replaces Seton Hall on Baylor's schedule and the game will be played at the T-Mobile Arena in Las Vegas. The time and television information is still being finalized.
Last year, the Huskies stunned then-No. 16 Baylor and handed the Bears a 67-64 defeat in Anchorage, Alaska.
By lieu of its preseason ranking, the Bears are a national championship contender led by player of the year candidate Jared Butler.
Baylor returns four starters and six of its top eight scorers from a team that finished 26-4 last season and was on track for a No. 1 seed in the NCAA tournament before the season was canceled.
Butler, a junior guard who averaged 16.0 points last season, senior guard MaCio Teague (13.9 ppg.) and junior guard Davion Mitchell (9.9) comprise one of best backcourts in the country.
Still, it remains to be seen if Baylor opens the season with Drew, who is still in quarantine. Baylor assistant Jerome Tang will reportedly coach Sunday's game.
Since Hopkins' arrival in 2017, Washington is 4-7 against ranked teams.
The Huskies were picked ninth in the Pac-12 preseason media poll. UW returns three starters (point guard Quade Green, guard Jamal Bey and forward Hameir Wright) from a team that finished 15-17 last season as was last in the Pac-12 at 5-13.
The Huskies revamped the backcourt with a trio of transfers including Erik Stevenson, Cole Bajema and Nate Pryor.
Percy Allen: pallen@seattletimes.com; on Twitter: @percyallen206. Seattle Times staff reporter Percy Allen covers the Washington Huskies and Seattle Storm.
College football recruiting has changed, and 'it's getting worse' for high-school prospects


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In today's politically charged climate, Jade Music is...
Home :: Audio CD :: Sagaloblebi - Georgian Chant Music :: Reviews
Sagaloblebi - Georgian Chant Music
[Audio CD]
In today's politically charged climate, Jade Music is releasing Sacred Georgian Chants, an album of chants from the war-torn region. The music reflects the vigor and beauty of polyphonic chants from one of the oldest Christian countries.
Georgian religious choir chant achieved its zenith in the 10th and 11th centuries. Chant techniques were developed and chant codified. It spread to Georgian monasteries in foreign lands such as Palestine, Bulgaria, and the Sinai desert. The Georgian Harmony Choir was founded in 2006 by Nana Peradze. Its members are passionate amateurs and professionals from Georgia. Its vocation is to raise the awareness of religious and popular
Georgian chant following tradition and authenticity. The Choir has performed in Belgrade (Serbia), Tbilisi (Georgia), and Paris.
Nana Peradze was born in 1968 into a religious family in Georgia. She received a chant and piano education and pursued theological studies. Since 1984, she has actively taken part in the religious rebirth of Georgia under communism, creating choirs in several monasteries and churches. From 1994 to 1997 she taught music in several religious schools and was the head of the choir at the Church St. Peter-And-Paul in Tbilisi.
In 1998 she went to France to follow choir conducting studies at the national conservatory of Paris. She then created the religious choir of the Georgian church in Paris before becoming the head conductor of the Choir Saint Symeon at the Serbian cathedral of Saint Sava in Paris in 2002. Liner notes by Georgian expert Dr. Jean-Claude Larchet.
Date Added: 08/02/2013 by Jean
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Are you homesick for the old Metalix website? Never fear; view it here!
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An Ottawa native who founded a popular fitness boot camp across Ontario brought the program to his hometown earlier this month.
A personal trainer to Bay Street executives in Toronto, Roger Nahas first saw the need for these camps when he was working at the gym.
"Most people were kind of disillusioned with the gym," said Nahas.
"Machines aren't really that appealing, and a lot of people don't know how to use them.
He started the Best Body Bootcamp in Toronto. When he brought the camp to Ottawa earlier this month, the demand was so high that the 32-year-old is planning to expand to seven locations in Ottawa at the end of the month.
With interval and cardio training, resistance work and even games of tag, boot camps, which have enjoyed enormous popularity in Ottawa, allow people to get the best of both worlds — they get to work out under the watchful eye of a personal trainer while enjoying the outdoors during the summer season.
"We spend our days in the office and don't see the outdoors," said Nahas.
Ottawa is ideal for boot camp, said Nahas.
"The weather is ideal and Ottawa has beautiful parks. And we have a health-conscious mentality," he said.


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Good luck, rest of baseball: The Big Three could start 17 of 19 playoff games for Phillies
By Aaron GleemanSep 24, 2010, 3:49 PM EDT
I've already written plenty about how dangerous the Phillies will be in the postseason, including the fact that finishing with the league's best record would allow them to rely exclusively on the stud trio of Roy Halladay, Roy Oswalt, and Cole Hamels in the first round, but David Murphy of the Philadelphia Daily News takes things a step further.
Murphy broke down the potential playoff schedules and found that, if the Phillies secure the NL's top record and homefield advantage, they would be able to start The Big Three in 17 of 19 playoff games, all without using anyone on short rest.
If pushed to the limit in all three series, the Phillies would end up with six starts apiece from their No. 1 and No. 2 starters, five starts from their No. 3 starter, and just two starts from their No. 4 starter.
Halladay (2.53), Oswalt (2.80), and Hamels (2.93) all have an ERA under three, the Phillies have shut out the opponent in almost 30 percent of their combined starts, and in 74 total games with The Big Three on the mound Philadelphia is 49-25 (.662), including 29-8 (.783) in the second half.
Good luck, rest of baseball. Don't forget to pack a lunch.


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"The Ultimate Guide to Internal Communications Strategy"
Free White Paper: "The Ultimate Guide to Internal Communications Strategy"
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By submitting this content request, I have legitimate interest in the content and agree that Poppulo, their partners, and the creators of any other content I have selected may contact me regarding news, products, and services that may be of interest to me.


The Boston Celtics and Steve Clifford's Charlotte Hornets meet for the fourth and final time tonight and so much is at stake that it is being called a playoff game for both teams.
Hornets coach Clifford began his coaching career at Woodland HS after his college playing days at UMaine Farmington. Now in his second season as a NBA head coach, his Hornets are 31-41 and half game behind the Celtics in the NBA east.
The Celtcs are 32-41 and that's a half game out of the 8th and final playoff spot.
The C's have eight games left after tonight, the Hornets have nine.
Perhaps most important to both teams tonight - the tiebreaker. Clifford's team has beaten the C's two of the three times so far this eason. A Charlotte win means the Hornets win a head-to-head tiebreaker. A Boston win means it is a 2-2 split.
NOTE: Live coverage of the Celts vs Hornets begins at 6:30pm on Sports Radio 92.9 The Ticket.


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Saint Joseph's Medical Center in Yonkers opens wound care center
Ernie Garcia
Saint Joseph's Medical Center in Yonkers has opened its Center for Wound Care and Hyperbaric Medicine.
The new outpatient facility offers a comprehensive approach for patients with non-healing wounds, such as those related to diabetes.
"Between five and seven million Americans experience at least one form of a non-healing wound annually and the incidence of these wounds is increasing by approximately 10 percent each year," said the center's co-medical director Dr. James Jen. "Many of these individuals suffer from wounds that refuse to heal despite conventional treatment. These wounds seldom involve a simple answer."
STATE OF HEALTH CARE: Political uncertainty, health-tech and battles over patients
The center has a team of physicians, nurses and technicians with advanced training in wound care and hyperbaric oxygen therapy, which promotes healing by increasing the level of oxygen in the tissue and improving the healing efficiency of the white blood cells.
Patients undergoing therapy have privacy in individual chambers equipped with televisions and headphones for entertainment.
HBO is also a treatment for conditions without open wounds, such as radionecrosis and osteoradionecrosis, osteomyelitis and idiopathic sudden sensorineural hearing loss.
Twitter: @ErnieJourno
More Yonkers news
PLEA: Suspect said he's guilty in fatal theater stabbing
SCHOOLS: Yonkers Board of Ed president to get $15,000 salary
POLITICS: Spano drops out of state Senate race
SIGN UP for The Y-O, reporter Ernie Garcia's Yonkers newsletter


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Ghazibayat v. Schweiker
Edwards v. Sec. of Dept. of Health Human Serv.
