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Seventeen 187 September 1990 Fix



A District Court judge erred in suppressing the criminal defendant's voluntary confession, given after a valid waiver of Miranda rights during aconversational interview - rather than an aggressive interrogation - thattook place when the seventeen year old defendant, of his own accord, came to a police station with his mother, where the defendant was not entitled to his mother's continued presence during the interview, and where the police did not engage in "trickery" in separating the defendant from his mother during questioning; moreover, the absence of a recording of the interview was the defendant's choice and not the dominant factor in determining whether the confession was voluntary. [185-187]




Seventeen 187 September 1990


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The judge's rationale is not consistent with established principles, and, in some particulars, is inconsistent with the record and with his own findings. The judge had previously (i.e., earlier in his decision) found that the defendant's original Miranda waiver was knowing, voluntary, and intelligent, noting in particular that the defendant was seventeen and was a "a high school student in a system noted for excellence and in an age-appropriate grade . . . . [H]e is an intelligent if inexperienced young man." Nevertheless, he ruled that the waiver, although "knowingly, voluntarily and intelligently made, [could] be withdrawn at any time. Here the defendant waived his rights in his mother's presence to be questioned in his mother's presence." He was not informed, the judge reasoned, "that he could stop answering until his mother returned."


The "interested adult" rule, see Commonwealth v. A Juvenile, 389 Mass. 128 , 132-135 (1983), does not apply in this case because the defendant was seventeen. See Commonwealth v. Carey, 407 Mass. 528 , 537 (1990); Commonwealth v. Mavredakis, 430 Mass. 848 , 855 n.12 (2000). As the defendant "was not younger than seventeen . . . the presence of an 'interested adult' was not required." Commonwealth v. Considine, 448 Mass. 295 , 297 n.7 (2007).


On July 30, 1992, plaintiff filed an application for disability benefits, claiming disability since September 12, 1990, due to carpal tunnel syndrome. (Administrative Record (A.R.) 96, 138.) Initially and upon reconsideration, her application was denied, and she received a hearing before an Administrative Law Judge (ALJ) on September 12, 1994. (A.R.31, 56-74.) In a written decision dated March 24, 1995, the ALJ found that plaintiff had the following impairments: severe back pain, status post carpal tunnel syndrome associated with degenerative changes of the hand, rheumatoid arthritis, venous insufficiency to the legs, chronic Bell's palsy,[1] and *1117 chronic diarrhea. He concluded that plaintiff retained the residual functional capacity to perform a reduced range of light work. He further found that she had no transferable skills. (A.R.41.) Citing Rule 202.21 of the Medical-Vocational Guidelines, 20 C.F.R. Appendix 2, Subpart P (the "grids") and the testimony of a vocational expert, the ALJ found plaintiff not disabled at step five of the sequential evaluation process.[2] (A.R.40, 41.) The Appeals Council denied plaintiff's request for review (A.R.4-5), and the ALJ's decision stands as the Commissioner's final decision in this case.


Born on April 27, 1945, plaintiff was 49 years of age when the ALJ's decision was issued, and had completed high school. (A.R.49.) She worked as a licensed cosmetologist from 1964-1979 (A.R.49), as a waitress from 1979-1981 (A.R.510), and as a bench machinist at Rockwell International from October 1981-September 1990, when she was placed on temporary disability due to carpal tunnel syndrome. (A.R. 60, 134, 186, 430, 510.) There is no evidence that she has engaged in substantial gainful activity since September 1990.


Plaintiff has an extensive medical history, having undergone multiple surgical procedures and other treatment for a variety of medical conditions. However, much of the treatment reflected in the record predates the alleged onset of disability (in September 1990) from carpal tunnel syndrome. In 1976, plaintiff had an intestinal bypass operation (for the treatment of morbid obesity[3]), performed by Dr. Kouri. (A.R.367.) In 1982, Dr. Bryan performed a series of urological procedures, including removal of a kidney stone. (A.R.201, 320, 394-412.) Plaintiff had foot surgery by Dr. Ahern in 1983. (A.R.366, 466.) Between 1984 and 1990, Dr. Kahn performed several surgical revisions of the intestinal bypass; a wound reclosure operation; and a surgical excision of an occipital mass. He also treated plaintiff for ongoing complications of her bariatric surgeries (including recurrent metabolic imbalances, diarrhea, and arthritic/pleuritic complaints), gynecological problems, depression, and hand and wrist pain. (A.R.321, 325, 367-373, 377-379, 388-393, 413-434.) During roughly the same period from 1985 to 1990 plaintiff saw several physicians at the Rosecrans and Mullikin Medical Groups (Drs.Wong, Bergscheider, Csepanyi, Grindstaff, Donaldson, Grizzell, Saunders, Taubman, Olson) for the following conditions: diffuse arthritis with history of erythema nodosum[4]; Bell's palsy; fatty liver; magnesium imbalance; vaginitis; lumbosacral strain; severe bilateral calluses, toe deformities, bunions, and corns; hemorrhoids; bronchitis and laryngitis; gas; and a left leg contusion. (A.R.456-485.)


