Having won its Miller Act claim1 against federal contractor The Famous Construction Corporation ("Famous") and its surety, Capitol Indemnity Corporation ("Capitol"), for amounts owing on unpaid construction and repair work, subcontractor Cal's A/C and Electric ("Cal's") appeals a partial summary judgment dismissing its Louisiana state law claim for attorney's fees.2 Because the district court incorrectly concluded that the Miller Act precludes supplemental jurisdiction over Cal's' related state claim for fees, we vacate and remand, noting that, because the district court rendered its decision on November 30, 1998, it could not have taken into account this court's opinion announced the next day in United States ex rel. Varco Pruden Bldgs. v. Reid & Gary Strickland Co., 161 F.3d 915, 918-19 (5th Cir. 1998).
Federal district courts can exercise supplemental jurisdiction "over all . . . claims that are so related to claims in the action within such original jurisdiction [of the district court] that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367. The parties do not contest that Cal's' state law action for fees is sufficiently related, for § 1367 purposes, to its Miller Act claim. The district court read F.D. Rich Co. v. United States ex rel. Indus. Lumber Co., 417 U.S. 116 (1974), however, as construing the Miller Act to bar supplemental jurisdiction over otherwise related state law claims for attorney's fees.
F.D. Rich did no such thing; it stated that the Miller Act does not "explicitly provide for an award of attorneys' fees to a successful plaintiff." Id. at 126. The Court further held that " [t]he Miller Act provides a federal cause of action, and the scope of the remedy as well as the substance of the rights created thereby is a matter of federal not state law." Id. at 127.
F.D. Rich thus announced only that Miller Act claims themselves do not incorporate state law remedies such as attorney's fees; it did not read the Act to preclude the pursuit of state causes of action for fees in addition to Miller Act claims.3 As we announced in Varco Pruden, " [w]e do not read F.D. Rich to prohibit an award of attorneys' fees under a state claim over which the court has exercised supplementary jurisdiction in a Miller Act case." 161 F.3d at 918-19.4 We therefore vacate, concluding that Cal's may pursue attorney's fees under Louisiana law.
this section [of the Prompt Payment Act] shall not limit or impair any contractual, administrative, or judicial remedies otherwise available to a contractor or a subcontractor in the event of a dispute involving late payment or nonpayment by a prime contractor or deficient subcontract performance or nonperformance by a subcontractor.
31 U.S.C. § 3905(j). Cal's would have us recognize that § 3905(j) effectively overrules the construction of the Miller Act offered by F.D. Rich,6 but the text plainly limits itself to one particular section of the Prompt Payment Act. Any bars to additional remedies erected by the Miller Act are left untouched by § 3905(j). We therefore do not rely on the Prompt Payment Act, but instead conclude that F.D. Rich found no such barrier in the Miller Act in allowing Cal's to proceed on its Louisiana claim.
Finally, because we follow the lead of Varco Pruden in holding that F.D. Rich did not preclude state-based actions for attorney's fees to accompany Miller Act claims, we need not entertain Cal's alternative argument that § 1367 implicitly overrules F.D. Rich. Because F.D. Rich did not bar supplemental jurisdiction over state law claims, there was nothing in that opinion for § 1367 to overrule.
If the contractor or subcontractor without reasonable cause fails to make any payment to his subcontractors and suppliers within fourteen consecutive days of the receipt of payment from the owner for improvements to an immovable, . . . the contractor or subcontractor shall be liable for reasonable attorney fees for the collection of the payments due the subcontractors and suppliers.
La. Rev. Stat. Ann. § 9:2784(C) (emphasis added).
Thus, Louisiana law allows Cal's to recover attorney's fees from Famous, the contractor, though not from Capitol, the surety.7 Furthermore, as we have previously held, "recovery on the bond must be under the Miller Act." Varco Pruden, 161 F.3d at 919.8 Cal's therefore may proceed against Famous but not Capitol.
Famous presents two arguments, under La. Rev. Stat. Ann. § 9:2784(C), why it should not be held liable for attorney's fees and asserts that remand is inappropriate because Cal's failed to comply with Fed. R. App. P. 10. We address each argument in turn.