Over and over again the court of appeals and the district courts in this circuit have held that the expert…
Dumas v. Schweiker
First, he must show that "the claimant's impairment is of a kind that still permits certain types of…
12 Citing Cases
Full title:Nikrouz GHAZIBAYAT, Plaintiff, v. Richard S. SCHWEIKER, Secretary of…
Court:United States District Court, S.D. New York
Date published: Jan 10, 1983
554 F. Supp. 1005 (S.D.N.Y. 1983)
United States District Court, S.D. New York
No. 82 Civ. 224(MEL).
Irwin B. Silverman, Brooklyn, N.Y., for plaintiff.
John S. Martin, Jr., U.S. Atty. for the S.D.N.Y., New York City, for defendant; Jorge Guttlein, Asst. U.S. Atty., New York City, of counsel.
LASKER, District Judge.
Nikrouz Ghazibayat filed an application on July 22, 1980 for a period of disability and disability insurance benefits, Sections 216(i) and 223 of Title II of the Social Security Act ("the Act"), as amended, 42 U.S.C. § 416 and 423. Ghazibayat also filed for supplementary security income ("SSI") benefits, Section 1602 of the Act, 42 U.S.C. § 1381a, on February 20, 1981. Following initial denial and denial on reconsideration of both applications, Ghazibayat requested a hearing before an Administrative Law Judge ("ALJ") to review both determinations. The ALJ's decision denying benefits to Ghazibayat was approved by the Appeals Council, and the ALJ's decision thus became the final decision of the Secretary of Health and Human Services ("the Secretary"). Ghazibayat subsequently sought review in this Court, and both parties moved pursuant to Fed.R.Civ.Pr. 12(c) for judgment on the pleadings. We referred the motion to Honorable Leonard Bernikow, United States Magistrate, for report and recommendation. Magistrate Bernikow filed his report on October 19, 1982, concluding that the ALJ's finding that Ghazibayat is not disabled was not supported by substantial evidence, and recommending that the ALJ's determination be reversed and the case remanded to the Secretary for computation of benefits. The Secretary filed objections to Magistrate Bernikow's report and requested affirmance of the Secretary's decision as represented by the ALJ's findings.
Magistrate Bernikow's report reflects a thorough consideration of the evidence presented to the ALJ, the parties' contentions, and the applicable legal standards. We agree with the Magistrate's reasoning and conclusions, and add the following comments in order to respond to the Secretary's objections. Familiarity with Magistrate Bernikow's report, included as Appendix 1 to this opinion, is assumed.
The Secretary contends that the Magistrate failed to apply correct standards in evaluating the ALJ's findings. In particular, the Secretary takes issue with the Magistrate's allocation of the burdens of proof, and with his failure to discuss each of the five sequential steps which, pursuant to regulations promulgated by the Secretary in 1980, are applicable in evaluating disability claims, see 20 C.F.R. §§ 404.1520, 416.920 (1982). These contentions are unpersuasive. The Magistrate noted that once the claimant has met his burden under 42 U.S.C. § 423(d) of showing that his physical impairment is severe enough to preclude a return to his former employment, the burden shifts to the Secretary to show the existence of "alternative substantial gainful work" consistent with plaintiff's physical capability, age, education, experience and training. Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980). The latter burden has two requirements: first, to establish that "the claimant's impairment is of a kind that still permits certain types of activity, such as lifting or walking, necessary for other occupations, and that the claimant's experience involves skills transferable to other work;" and second, to present evidence demonstrating "the existence of specific types of jobs, available in the national economy, suitable for a claimant with these capabilities and skills." Decker v. Harris, 647 F.2d 291, 294 (2d Cir. 1981); see also Campbell v. Secretary of the Department of H.H.S., 665 F.2d 48, 53 (2d Cir. 1981), cert. granted, ___ U.S. ___, 102 S.Ct. 2956, 73 L.Ed.2d 1348 (1982).
45 Fed.Reg. 55566.
This analysis of the relative burdens of proof is correct. The five-step analysis adopted in the 1980 regulations did not supplant the standards cited by the Magistrate, as the Secretary implies, but merely provided a more detailed model for applying those standards. This five-step sequence has been summarized as follows:
The same case that the Secretary cites for the proposition that the Magistrate applied the wrong standards, Berry v. Schweiker, 675 F.2d 464 (2d Cir. 1982), cites the very standards used by the Magistrate as well. Id. at 467; see also Decker v. Harris, supra, 647 F.2d at 294.
"[1] First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. [2] If he is not, the Secretary next considers whether the claimant has a `severe impairment' which significantly limits his physical or mental ability to do basic work activities. [3] If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a `listed' impairment is unable to perform substantial gainful activity. [4] Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. [5] Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform. Under the cases previously discussed, the claimant bears the burden of proof as to the first four steps, while the Secretary must prove the final one."
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); 20 C.F.R. §§ 404.1520, 416.920 (1982). As a comparison of this five-step analysis with the analysis cited by the Magistrate shows, the Secretary's burden — that of proving that a claimant who is unable to return to his past work can perform other available work — is the same under both analyses. Since the ALJ simply focused upon this latter issue in his decision, it is clear, despite the absence of specific findings on the first four steps described above, that the ALJ answered the second inquiry of the five in the affirmative and the first, third and fourth in the negative. Although the Magistrate's focus upon whether the Secretary sustained his burden of showing Ghazibayat capable of at least sedentary work was thus appropriate, our review of the evidence shows that the ALJ's decision must also be reversed on the additional ground that Ghazibayat's impairments meet the standards set forth in Appendix 1 of the regulations (Step 3 of the five-step sequence described above), an issue which the Magistrate did not discuss. Thus, in ratifying the Magistrate's conclusion that the ALJ's decision was unsupported by substantial evidence, we address both the question of whether Ghazibayat's impairments meet the standards set forth in Appendix 1 of the regulations, and the question of whether the evidence warranted the ALJ's conclusion that Ghazibayat was capable of sedentary work.
The Secretary states in his memorandum of law that "the Secretary [the ALJ] determined that the medical evidence shows that the plaintiff's conditions are not attended by clinical findings that meet or equal in severity the relevant requirements of Part A of Appendix 1 to 20 C.F.R. part 404, Subpart P." (Memorandum in Support of Defendant's Objections at 4). This is simply incorrect. The ALJ did not specifically discuss the Appendix 1 standards in his decision.
The clear evidence that the ALJ considered Ghazibayat's impairments severe enough to prevent a return to his former work is the ALJ's use of Appendix 2 to Subpart P of 20 C.F.R. § 404, Rule 201.27 Table 1 in determining Ghazibayat's "residual functional capacity." Appendix 2 by its terms is applicable only "where an individual with a severe medically determinable physical or mental impairment(s) is not engaging in substantial gainful activity and the individual's impairment(s) prevents the performance of his or her vocationally relevant past work." Appendix 2, § 200.00.
The standards relating to Ghazibayat's claim of disability based on his back injury are set forth in Part A of Appendix 1 to 20 C.F.R. § 404, Subpart P, § 1.05(C), which is reproduced in the margin. Although there is no need to reiterate the Magistrate's discussion of the evidence presented, a few points are emphasized below in order to respond to the Secretary's arguments. First, as the Magistrate correctly noted, the expert opinion of a claimant's treating physician is binding upon the Secretary absent substantial contradicting evidence, see Hankerson v. Harris, 636 F.2d 893, 896 (2d Cir. 1980); Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978). The findings of Drs. Claude Carmichael and Stanley Rabinowitz, upon which the ALJ relied, do not provide substantial evidence contradicting the findings of Ghazibayat's primary treating physician, Dr. Carl Rothschild, and of another treating physician, Dr. David Rosenbaum. Dr. Rabinowitz, who examined Ghazibayat once at the request of the Social Security Administration, simply made no general finding as to the level of disability attributable to Ghazibayat's back condition. (Tr. 106-108). As for Dr. Carmichael, a treating physician, it is true that his report reflected some scepticism as to the amount of pain Ghazibayat was experiencing. (Tr. 115-117). However, Dr. Carmichael stated in his report that he could not provide a conclusion as to Ghazibayat's capacity for standing, walking, sitting, and similar functions. (Tr. 104). His tentative conclusion that Ghazibayat was "probably able" to perform sedentary work, but that he could not determine whether Ghazibayat's incapacity was real without a myelogram (which Dr. Carmichael never performed) does not amount to substantial evidence contradicting Dr. Rothschild's firm conclusion, based on his extended treatment of Ghazibayat over a period of more than a year, that he was totally disabled on account of a discogenic disorder. (Tr. 104, 118). Dr. Rothschild's conclusion, of course, does not stand alone in the record, but is buttressed by the opinion of Dr. Rosenbaum and by the results of various clinical tests performed by several different doctors (Tr. 119, 126, 129, 132-33).