On September 12, 1990, Dr. Kahn referred plaintiff to Dr. Co, a neurologist, who diagnosed right carpal tunnel syndrome (CTS) of moderate severity. (A.R.161-162.) Plaintiff was thereafter referred by her employer to Dr. Chen, an orthopedic surgeon, who diagnosed bilateral CTS. Dr. Padova, an independent *1118 medical examiner for the Workers' Compensation Appeals Board who evaluated plaintiff in December 1990, concurred with that diagnosis. (A.R.185-186, 203, 205, 188-206.)


Dr. Mandel, an "agreed medical examiner" jointly selected by the parties to plaintiff's workers' compensation case, examined plaintiff in October 1993, reviewed plaintiff's voluminous medical records, and submitted a detailed, comprehensive twenty-three page report. (A.R.320-343.) Citing plaintiff's medical history (in particular, her use of "massive amounts" of steroidal and nonsteroidal drugs), Dr. Mandel opined that she had longstanding medical problems secondary to her intestinal bypass procedure "with its alteration in metabolic function," which, *1119 in turn, affects nerve function and may cause musculoskeletal difficulties. (A.R.329, 330.) In plaintiff's case, the repetitive use of her hands at work "undoubtedly aggravated" her preexisting arthritic condition, precipitating CTS. Dr. Mandel characterized plaintiff as "temporarily totally disabled" from CTS from September 1990 until mid-November 1991 but suggested that she was "unemployed" as opposed to "disabled" thereafter. (A.R.332-333.)


In a brief letter dated September 8, 1994 (four days before the hearing), Dr. Wong opined that plaintiff had been unable to work since 1990 and was permanently medically disabled. (A.R.488.) In a September 9, 1994, letter, Dr. Kahn also opined that plaintiff was unable to work. (A.R.434.)


Plaintiff was represented by counsel at the September 12, 1994, hearing before the ALJ. Testimony was received from plaintiff and a vocational expert. Plaintiff testified that she had not worked since 1990 due to symptoms of carpal tunnel syndrome, fibromyalgia,[9] chronic arthritis, stomach bypass surgery complications, back pain, and pleurisy. (A.R.61.) She stated that "maybe a couple times a month" she suffers attacks of pleurisy lasting three to five days, resulting in painful swelling in the area of the lungs and difficulty in breathing and raising her arms, and had been taking antibiotics (Cipro or Flagyl) daily since 1970 to help control the *1120 pleurisy. (A.R.61-62.) She further attested that she has flare-ups of rheumatoid arthritis "every couple of months" for three to four days. (A.R.64.) During these episodes, she becomes stiff and needs assistance getting in and out of the car and using the bathroom. (A.R.63-65, 79.) She stated that her physician, Dr. Kahn, administers ACTH (adrenocorticotropic hormone)[10] injections when her arthritic symptoms recur and that she also takes Lodine (a non-steroidal anti-inflammatory) daily. (A.R.66.)


The ALJ concurred with Dr. Kahn's assessment that plaintiff suffers chronic diarrhea and arthritis by history but declined to accept Dr. Kahn's conclusion that plaintiff was precluded from all employment.[15] The ALJ correctly observed that neither Dr. Kahn's treatment notes nor plaintiff's other medical records documented treatment for the frequent, prolonged, incapacitating bouts of arthritis/fibromyalgia described in Dr. Kahn's letter (and by plaintiff in her hearing testimony).[16] In fact, there is no record of plaintiff's having seen Dr. Kahn since September 12, 1990, for treatment of any kind, significantly undermining plaintiff's contention that his September 1994 report merits substantial weight.[17]See 20 C.F.R. 404.1527(d), 416.927(d) (1996) (factors to be considered in determining weight of medical opinions include length, nature, and extent of treatment relationship; supportability; consistency; and specialization); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983) treating physician opinion entitled to greater weight since he had last examined her.[18] Indeed, the very wording of his letter suggests *1123 that he simply adopted plaintiff's subjective account of her symptoms. On this record, it cannot be said that the ALJ erred by discounting Dr. Kahn's 1994 letter as an accommodation in aid of her disability claim. See Matney on Behalf of Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir.1992) (ALJ entitled to reject treating physician's opinion because it was based primarily on medical history and subjective complaints related by claimant with minimal examination findings and because doctor had become an advocate for claimant) see also Saelee v. Chater, 94 F.3d 520 (9th Cir.1996) (as amended) cert. denied, ___ U.S. ___, 117 S. Ct. 953, 136 L. Ed. 2d 840 (February 18, 1997). 041b061a72


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