Moreover, Famous had paid the undisputed amounts in full; only the disputed amounts were kept from Cal's.10 Therefore, according to Famous, Cal's cannot prove that Famous lacked reasonable cause not to make payment, as required to obtain attorney's fees under Louisiana law.
We may affirm on any ground supported by the record, even if it was not the basis for judgment.11 Nevertheless, rejection on the merits of Cal's request for attorney's fees under § 9:2784(C) requires particular factual findings that the district court did not make--indeed, had no need to make.12 Therefore, remand is necessary to determine whether Famous had reasonable cause not to pay Cal's.
Second, the statute allows recovery of attorney's fees only " [i]f the contractor or subcontractor . . . fails to make any payment to his subcontractors and suppliers within fourteen consecutive days of the receipt of payment from the owner." § 9:2784(C) (emphasis added). The VA made a series of payments to Famous, including compensation for part of the work performed by Cal's. Cal's, however, also did work for Famous that the VA never paid for.
Cal's claims that Famous should be estopped from asserting nonpayment by the VA as a defense, because Famous unreasonably failed to request additional payments from the VA to ensure full compensation for Cal's. But nothing in the text of § 9:2784(C) suggests any opportunity for relief where the contractor has not received payment from the owner, and Cal's does not provide any alternative theory under Louisiana law to justify recovery of attorney's fees.
Remand therefore is necessary, because the record does not permit us to render judgment on Cal's claim under § 9:2784(C). The district court erroneously dismissed this claim for lack of supplemental jurisdiction. Therefore, on remand it will have its first opportunity to address the claim on the merits.
Famous and Capitol, however, blame any deficiencies in the record not on the procedural posture of this case, but on Cal's. They assert that record omissions should be construed against Cal's on the ground that Cal's failed to notify them that it ordered only an incomplete transcript, inadequate to support Famous and Capitol's merits defense.
It is the duty of the appellant either to "order from the reporter a transcript of such parts of the [district court] proceedings not already on file as the appellant considers necessary," or "file a certificate stating that no transcript will be ordered." Fed. R. App. P. 10(b) (1). Moreover, where the appellant decides to order something less than the entire transcript, it must "file a statement of the issues that the appellant intends to present on the appeal and must serve on the appellee a copy of both the order or certificate and the statement." Fed. R. App. P. 10(b) (3) (A). The appellee then has the opportunity to order other parts of the proceedings to be included in the record on appeal. Fed. R. App. P. 10(b) (3) (B)-(C).
Cal's satisfied in toto the requirements of rule 10(b) (3) (A). It served Famous and Capitol with its transcript order and with its notice of appeal, which adequately articulated a "statement of the issues that the appellant intends to present on the appeal." Id. The appellate rules do not require, as Famous and Capitol seem to suggest, that an appellant specifically warn appellees that it is not ordering a complete transcript. Famous and Capitol may regret failing to take the opportunity to order additional parts of the transcript for appeal--particularly because Varco Pruden has forced them to press alternative legal theories--but the fault lies with Famous and Capitol, and not Cal's.
See 40 U.S.C. § 270a et seq. (imposing bonding requirements for federal contracts and establishing federal cause of action to recover on such bonds).
See La. Rev. Stat. Ann. § 9:2784(C) ("If the contractor or subcontractor without reasonable cause fails to make any payment to his subcontractors and suppliers within fourteen consecutive days of the receipt of payment from the owner for improvements to an immovable, . . . the contractor or subcontractor shall be liable for reasonable attorney fees for the collection of the payments due the subcontractors and suppliers.").
Indeed, the plaintiff in F.D. Rich did not even seek a state law-based claim for attorney fees, for California law did not provide such an action. Instead, the plaintiff sought to incorporate California state policy into the federal Miller Act. See F.D. Rich, 417 U.S. at 126-18 ("Looking to California law, the Court of Appeals found an award of attorneys' fees proper because [California law] allowed for the recovery of attorneys' fees in state actions on the bonds of contractors for state and municipal public works projects . . . [though that statute was] inapplicable to construction projects of the United States. The Court of Appeals nonetheless held that since federal law controls Miller Act recoveries, it was free to look to 'state policy' rather than state law . . . ."). Here, by contrast, the plaintiff looks to Louisiana state law, and not the Miller Act, for relief.