"1.05 Disorders of the spine
(C) Other vertebrogenic disorders (e.g., herniated nucleus pulposus, spinal stenosis) with the following persisting for at least 3 months despite prescribed therapy and expected to last 12 months. With both I and 2:
1. Pain, muscle spasm, and significant limitation of motion in the spine; and
2. Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss."
His finding that walking, standing and climbing were "not impaired" related only to whether hip pain was causing an impairment of those activities (Tr. 108). As to the back disorder, he did find "loss of motion associated with pain," as well as "evidence of nerve root irritation and mild decreased strength in the left lower extremity," noting that "reflexes remain intact." (Tr. 107).
Despite this scepticism, however, Dr. Carmichael's findings as to the medical basis of Ghazibayat's back condition generally accorded with Dr. Rothschild's findings; he diagnosed back pain associated with a "probable L4-5" disc disorder. (Tr. 117).
Dr. Rosenbaum admitted Ghazibayat to treatment for "suspected lumbosacral disc protrusion and radiculopathy" and pronounced him "completely disabled." (Tr. 129). His suspicion of a discogenic disorder was confirmed by tests conducted at his direction at the Mt. Sinai Medical Center in New York City, which showed disorder of the L5 and S1 interspaces.
As to the question whether Ghazibayat's impairment meets the standards set forth in Appendix 1, the Secretary inexplicably argues that "none of the physicians who submitted reports included in the record found that plaintiff had muscle spasms or significant motor loss with muscle weakness and sensory and reflex loss." (Memorandum in Support of Defendant's Objections at 11.) In fact, Dr. Rothschild, in a report dated July 14, 1981, noted "bilateral vertebral muscle spasms," stated that "straight leg raising is limited to 15 degrees bilaterally," and reported "considerable constriction of motion" (Tr. at 104). He reported that Ghazibayat was severely limited in his ability to sit, stand and walk, and was unable to lift, carry, bend, squat or stoop. Dr. Rothschild noted similar findings, along with muscle weakness, in another report (Tr. at 118), while Dr. Rabinowitz, the physician consulted by the SSA, noted "decreased sensation and mild decreased strength in the left lower extremity." (Tr. 107). The ALJ noted findings of muscle spasm in his opinion (Tr. 13, 14); thus, the Secretary's statement that no physicians reported such findings is clearly incorrect.
See note 5 supra.
A report of the St. Francis Hospital Medical Center in Peoria, Illinois, in addition, noted findings of scoliosis which was possibly due to muscle spasm. (Tr. 119). Dr. Carmichael reported findings of "mild spasms or paravertebral muscles" in an examination of Ghazibayat on May 19, 1981. (Tr. 115).
In sum, the evidence before the ALJ, in view of the legal requirement that a treating physician's findings cannot be rejected in the absence of substantial contradictory evidence, compelled the conclusion that Ghazibayat was disabled, on account of his back condition alone, according to the requirements of Appendix 1 of the regulations. The conclusion of disability is further supported in light of the requirement that Ghazibayat's claim be considered with reference not only to his back condition but also with regard to the evidence of "moderately severe hypertension" (Tr. 14, 130) from which he suffers, see 20 C.F.R. § 416.922 (1982); Kolodnay v. Schweiker, 680 F.2d 878 at 879-80 (2d Cir. 1982).
In Kolodnay, supra, the case was remanded to the ALJ because he had failed to consider the possible combined effect of the various ailments alleged by the claimant. In the instant case, by contrast, the ALJ noted that he had considered the claimed impairments in combination (Tr. 15). Thus, since the problem is not that the ALJ failed to make a determination, but rather that his determination was unsupported by substantial evidence, no remand is warranted.
Even if Ghazibayat's impairments did not meet the requirements of Appendix 1 of the regulations, however, reversal of the ALJ's decision would be necessary because his conclusion that Ghazibayat was capable of performing sedentary work is unsupported by substantial evidence. Since Ghazibayat established that he was unable to return to his former employment, the Secretary bore the burden of showing that Ghazibayat could perform at least sedentary work, see Decker v. Harris, supra, 647 F.2d at 294. The ALJ concluded that Ghazibayat's testimony, together with the conclusions of Dr. Carmichael and Dr. Rabinowitz, were "entirely consistent with the requirements of sedentary work" (Tr. at 15), and found that "although the claimant experiences pain, this pain is not constant, severe or disabling." (Tr. 16). As noted previously, neither Dr. Carmichael nor Dr. Rabinowitz came to definite conclusions about the level of impairment caused by Ghazibayat's back condition. Indeed, Dr. Carmichael specifically noted his inability to come to a conclusion as to Ghazibayat's functional capacities. (Tr. 117). The bland assertion that the findings of Dr. Carmichael and Dr. Rabinowitz are "consistent with" the requirements of sedentary work simply glosses over the lack of specific findings by these physicians on the issue.
Moreover, the ALJ's statement that Ghazibayat's testimony was also consistent with the requirements for sedentary work is entirely unsupported. Ghazibayat testified that he could not sit or stand for more than a few minutes at a time, could not walk more than a few blocks, was unable to take public transportation, and had to spend most of each day lying on the couch (Tr. 48, 49, 52, 54). He stated that he had ceased performing any household chores or engaging in any activities, including going to church, because of his back pain. (Tr. 56-58, 61). Ghazibayat's specific testimony on his work capabilities was as follows:
[by ALJ]
"Q. Have you looked for a job in the past year?
A. I couldn't. I can't work, sir, so how —
Q. Why can't you do your former job as a manager in a restaurant or a taxi driver?
A. I can't even sit for five minutes, sir, how can I —
Q. Do you think you could do a job where you could sit or stand for 6 to 8 hours a day?
A. I can't even sit for five minutes, sir.
Q. How about working on objects on a table in front of you. Do you think you could work on small objects on a table in front of you?
A. I can't sit, sir.
Q. Could you do a job if you didn't have to lift more than five pounds?
A. I can't — I have so much pain, I don't —
Q. Can you follow simple instructions, like packing a small object? Can you do that?
A. If I — I have to lie down. If I can do it there lying down, I might could [sic], cause I can move my hands alright."
(Tr. 61). Plainly, the ALJ's conclusion that Ghazibayat's testimony was consistent with the requirements of sedentary work must be rejected.
The Secretary's emphasis on the ALJ's right to make credibility determinations as to the amount of pain experienced by Ghazibayat is misplaced. The ALJ is not required to take a claimant's allegations of pain at face value. However, this is not a case where the medical evidence fails to establish a physical basis for the claimant's report of pain, cf. Gaultney v. Weinberger, 505 F.2d 943 (5th Cir. 1974), or where the claimant's report of his work and household activities is inconsistent with disabling pain, cf. Miles v. Harris, 645 F.2d 122 (2d Cir. 1981). In order to find that the Secretary met his burden of showing that Ghazibayat could perform sedentary work, the ALJ had to reject not only Ghazibayat's subjective testimony regarding the pain he experienced, but also the reports of Ghazibayat's physicians and the clinical findings of record as well, which, as discussed previously, showed a clear physical basis for the pain he described. Under these circumstances, an ALJ's right to make credibility determinations cannot by itself insulate his ultimate decision from review, particularly since the ALJ did not explicitly rest his decision on a finding that Ghazibayat's testimony was not credible, but instead simply mentioned, in a recitation of the matters he considered in reaching his decision, that he had taken Ghazibayat's credibility into account (Tr. 15).
The Secretary points out Dr. Carmichael's statement that he could not be sure to what extent the pending litigation was influencing Ghazibayat's examination responses, but that he was sure it was having "some effect." (Tr. 110). He based this statement on the fact that Ghazibayat "continually turns the conversation to the problem of this hearing" (Tr. 115). While it may be true that such conduct was having "some effect" on Ghazibayat's behavior it does not follow, of course, that because Ghazibayat was obviously concerned with the hearing, he was necessarily a malingerer. In addition, the statement in a report from the Medical and Surgical Consultation Clinic, that Ghazibayat engaged in "voluntary guarding" while being examined, does not provide proof that Ghazibayat was not experiencing pain, or that his condition was such as to permit sedentary work, a question which that report does not address. Finally, the Secretary's argument that Ghazibayat "had no trouble sleeping," even if it is a fair statement of Ghazibayat's testimony, see Tr. 46, is inconclusive at best. As discussed earlier, Ghazibayat's testimony was quite consistent on the fact that he was comfortable only when lying down; thus, his failure to report great difficulty sleeping cannot fairly be taken to contradict his report of disabling pain in connection with other activities.