See also United States ex rel. Garrett v. Midwest Constr. Co., 619 F.2d 349, 352-53 (5th Cir. 1980) ("Under [F.D. Rich], federal common law governs the claim for attorney's fees in Miller Act cases. . . . F.D. Rich proscribes attorney's fees in Miller Act cases absent a controlling contractual or statutory provision."); but see United States ex rel. Howell Crane Serv. v. U.S.
Fidelity & Guar. Co., 861 F.2d 110, 112 (5th Cir. 1988) (holding that no state law claim for attorney's fees should be inferred from pleadings because " [t]he clear holding of F.D. Rich is that attorney's fees are not generally available in a Miller Act suit even when state law provides for such an award.").
See Pub. L. No. 100-496, 102 Stat. 2455, 2460-63, § 9 (codified at 31 U.S.C. § 3905).
A few district courts, in addition to the district court in this case, have supported this approach. See United States ex rel. Don Siegel Constr. Co. v. Atul Constr. Co., 85 F. Supp. 2d 414, 416 n.1 (D.N.J. 2000) (stating that, though "at least one federal district court has held that a subcontractor's supplemental state law claims against a contractor or surety may be preempted by the Miller Act . . . the holding in that case was subsequently superseded by the Prompt Payment Act"). We are aware of no courts of appeals that have addressed the issue.
See Howell Crane, 861 F.2d at 113 (" [Surety] USF&G's only involvement with [subcontractor] Howell was its Miller Act bond. No state law claim was asserted by Howell against USF&G. Thus, there is no basis for a pendant jurisdiction award of attorney's fees against USF&G.").
See also Bernard Lumber Co. v. Lanier-Gervais Corp., 560 So. 2d 465, 467 (La. App. 1st Cir. 1990) ("While the Miller Act is not the exclusive remedy available to suppliers in some cases, it is the exclusive remedy available to a supplier against a surety (or the surety's guarantor in this case) on a Miller Act payment bond.").
See Contractors Supply & Eq-Orleans v. J. Caldarera & Co., 734 So. 2d 755, 759 (La. App. 5th Cir. 1999) ("The trial judge determined that the amount demanded by the plaintiff was out of proportion to the amount owed, therefore the defendant had reasonable cause to withhold payments. . . . [T]he trial court did not err in denying the plaintiff attorney fees . . . .").
Cf. Unis v. JTS Constructors/Managers, Inc., 541 So. 2d 278, 281 (La. App. 3d Cir. 1989) (reasoning that "because no disputes existed between the parties over the Palmetto Creek Project, it was unreasonable for JTS Constructors to withhold payment").
See Zuspann v. Brown, 60 F.3d 1156, 1160 (5th Cir. 1995) ("We are free to uphold the district court's judgment on any basis that is supported by the record."); Wooton v. Pumpkin Air, Inc., 869 F.2d 848, 850 n.1 (5th Cir. 1989) (stating that judgment "may be affirmed on appeal for reasons other than those asserted or relied on below").
The intensely factual nature of this dispute is reflected in the briefs of both parties, and that remand for further proceedings is warranted is reflected in the paucity of record references by either side.
See Gitz v. Quality Restorations Contractors, Inc., 508 So. 2d 170, 172 (La. App. 4th Cir. 1987) (Ciaccio, J., concurring) (" [Section 9:2784(C)] is a punitive statute that regulates the timely payment of the sub-contractor out of those funds the contractor receives as progress payments from the owner. It does not and cannot shift the risk of non-payment by the owner from the general contractor to the sub-contractor in the absence of specific language in the contract providing for that contingency.").


text:
Alfred Nelson, in pro. per., for Plaintiff and Appellant.
Varni, Fraser, Hartwell & Van Blois and Steve McNichols, Jr., for Defendant and Respondent.
Plaintiff appeals from the summary judgment entered on motion of defendant Crocker National Bank. The motion was predicated [51 Cal.App.3d 538] and granted on the basis of res judicata. On appeal, plaintiff contends the bar of res judicata was not applicable in that the judgment and decision establishing that bar were void for lack of jurisdiction.
In 1962, plaintiff purchased from Theodore Lakin (deceased) unpatented mining claims in Sierra County. Plaintiff gave Lakin a $6,000 promissory note dated June 4, 1962, and secured by a deed of trust on property in San Joaquin County. Plaintiff subsequently learned that title to the claims was in question and that Lakin may have failed to comply with the requirements of section 2314 of the Public Resources Code requiring one hundred dollars' worth of improvement work be done to mining claims in order to retain possession. Two Sierra County residents claimed ownership of the claims adversely to plaintiff. Plaintiff initiated an ejectment suit against them, but for an unexplained reason, later abandoned the action.
Plaintiff made no payments on his note to Lakin, and in 1963, Lakin pressed him for interest payments. Plaintiff advised Lakin by letter, "... that so long as the rifelmen [sic] of Sierra County succeed in holding the property on the basis which they claim, I am not going to pay you any part of the agreed purchase price." Plaintiff indicated his intention to pursue the ejectment action, but if it failed he would bring an action to cancel the note and deed of trust on the ground of fraud in the inducement. With his letter, plaintiff forwarded a waiver to Lakin providing that payment of interest on the note would not be a relinquishment of plaintiff's rights or defenses. Lakin executed the waiver and returned it.
Plaintiff made the next two interest payments but thereafter declined further payment.
In 1964, interest was again demanded by Lakin. None was paid; and on July 30, 1964, Lakin filed a notice of default for nonpayment. On October 22, plaintiff sent Lakin a letter of formal rescission of the promissory note and trust deed alleging misrepresentation. On October 28, 1964, plaintiff filed a superior court action against Lakin in Alameda County seeking cancellation, injunction, and rescission. fn. 1 Lakin was restrained from further proceeding with the foreclosure pending trial. The case came on for trial in October 1969. Lakin died prior to [51 Cal.App.3d 539] commencement of trial, and Crocker-Citizens National Bank, as trustee of his estate, was substituted in his place.
On the day of trial, defendant Crocker sought transfer to San Joaquin County, the situs of the property described in the deed of trust on the ground that Alameda County had no jurisdiction over the action. The motion was opposed by plaintiff and denied. Trial proceeded, and judgment in favor of defendants was entered December 24, 1969. Plaintiff appealed. The First Appellate District, Division One, in an unpublished unanimous opinion filed September 1, 1972, fn. 2 affirmed the trial court's judgment. Plaintiff unsuccessfully sought a rehearing in the Court of Appeal and a hearing before the Supreme Court.
Despite the judgment, plaintiff failed to make any payments on the note; on March 26, 1973, defendant recorded a notice of default in San Joaquin County. On June 25, 1973, plaintiff filed the instant proceeding in the San Joaquin County Superior Court. With the exception of a few paragraphs explaining the status and identity of the defendants in the case as successors and representatives of those originally named, and two paragraphs alleging the 1973 notice of default, the complaint is virtually identical to the earlier Alameda County action. Defendant's moving papers for summary judgment established the nature, existence and disposition of the Alameda County action. It is upon this state of the record that plaintiff has appealed the summary judgment.
"1. That Alfred Nelson, attorney for debtor, is the real person in interest, and debtor is a mere sham holder of title who was vested the same day the Chapter XII was filed with no cash down. Debtor only gave a Deed of Trust for $175,000.00 payable in six months.
"2. That the sole purpose for filing this proceeding was to obtain a restraining order against plaintiff, which was not obtainable in the state court, as plaintiff had the right to foreclose affirmed by California's Appellate Court with review denied by the California Supreme Court, and a second subsequent suit in a different Superior Court denied, which [51 Cal.App.3d 540] now is in its appeal stages. Plaintiff started its original foreclosure in 1964, and has been delayed by Alfred Nelson ever since.
"5. This proceeding is a mere device to further delay and harrass plaintiff, after exhausting the rights given in the state courts."