Finally, the Secretary places great weight on the ALJ's finding that Ghazibayat's pain is relieved for "up to five hours" by medication. Of course, an impairment that is remediable by treatment cannot be considered disabling. See Coleman v. Califano, 462 F. Supp. 77 (N.D.N.Y. 1978). However, in the context of this case, the Secretary's citation of this principle is inapposite. This is not a case in which the ailment upon which the disability claim is predicated can be eliminated through prescribed treatment. Cf. Coleman, supra, 462 F. Supp. at 81 (claimant failed to follow doctor's advice on weight reduction); Fields v. Secretary of Health, Education and Welfare, 444 F. Supp. 1003 (S.D.N.Y. 1977) (medication eliminated seizures which were the primary basis of the disability claim). Rather, this is a case in which the pain experienced by the claimant can be alleviated to a certain extent for a period of two to five hours at most by taking various medications. (Tr. 47). This does not provide a reasonable basis for concluding that Ghazibayat can engage in substantial gainful activity.
Because the conclusion that Ghazibayat is able to perform sedentary work as described in the regulations is unsupported by the evidence, we need not reach the issue whether a remand would be necessary under Campbell, supra, because of the ALJ's failure to identify specific jobs that he believed Ghazibayat to be capable of performing. Our holding also makes it unnecessary for us to address the question whether the additional evidence offered by Ghazibayat provides an appropriate basis for remand.
As noted earlier, the Secretary's burden of showing that a claimant who is unable to perform his past work can perform other available work has two parts — first, that of showing that the claimant's impairments are of a kind that still permit activities necessary for other occupations, and second, that of showing the existence of specific jobs available in the economy that the claimant could perform. Decker v. Harris, supra, 647 F.2d at 294, Campbell, supra at 53. The Campbell holding relates to the second part of the Secretary's burden, while our reversal of the ALJ's decision rests on the first part of that burden, along with our additional holding that the evidence showed Ghazibayat's impairments to meet the requirements set forth in Appendix 1 of the regulations.
The Secretary has not argued that a remand would be appropriate for additional findings on the issues upon which we do rest our decision, and under the circumstances no remand is warranted. This is not a case where there are significant "gaps" in the record which require additional evidence, cf. Echevarria v. Secretary of Health and Human Services, 685 F.2d 751 (2d Cir. 1982). Rather, the ALJ simply failed to give a reasonable construction, supported by substantial evidence, to the record before him, and the evidence of record persuasively establishes instead that Ghazibayat is entitled to benefits. See Gold v. Secretary of HEW, 463 F.2d 38, 44 (2d Cir. 1972).
For the foregoing reasons, the decision of the Secretary denying Ghazibayat disability insurance and SSI benefits is reversed, and the case remanded to the Secretary for computation of benefits.
APPENDIX REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
TO THE HONORABLE MORRIS E. LASKER, U.S.D.J.:
Plaintiff has brought this action seeking judicial review, pursuant to Section 205(g) of the Social Security Act ("the Act"), as amended, 42 U.S.C. § 405(g), of the final determination of the Secretary of the Department of Health and Human Services (hereinafter referred to as "the Secretary"), denying his application for a period of disability and disability insurance benefits under Sections 216(i) and 223 of Title II of the Act, 42 U.S.C. § 416 and 423, and supplemental security income ("SSI") under Section 1602 of the Act, 42 U.S.C. § 1381a. Both parties have moved for judgment on the pleadings pursuant to Rule 12(c), Fed.R.Civ.P. The motion was referred to me to report and recommend, by endorsement dated July 19, 1982. See 28 U.S.C. § 636(b)(1)(B).
Plaintiff filed his application for a period of disability and disability insurance benefits on July 22, 1980, alleging that he was rendered unable to work as of June 19, 1980 due to injuries to his head, back and left arm sustained in a traffic accident on that day. Tr. 64-67. The application was denied initially on August 29, 1980, tr. 68-69, and on reconsideration on March 25, 1981. Tr. 72-74. The plaintiff also filed an application for SSI benefits on February 20, 1981. Tr. 75-78. This application was initially denied on March 25, 1981, tr. 79, and on reconsideration on March 27, 1981. Tr. 80-81.
"Tr." refers to the transcript of the administrative record filed with the Secretary's answer.
On April 27, 1981 plaintiff filed a request for a hearing to review both determinations, tr. 82; the hearing was held on July 22, 1981 before an Administrative Law Judge ("ALJ"), with plaintiff represented by counsel. Tr. 25-63. While only plaintiff testified, copies of numerous medical reports were submitted as exhibits, considered by the ALJ, and incorporated into the record.
In a decision dated August 31, 1981 the ALJ found that plaintiff was not under a disability as defined in the Social Security Act and therefore was not entitled to benefits. Tr. 17. The Appeals Council denied plaintiff's request for review and approved the ALJ's decision on November 20, 1981. Tr. 4-5. Accordingly the ALJ's decision became the final decision of the Secretary. Plaintiff, having exhausted his administrative remedies, now seeks review of the Secretary's final decision.
Plaintiff was born in Iran on March 22, 1942 and came to the United States in 1971. Tr. 30. He speaks and reads English. He attended high school in Iran and received a high school equivalency diploma in New York City in approximately 1977. Tr. 32. Plaintiff also received training for nine months at RCA in television repairs, tr. 32, 35; but he did television repair work, which involved lifting television sets and removing the chassis, for only a few months. Tr. 36, 37. Then, for lack of TV jobs, he went to work driving a taxi, a more sedentary occupation, which he did for six years. Tr. 36. In 1978 he got a job as a restaurant manager at a Bagel Nosh restaurant in New York City, having previously worked at a similar job in Florida. At Bagel Nosh he did some cooking, tended the counter and cash register and took inventory. Most of the time he was on his feet, standing or walking. Tr. 36, 37. He was laid off in January 1980 and collected unemployment compensation for about three months before his accident, tr. 34, 35, in which a bus struck a car he was driving. Tr. 35.
Plaintiff stated at the hearing before the ALJ that he has constant severe pain in the lower back radiating down both legs. Tr. 44, 45, 51-53. Although he wears a back brace, tr. 45, he said that because of the pain he cannot sit for more than three or four minutes without needing to stand, cannot stand for more than ten minutes or walk more than a few blocks. Tr. 52. He cannot use public transportation but is forced to take taxis if it is necessary for him to venture any distance. Tr. 54. Plaintiff cannot climb stairs, tr. 52, 56, bend over, or lift anything weighing five pounds or more. Tr. 53. He stated that he can, however, extend his arms outward or upward, make fists, manipulate his fingers, and grasp objects without difficulty. Tr. 53-54. He also testified that he sleeps well but sometimes has to get up during the night. Tr. 46.
The plaintiff testified that he no longer drives a car, tr. 54-55, or does any household chores, tr. 56, 61, but is able to shower and shave and dress himself. Tr. 56, 59. He has stopped going to church, or to restaurants, because the pain in his back prevents him from sitting for long. Tr. 57-58. He further testified that he is only comfortable lying down and then only if he lies on his side with his legs drawn up. Tr. 48, 49. He spends most of his time reading and watching television. Tr. 60. Although one doctor recommended exercises a few times a day, he finds them too painful and no help for his condition. Tr. 51. In addition to back pain, plaintiff suffers from some dizziness, frequent headaches, tr. 44, 47, 48, an irregular heartbeat, and high blood pressure. Tr. 44, 50. All of plaintiff's complaints are relieved by medication. The medicine he takes for his back relieves the pain for up to five hours. Tr. 47. It is not clear from his testimony whether the medicine kills or lessens the pain. Id. The ALJ's Determination
The ALJ determined that plaintiff was not entitled to a period of disability, disability insurance benefits, or SSI. Tr. 17. He concluded that the "totality of [the] evidence" failed to establish that plaintiff was suffering from "pain of such severity and frequency as to prevent him from engaging in substantial gainful activity." Tr. 15.
It is not the function of a reviewing authority to make a de novo finding. Rather, the sole issue for judicial review is whether the Secretary's decision, based on the whole record, that plaintiff is not under a disability is supported by substantial evidence. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); Aubeuf v. Schweiker, 649 F.2d 107, 112 (2d Cir. 1981). Substantial evidence means "`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, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938). The evidence "`must do more than create a suspicion of the existence of the fact to be established.'" Scott v. Celebreeze, 241 F. Supp. 733, 736 (S.D.N.Y. 1965) (Feinberg, J.), quoting Rayex Corp. v. F.T.C., 317 F.2d 290, 292 (2d Cir. 1963). Hence, while the court will not substitute its judgment for that of the Secretary, neither will it act as a rubber stamp of administrative determinations. Correa v. Secretary of Health and Human Services, 501 F. Supp. 236, 237 (S.D.N.Y. 1980).
Plaintiff has the burden of proving disability. Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980). Under 42 U.S.C. § 423(d)(1)(A), disability is defined as the
This definition of disability is virtually identical to the definition used in SSI disability benefit cases under 42 U.S.C. § 1382c(3). In addition the standard for judicial review is also identical, 42 U.S.C. § 1383c(3). As a result, cases under 42 U.S.C. § 423 and 42 U.S.C. § 1382c(3) are cited interchangeably. Hankerson v. Harris, 636 F.2d 893, 897 n. 2 (2d Cir. 1980). Thus, in our case, the discussion is the same for plaintiff's claim to SSI benefits and disability claims.
inability to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.
Under (d)(2)(A) of the same section, a claimant is not disabled unless
his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he should be hired if he applied for work . . .
In assessing disability, four factors are to be considered: (1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience. Rivera v. Harris, 623 F.2d 212, 215-16 (2d Cir. 1980); Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978); Gold v. Secretary of H.E.W., 463 F.2d 38, 42 (2d Cir. 1972). With these considerations in mind, eligibility for benefits is to be determined in light of the remedial or beneficent purpose of the Act and the liberal construction that is favored in interpreting it. Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d Cir. 1975); see also Marcus v. Califano, 615 F.2d 23, 29 (2d Cir. 1979).
1. The Secretary's Burden
Plaintiff met his initial burden, required by 42 U.S.C. § 423(d), of showing, at least, that his physical impairment is serious enough to preclude a return to his previous employment as taxi driver or restaurant manager. Although the ALJ did not specifically so find, he implied as much in finding that plaintiff "has the residual functional capacity for at lease [sic] sedentary work." Tr. 16.
Once plaintiff has satisfied his initial burden of proving disability, the burden shifts to the Secretary to show the existence of "alternative substantial gainful work" commensurate with plaintiff's physical capability, age, education, experience and training. Parker v. Harris, supra, 626 F.2d at 231; Flores v. Department of H.E.W., 465 F. Supp. 317, 329 (S.D.N.Y. 1978).
Specifically, the Secretary's burden is twofold: (1) to show that plaintiff's "impairment is of a kind that still permits certain types of activity . . . necessary for other occupations, and that claimant's experience involves skills transferable to other work," and (2) "the existence of specific types of jobs, available in the national economy, suitable for a claimant with these capabilities and skills." Decker v. Harris, 647 F.2d 291, 294 (2d Cir. 1981).
Regarding the first part of the Secretary's burden, the ALJ found that plaintiff has the residual functional capacity for at least sedentary work. This determination was apparently based on the ALJ's belief that "Although the claimant experiences pain, this pain is not constant, severe or debilitating." Tr. 16. However, in view of plaintiff's own testimony and the unqualified opinions of two treating physicians, it is clear that the ALJ's finding is not supported by the record.
2. The Objective Medical Evidence
The medical evidence reviewed by the Secretary is in documentary form, comprising reports about plaintiff's condition by various specialists, four of them treating physicians. It is well settled that the expert opinion of a claimant's treating physician is binding on the Secretary unless contradicted by substantial evidence to the contrary. Hankerson v. Harris, 636 F.2d 893, 896 (2d Cir. 1980); accord, Eiden v. Secretary of H.E.W., 616 F.2d 63 (2d Cir. 1980); Alvarado v. Califano, 605 F.2d 34, 35 (2d Cir. 1979); Bastien v. Califano, supra, 572 F.2d at 921; Gold v. Secretary of H.E.W., supra, 463 F.2d at 42. However, in this case the medical evidence as a whole, including the evidence of the treating physicians themselves, is somewhat contradictory.
Dr. Carl E. Rothschild, an orthopedic specialist, treated plaintiff from June 23, 1980, four days after his accident, until at least July 21, 1981, when he diagnosed a herniated disc and pronounced plaintiff "totally disabled." His prognosis on that date was: "Will remain disabled for forseeable [sic] future." Tr. 131, Ex. 25. The prognosis confirmed his report of a year before (date unclear) in which he stated that plaintiff was not responding well to treatment and was not able to work, tr. 104, ex. 16, and a report dated February 13, 1981 in which he concluded that plaintiff suffered from a herniated disc and was permanently disabled. Tr. 118, Ex. 20. Dr. David H. Rosenbaum, a neurologist, reported on July 15, 1981, that plaintiff was under his care for suspected lumbosacral disc protrusion and radiculopathy (nerve root disease), and described plaintiff as "completely disabled." Tr. 129, Ex. 23. An electromyographic report from Mt. Sinai Medical Center to Dr. Rosenbaum dated July 20, 1981, showing bilateral L5-Sl (disc space) dysfunction, confirmed his suspicions. Tr. 132, Ex. 26.
Merck's Manual 1234 (12th ed. 1971) describes the etiology of degenerative disc disease as follows:
"The intervertebral disks, especially between the fourth and fifth lumbar vertebrae and between the fifth lumbar and sacrum, are subject to great forces and degenerative changes. When the ligaments surrounding the disk are injured and weakened, disk material begins to extrude. If this happens abruptly, the "acute low back" syndrome appears; if, instead, the disk material produces gradual but persistent pressure, the symptoms are those of the "chronic low back." Both are accompanied by back pain.
"As degenerative changes progress, with disk material protruding posteriorly into the neural canal, the true disk syndrome appears, the result of the pressure on the sciatic nerve root(s). The lesion is usually unilateral, laterally. The amount of nerve pressure may vary, depending on the size of the protrusion, local inflammation, and edema."
Dr. Hossain Awini, another treating physician, reported on July 17, 1981 that upon examination plaintiff revealed an irregular heartbeat and moderately severe hypertension. Tr. 130, Ex. 24. Although plaintiff alleges disability resulting from a combination of headaches, hypertension and back pain, it is the presence and persistence of back pain and its consequences about which there is some difference of opinion among the treating physicians and which is therefore the focus of the present inquiry.
The opinion of a fourth treating physician, Dr. Claude R. Carmichael, concurs in the diagnosis of a lower back disorder and abnormal heartbeat but departs, if tentatively, from the conclusion of total disability. Tr. 114-117, Ex. 19. Dr. Carmichael states that plaintiff is "probably able" to do sedentary work but is "[p]ossibly disabled" as to light, moderate or heavy work. Re states that without a myelogram — which was apparently not performed — he "can't know how much of plaintiff's apparent incapacity is real" or give a definite answer regarding plaintiff's ability to walk, stand, sit or lift. Dr. Carmichael describes plaintiff as an "extremely anxious man" and opines that a truly competitive work situation may not be suitable for plaintiff. Tr. 117.
In March 1981, apparently at the request of the Social Security Administration, plaintiff received a consultative examination at Midwest Medical Services in Peoria, Illinois. The report of that examination, dated March 5, is signed by Dr. Stanley Rabinowitz. Dr. Rabinowitz found plaintiff to be suffering from hypertension, chronic low back syndrome with nerve root irritation and arthralgias of both hips. His conclusion that "walking long distances, as well as standing and especially climbing is not impaired secondary to [that is, due to] hip pain," tr. 108, is reported by the AW as "walking for long distances, standing and especially climbing were not impaired." Tr. 15. It appears Dr. Rabinowitz made no general statement concerning plaintiff's impairment due to back pain. In any case, the opinion of a consulting physician should be afforded less weight than that of a treating physician. McLaughlin v. Secretary of Health and Human Services, 612 F.2d 701, 705 (2d Cir. 1980).
Arthralgia is defined as pain in the joint.
In sum, two out of four treating physicians found plaintiff to be totally incapacitated and unable to work; a third thought plaintiff might be able to do sedentary work but couldn't make a definitive evaluation without a myelogram that was apparently never done; a consultant apparently made no statement as to plaintiff's ultimate impairment or ability to work; and a fourth treating physician found plaintiff to be suffering from moderately severe hypertension. On this and other, less significant medical evidence the AW concluded, in evaluating plaintiff's allegations of pain, that his claim that he is unable to work was unpersuasive and unsupported by substantial evidence; moreover that Dr. Carmichael's and Dr. Rabinowitz's evaluations, taken together with claimant's testimony, were "entirely consistent with the requirements for sedentary work." Tr. 15.
Bearing in mind that the opinion of a treating physician is binding on the Secretary, this conclusion of the ALJ is not supported by the weight of the treating physicians' evidence.
3. The Subjective Evidence of Pain
Plaintiff's testimony was that he suffers from persistent, intense, disabling low back pain. It is settled, both in this circuit and in others, that subjective testimony as to pain is probative on the issue of disability, even if it is unsupported by positive clinical or other "objective" evidence. Echevarria v. Secretary of Health and Human Services, 685 F.2d 751 (2d Cir. 1982); Hankerson v. Harris, supra, 636 F.2d at 895; Marcus v. Califano, supra, 615 F.2d at 27; Northcutt v. Califano, 581 F.2d 164, 166-67 (8th Cir. 1978); Stark v. Weinberger, 497 F.2d 1092, 1097 (7th Cir. 1974); Sayers v. Gardner, 380 F.2d 940, 948 (6th Cir. 1967); Celebreeze v. Warren, 339 F.2d 833, 837-38 (10th Cir. 1964); Page v. Celebreeze, 311 F.2d 757, 762-63 (5th Cir. 1963).
Here there was both subjective evidence of pain and supporting objective clinical evidence, but the ALJ nevertheless rejected it — though he does not say that in so many words — in favor of a qualified medical opinion plus his own observations. "The statute puts a limitation on the court's power of review, but there is a concomitant duty on the Secretary to explicate the grounds of his decision." Vitek v. Finch, 438 F.2d 1157, 1160 (4th Cir. 1971). In evaluating plaintiff's allegations of pain, the ALJ
considered the symptoms he described, his appearance and demeanor at the hearing, his credibility regarding the constancy and extent of his pain and the limitations it imposes on his ability to function, his description of his daily activities, the medical findings and opinions and the medication prescribed.
Tr. 15 (emphasis added).
The ALJ is not bound to credit subjective evidence without question. Marcus v. Califano, supra, 615 F.2d at 27; Spicer v. Califano, 461 F. Supp. 40, 47-48 (N.D.N.Y. 1978). He "clearly has discretion to evaluate the credibility of a claimant and to arrive at an independent judgment, in light of medical findings and other evidence, regarding the true extent of the pain alleged by the claimant." Marcus v. Califano, supra, 615 F.2d at 27. However, where plaintiff's testimony of his persistent disabling pain is corroborated by the medical reports of two treating physicians, and the ALJ rejects this strong evidence in favor of insubstantial evidence ("probably able" to do sedentary work), the reasons why should not be left to speculation. If, as here, the ALJ rejects the expert opinions of two treating doctors, he must make a specific finding to that effect and must "expressly state clear and convincing reasons for doing so." Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975); accord, Cotter v. Harris, 642 F.2d 700, 706-07 (3d Cir. 1981); King v. Califano, 615 F.2d 1018, 1020 (4th Cir. 1980). More than that, if he disbelieved "plaintiff's testimony about pain, he should have said so" and why. Chiappa v. Secretary of H.E.W., 497 F. Supp. 356, 361 (S.D.N.Y. 1980). His not saying so, and his not saying anything specific except that he had considered the testimony as part of the whole record, tr. 15, "could lead to a conclusion that he neglected to consider it at all." Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974), cert. denied, 420 U.S. 931, 95 S.Ct. 1133, 43 L.Ed.2d 403 (1975). See also Rosowicz v. Secretary of Health and Human Services, 477 F. Supp. 669, 671 (W.D.N.Y. 1979).
A reviewing court must know the basis for an ALJ's decision so that it can properly exercise its responsibility under the statute. Cotter v. Harris, supra, 642 F.2d at 705; Chiappa v. Secretary of H.E.W., supra, 497 F. Supp. at 362. He has an "obligation virtually amounting to an affirmative duty" to show clearly in the record that he is aware of the Second Circuit's rules governing the opinions of treating physicians. Chiappa v. Secretary of H.E.W., supra, 497 F. Supp. at 360. Surely his obligation is no less with respect to the rules governing subjective testimony of pain. These obligations become crucial in the instant case, where the record supports the conclusion, contrary to the ALJ's finding, that plaintiff is totally disabled.
Accordingly, the Secretary's decision that plaintiff can perform sedentary work is not supported by substantial evidence. In the absence of such evidence a remand to the Secretary for an explanation of the ALJ's findings would serve no purpose. Therefore, since the Secretary has not met the first part of his burden, it is recommended that the determination of the ALJ be reversed and the matter remanded to the Secretary for the computation of benefits.
Regarding the second part of the Secretary's burden, the existence of suitable alternative employment, a remand would have been necessary in view of the Second Circuit's decision in Campbell v. Secretary of the Department of H.E.W., 665 F.2d 48, 53 (2d Cir. 1981), cert. granted, ___ U.S. ___, 102 S.Ct. 2956, 73 L.Ed.2d 1348 (1982). However, I need not reach this issue in view of my finding that the Secretary has not satisfied the first part of his burden. Conclusion
Plaintiff has submitted five new medical reports relevant to his condition. In view of my finding that the Secretary's decision should be reversed, I need not touch on this new evidence except to comment that had this case been remanded for reconsideration it might have been appropriate for the Secretary to consider the new evidence, especially the psychiatric evaluation of Dr. Paul Salkin.
The Act provides that a court may order additional evidence to be taken, "but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g) as amended June 9, 1980. Good cause is shown for the failure to incorporate Dr. Salkin's or any other psychiatrist's report in the prior proceeding. Both the level of plaintiff's education and the very nature of depression militate against plaintiff's recognizing his psychological symptoms for what they are. Moreover it appears from Dr. Salkin's report that plaintiff's psychiatric condition has been worsening.
For the foregoing reasons, it is recommended that plaintiff's motion for judgment on the pleadings be granted and the Secretary's motion be denied and that the determination of the ALJ be reversed and remanded to the Secretary for the computation of benefits.
Copies of this Report have been mailed this date to the attorneys listed below who are hereby instructed that any objections to this Report be filed in accordance with Rule 7 of the Magistrates' Rules of this Court.
Dated: New York, New York October 19, 1982
Respectfully submitted, (s) Leonard Bernikow LEONARD BERNIKOW United States Magistrate


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3 Things Agatha Christie Can Teach You About Writing
30 July, 2015 hmclarke	2 Comments
I will openly admit that I have been reading a horrendous amount of Agatha Christie of late (my own favorites being Evil under the Sun and Death on the Nile), and felt inspired to write a brief post about her career and what can be learned from it.
Agatha Christie was a master at her craft. No one can deny it. After all, she basically invented her style of close-house mysteries. Her stories have generated several world renowned and much loved literary figures such as the immaculate Hercule Poirot and the indomitable Miss Marple.
Her output was predominately Mystery/Crime fiction, but she did release six romance books under a pen name – even she grew a little tired of her genre- as her name became more synonymous with crime. I had better add successful playwright as well, I cannot forget The Mousetrap – the longest running play in the modern era. It has not closed since it initially opened in 1952.
She had a writing career spanning more than fifty five years and never during that time did she 'fall out of fashion' with her readers.
What Agatha Christie can teach authors
Fellow writers can learn a lot from people like Agatha Christie, and I am going to give three of my 'take aways' from her for a successful writing career below.
Hating your Creation – It was no secret that Agatha Christie did not like her most famous character – Hercule Poirot – I think her words to describe him were "Insufferable" and "Egocentric creep". But she kept writing him because her fans loved him, and she did not let her writing or storylines suffer because of it. She saw herself as an entertainer first, whose job was to produce what her reading public wanted – and they wanted more Poirot. Write to Entertain.
Recycling plotlines – Agatha Christie did create the close house, all suspects (still alive) together at the reveal Crime/Mystery Genre. Basically, a murder is committed, there are multiple suspects who are all concealing secrets, and the detective gradually uncovers these secrets over the course of the story, discovering the most shocking twists towards the end. At the end, in a Christie hallmark, the detective usually gathers the surviving suspects into one room, explains the course of their deductive reasoning, and reveals the guilty party. Whether you are reading Poirot, Marple or Tommy and Tuppence, the general plotline above is used. But this plotline is a very stable, well functioning framework, which, when dressed with a well woven, tightly scripted storyline makes for a good and entertaining read. Write on a well founded Framework.
Characters – What made Agatha Christie's stories stand out were her characters. Agatha would take the characteristics and mannerisms from the people she saw around her (mainly from what she observed from strangers), and give them to characters in her books. It made her characters more 'real' and would give the reader something that they can relate to. Write your characters as real people.
Agatha Christie was a very successful and well loved writer. She has over 70 books in print and even though she died in 1976, they are still selling well which is a testament to her skill as a writer and her storytelling.
NB: This article was originally published on Bookmarketingtools.com
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April Book Reads for Spring Weekends
13 April, 2015 hmclarke	Leave a comment
Hello Everyone – I hope you are all doing well?
First, a short announcement – I have started a brand new season of the Hainathan cycle, with books one and two now available on Amazon. Book one is free to those on my email list in the Explorer's area. It is set over a thousand years before the events in The Way to Freedom.
Here is my list of books to take a look at for April. I tried to aim for a bit of a mixed bag and at least for this month, I've succeeded. Finally, books that don't have a shared 'theme' 🙂
Enjoy this month's selection
-Hayley
NB:Genre's will vary each month depending on what spine catches my eye in my library when I go to chose books….Also depends on my mood, the phase of the moon, and how much sugar and caffeine is in my blood stream 🙂
Just click on the book image to check them out on Amazon.
The Cold Dish by Craig Johnson
Introducing Wyoming's Sheriff Walt Longmire in this riveting novel from the New York Times bestselling author of Hell Is Empty and As the Crow Flies, the first in the Longmire Mystery Series, the basis for LONGMIRE, the A&E original-and now NETFLIX drama series (Which I love! Funny how they get an Australian to play Longmire. Hearing Robert Taylor with an American Accent was a little weird…)
Fans of Ace Atkins, Nevada Barr and Robert B. Parker will love this outstanding first novel, in which New York Times bestselling author Craig Johnson introduces Sheriff Walt Longmire of Wyoming's Absaroka County. Johnson draws on his deep attachment to the American West to produce a literary mystery of stunning authenticity, and full of memorable characters. After twenty-five years as sheriff of Absaroka County, Walt Longmire's hopes of finishing out his tenure in peace are dashed when Cody Pritchard is found dead near the Northern Cheyenne Reservation. Two years earlier, Cody has been one of four high school boys given suspended sentences for raping a local Cheyenne girl. Somebody, it would seem, is seeking vengeance, and Longmire might be the only thing standing between the three remaining boys and a Sharps .45-70 rifle.
With lifelong friend Henry Standing Bear, Deputy Victoria Moretti, and a cast of characters both tragic and humorous enough to fill in the vast emptiness of the high plains, Walt Longmire attempts to see that revenge, a dish best served cold, is never served at all.
Battleaxe by Sara Douglass
"Douglass has the breadth of vision necessary to create sweeping epics and the storyteller's gift that makes readers love her." – Locus the Axis trilogy Book 1.
A stunning epic fantasy in the tradition of David Eddings, Janny Wurts and Robert Jordan.
A thousand years ago the Acharites drove the Forbidden from their land. Now strange sightings along Achar's northern border foreshadow their return. the barbaric tribes of the Ravensbund are pouring south with tales of fearsome beings who feed on the terror of their prey. Winter has come early, and with it the promise of war. Axis, bastard son of the dead Princess Rivkah, is sent to the battlefront of Gorkenfort with his elite Axe-Wielders. Once there, he must hand over command to his hated half-brother, Borneheld. But travelling north, Axis falls in love with Faraday – Borneheld's bethrothed – and meets two priests who challenge the very essence of his beliefs. the Sentinels walk the land, the treeFriend has been found, and the people of the Plough, the Wing and the Horn must set aside their differences and unite under one leader against the evil rising in the North…
Incandescence by Greg Egan
The long-awaited new novel from Greg Egan! Hugo Award-winning author Egan returns to the field with Incandescence, a new novel of hard SF.
The Amalgam spans nearly the entire galaxy, and is composed of innumerable beings from a wild variety of races, some human or near it, some entirely other. The one place that they cannot go is the bulge, the bright, hot center of the galaxy. There dwell the Aloof, who for millions of years have deflected any and all attempts to communicate with or visit them. So when Rakesh is offered an opportunity to travel within their sphere, in search of a lost race, he cannot turn it down.
Roi is a member of that lost race, which is not only lost to the Amalgam, but lost to itself. In their world, there is but toil, and history and science are luxuries that they can ill afford.
Rakesh's journey will take him across millennia and light years. Roi's will take her across vistas of learning and discovery just as vast.
-HMC
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Bored? Cast your eye over these Gems!
11 March, 2015 hmclarke	Leave a comment
I know I've been a little tardy with my book selections and I really have no excuse…..so…..
Here is my list of books to take a look at for March. I tried to aim for a bit of a mixed bag, but it did not turn out that way. Two books have a historical bent to them….I've been on a bit of an Agatha Christie binge for the last two months, so you will see one make and appearance here.
The Mysterious Affair at Styles – Agatha Christie
"The Mysterious Affair at Styles" is a detective novel by Agatha Christie. It was written in the middle of World War I, in 1916, and first published by John Lane in the United States in October 1920 and in the United Kingdom by The Bodley Head (John Lane's UK company) on 21 January 1921.
Styles was Christie's first published novel, introducing Hercule Poirot, Inspector (later, Chief Inspector) Japp, and Arthur Hastings. Poirot, a Belgian refugee of the Great War, is settling in England near the home of Emily Cavendish, who helped him to his new life. His friend Hastings arrives as a guest at her home. When the woman is killed, Poirot uses his detective skills to solve the mystery. This is also the setting of Curtain, Poirot's last case.
The Magician's Guild – Trudi Canavan
"We should expect this young woman to be more powerful than our average novice, possibly even more powerful than the average magician."
This year, like every other, the magicians of Imardin gather to purge the city of undesirables. Cloaked in the protection of their sorcery, they move with no fear of the vagrants and miscreants who despise them and their work—until one enraged girl, barely more than a child, hurls a stone at the hated invaders . . . and effortlessly penetrates their magical shield.
What the Magicians' Guild has long dreaded has finally come to pass. There is someone outside their ranks who possesses a raw power beyond imagining, an untrained mage who must be found and schooled before she destroys herself and her city with a force she cannot yet control.
Master and Commander – Patrick O'Brian
This, the first in the splendid series of Jack Aubrey novels, establishes the friendship between Captain Aubrey, R.N., and Stephen Maturin, ship's surgeon and intelligence agent, against a thrilling backdrop of the Napoleonic wars.
Details of a life aboard a man-of-war are faultlessly rendered: the conversational idiom of the officers in the ward room and the men on the lower deck, the food, the floggings, the mysteries of the wind and the rigging, and the roar of broadsides as the great ships close in battle.
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Things to Read….My Book Recommendations – Ta – Da!
10 October, 2014 hmclarke	Leave a comment
Here is my list of books to take a look at for October. I tried to aim for a bit of a mixed bag, but it did not turn out that way. Two books have dragons in them, one is fantasy with a touch of dragons and the last…well, Jack Irish could be considered a dragon in his own right. (If anyone has a chance to hear a talk by Peter Temple, grab it. He is a brilliant public speaker. I heard him talk at the Adelaide Writer's Festival.)
October's Books – Just click on the book image to check them out on Amazon.
Magician by Raymond Feist – I have a signed copy of this book. It is one of my favourites.
The world had changed even before I discovered the foreign ship wrecked on the shore below Crydee Castle, but it was the harbinger of the chaos and death that was coming to our door.
War had come to the Kingdom of the Isles, and in the years that followed it would scatter my friends across the world. I longed to train as a warrior and fight alongside our duke like my foster-brother, but when the time came, I was not offered that choice. My fate would be shaped by other forces.
My name is Pug. I was once an orphaned kitchen boy, with no family and no prospects, but I am destined to become a master magician…
Magician is the first book in Raymond E. Feist's acclaimed Riftwar Saga. The trilogy continues with book two, Silverthorn.
Green Smoke by Rosemary Manning – I have the 1957 first edition of this book. I've loved it since I was a kid.
It was just under the cliff walk from Constantine Bay to Treyarnon, in a little secret cove, that Susan discovered something quite different from anything that she had ever seen before. Perhaps "something" is not quite the correct word, "someone" would be more polite. His name was R. Dragon, he was 1,500 years old, and he had a great partiality for almond buns.
He was a dragon with impeccable manners, who was far too polite to eat people, and avoided meeting them because he did not like to frighten them. He could also tell stories and Sue heard about the Cornish giants and faries, and of King Arthur whom he had known very well. He taught Sue songs and took her on trips to Tintagel Castle and the Pool of Excalibur, and once to have tea with a mermaid, who told her about the country under the sea.
Dragonflight by Anne McCaffrey – I absolutely love these books and I love Anne McCaffrey
The men who rode the dragons were a breed apart. Chosen when the dragons were first hatched, they became soulmates for life with the huge, magnificent beasts they controlled – the green, blue, brown and bronzes – beautiful – terrible – the only creatures who could defend the planet Pern from the blood-red star. But without the Queen, the dragons would become extinct. Only the gigantic, golden Queen could breed the new flights. And the Queen was fading . . . dying . . . leaving behind one last, huge, golden egg.
Bad Debts by Peter Temple – This has now been made into a telemovie
A phone message from ex-client Danny McKillop doesn't ring any bells for Jack Irish. Life is hard enough without having to dredge up old problems: His beloved football team continues to lose, the odds on his latest plunge at the track seem far too long, and he's still cooking for one. When Danny turns up dead, Jack is forced to take a walk back into the dark and dangerous past.
With suspenseful prose and black humor, Peter Temple builds an unforgettable character in Jack Irish and brings the reader on a journey that is as intelligent as it is exciting.
H. M. Clarke
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HomelibelCancer Quack Colleen Huber Sues Britt Hermes for Libel
January 18, 2018 Andy Lewis libel, naturopathy 9
Cancer quackery is about as low as you can go. Telling people you can cure cancer with baking powder and vitamin C is irresponsible, unethical and lethal. But these are staple claims of the Naturopathic health care trade. In the UK, naturopathy is not a prominent mode of alternative medicine, but in the United States, students can spend tens of thousands of dollars being told they are getting meaningful medical qualifications in naturopathic medicine that are somehow equivalent to a real medical training.
Britt Hermes has been exposing this exploitative trade for a number of years now. She knows about it because she has been through it. Her own story is that she invested years of her life, and lots of money, training to be a naturopath under the impression that this was a legitimate form of medicine. Her sudden epiphany came when she discovered her employer at a naturopathic clinic was importing banned quack cancer treatments. Britt realised that naturopathy was ' a system of indoctrination based on discredited ideas about health and medicine, full of pseudoscientific rhetoric and loaded with ineffective and dangerous practices".
She had wasted her money and spent years learning useless and dangerous practices. But Britt is a strong character – she devoted herself to embarking on a life of science (she is now studying for a PhD in Kiel, Germany) and to doing her best to expose the naturopathic community for what it is – blatant, dangerous quackery.
She has been criticising the Universities on her blog that offer naturopathic medical qualifications along with the treatments they treat. Britt is using the tools of evidence based medicine to challenge the claims being made and to make people re-think their casual acceptance of these 'natural alternatives'. Her honesty and bravery have been moving and she has been recognised in the UK for her indefatigability with an Okham Award.
This has caused near panic in the paranoid and deluded world of naturopathic medicine. She has been targeted, threatened and attacked. Web sites have been set up to try to discredit her. Bastyr University, her alma mater, sent her a cease and desist letter. And now, cancer naturopath, Colleen Huber, has actually issued a misconceived and illiberal libel claim against her in Germany.
Libel claims are almost always designed to silence and intimidate. They are used to punish and harass. Huber cannot be allowed to get away with such legal thuggery and so the Australian Skeptics Society have set up a legal defense fund to help Britt fight this awful action. Britt has representation, but this will be costly. I urge you to donate. If every reader offered the price of a few Friday night drinks, Britt will have no worries. Give more if you can. Defending such actions is vital as it shows quacks they cannot resort to legal actions without significant costs to themselves. Patient lives depend on active and vocal criticism of alternative medicine – this action is designed to stop that.
I know what it is like to be on the receiving end of misconceived libel actions. Not only is it costly, but it also saps time and energy. My libel experience is still ongoing with last-gasp attempts to appeal still going through the courts nearly three years after trial. It is demoralising and destructive. Britt deserves full support and recognition here. Good luck Britt and we are with you.
Adrian Pengelly, Psychic Healer, and English Libel Laws
Liverpool NHS PCT Offering Quack Mysticism as Cancer Cure
Quack Totnes Cancer Conference Ends in Farce
The Totnes Cancer Health Centre: A Quack Pascal's Wager
9 Comments on Cancer Quack Colleen Huber Sues Britt Hermes for Libel
Ken January 18, 2018 at 10:35 pm
Andy — make txt size bigger! And line length shorter!
Iqbal Krishna January 19, 2018 at 11:49 am
"Her sudden epiphany came when she discovered her employer at a naturopathic clinic was importing banned quack cancer treatments. Britt realised that naturopathy was ' a system of indoctrination based on discredited ideas about health and medicine, full of pseudoscientific rhetoric and loaded with ineffective and dangerous practices".
Is she a sister of Edzard Ernst? Very similar experience leading to the eureka moment!!!!!
Robin Banks January 19, 2018 at 1:26 pm
Do cancer drugs improve survival or quality of life?
http://www.bmj.com/content/359/bmj.j4528
Sorry, this is an excellent article in the BMJ reviewing the evidence for conventional cancer drugs in solid dose tumours. You may as well give baking powder and vitamin C. It's safer and certainly a lot cheaper. 71 cancer therapies with cr@p primary endpoint data. This is the real scandal folks!
BRIAN July 25, 2018 at 8:43 pm
A top gastric surgeon in WA State told my sister he hates the chemo n radiation Drs as they lie about what it does FOR the person n how much better it is than they used to be. He says we have to try to repair what they have burnt n killed in you n then put bags on you n you probably will die from cancer within 3 to. years anyway. The cancer industry in the U S takes in every year about what the gross income of THREE BOEING COMPANIES PLUS THREE MICROSOFT COMPANIES DO WORLD WIDE. DO YOU THINK THEY WILL CLOSE THAT INCOME CASH COW DOWN? This site is where you find the biggest quack as he trashes studies about depleted soils n in the foods grown today. Some top universities have proven these results and some years back one of the top evening programs in the U S sent people to stores across the U S to buy oranges n they all got tested. Result was VERY LITTLE VITAMIN C IN THE ORANGES. The network never did it again though as they lost lots of ad money as a result. I would bet this guys income is heavily supplemented by big agriculture n the pill companies as well as the m.d. s in the cancer treatment industry
Jane E January 20, 2018 at 12:12 am
It truly takes an awesome person to not only admit she's wrong, but to devote herself to taking on these nuts.
JimR January 21, 2018 at 5:27 pm
An additional article on this at SBM
https://sciencebasedmedicine.org/cancer-quack-colleen-huber-sues-britt-hermes-over-criticism/
Concerned Citizen May 1, 2018 at 10:39 pm
This website is all fake news all the time. What a joke. You should partner up with snopes and the southern poverty law center, the goal here is apparently to promulgate fake news.
EJ Hill November 19, 2018 at 3:41 pm
Everything that does not conform to your preconceived notions are "fake news" I assume?
L June 2, 2018 at 5:24 pm
for your consistency, I think it's baking soda, not baking powder 🙂


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Q: QGIS, creating a mbtiles file from a custom shape I wonder if anyone can be of assistance, I am attempting to create a .mbtiles file from open street map data with open sea map data laid on top of it. I have been able to create the file successfully but I appear to be struggling to create a .mbtiles file from a custom shape, namely a shapefile -  that is, I can set the extent to cover a rectangular area, either by dragging the rectangle out, or selecting the current canvas, but if I choose a shape file the extents get set to odd numbers, its really small, and I don't get the output I was expecting.
Now, it appears that an extent is just a rectangle, so can I achieve what I want? Or is that simply not possible using the generate XYZ tiles exporter. Is it possible at all?

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