On March 13, 1974, plaintiff filed yet another action in the San Joaquin County Superior Court seeking a preliminary injunction and temporary restraining order against disposition of the property pursuant to trustee sale. The action, entitled Donald Lee Mohundro versus Western Title Guaranty Company, et al., was No. 116356. Plaintiff did not advise the court of the decisional status of the prior litigation and obtained a temporary order restraining the scheduled foreclosure sale. The superior court, upon learning of the prior action and its disposition, dissolved the temporary restraining order and dismissed the action.
Thereafter, plaintiff paid defendant Crocker National Bank the amount of the note. Upon receipt of payment, the note was cancelled and a deed of reconveyance executed and recorded in Book 3903, page 668 of the official records of the San Joaquin County Recorder's office.
The question of the transitory or local character of the cause of action must be determined from the allegations of the complaint at the time the motion for change of venue was made in the Alameda proceeding and the nature of the potential relief. The prayer of the complaint in the Alameda County proceeding indicates plaintiff sought cancellation and rescission of the promissory note and deed of trust, together with an injunction restraining defendants from proceeding with the trustee's sale. Relief was sought on the ground of fraud or misrepresentation of facts inducing plaintiff to enter into the purchase of the mining claims. Plaintiff's right to restoration of title depended upon a successful attack upon the validity of the promissory note secured by the deed of trust, by a showing of fraud or misrepresentation; the recovery of title to the property was incidental to the action to cancel the promissory note and set aside the deed of trust. (Leeper v. Beltrami (1959) 53 Cal.2d 195, 216 [1 Cal.Rptr. 12, 347 P.2d 12, 77 A.L.R.2d 803]; Laurel Crest, Inc. v. Superior Court (1965) 235 Cal.App.2d 69 [44 Cal.Rptr. 867].) The primary purpose of the action being to cancel the note and deed of trust upon the ground of fraud, the action was transitory and not local, and was properly tried in Alameda County. (Howe v. Tucker, supra, 219 Cal. 193; see also Eckstrand v. Wilshusen (1933) 217 Cal. 380, 382 [18 P.2d 931]; Fletcher v. Nordesta Homes, Inc. (1961) 192 Cal.App.2d 33, 35 [13 Cal.Rptr. 226]; Vaughan v. Roberts (1941) 45 Cal.App.2d 246 [113 P.2d 884]; Cade v. Superior Court (1961) 191 Cal.App.2d 554, 559 [12 Cal.Rptr. 847]; Myers v. Superior Court (1946) 75 Cal.App.2d 925, 930 [172 P.2d 84]; Reid v. Kerr (1923) 64 Cal.App. 117, 120-121 [220 P. 688]; Grable v. Grable (1960) 180 Cal.App.2d 353, 359-360 [4 Cal.Rptr. 353].) It resulted in a valid and binding judgment.
The order granting summary judgment is affirmed; the sum of $1,000 damages will be added to the cost of appeal to be recovered by defendant Crocker National Bank from plaintiff Nelson.
Friedman, Acting P. J., and Paras, J., concurred.
?FN 1. Alameda County Superior Court action No. 345269; Alfred Nelson, plaintiff, versus Theodore Winfield Lakin, Security Title Insurance Company, and Western Title Guaranty Co., defendants.
?FN 2. 1 Civil 28400.

matches: v. v. v. v. v. v. v. v. v. v.


§ 220-2 Candidates to have access to system for electronic filing.
§ 220-3 Treasurers to have access to system for electronic filing.
§ 220-4 Access to reports and statements filed electronically.
§ 220-5 Access to reports and statements on County Web site.
§ 220-6 Web access guidelines, methods and specifications.
§ 220-7 Electronic submission not required.
For additional information regarding elected officers, see Charter Art. III.
For additional information regarding the Legislative Branch, see Charter Art. IV.
For additional information regarding the Executive Branch, see Charter Art. V.
For additional information regarding accountability, conduct and ethics, see Charter Art. XI.
For additional information regarding the County Council, see Administrative Code Art. 301.
For additional information regarding the Chief Executive, see Administrative Code Art. 401.
For additional information regarding political activity and the Accountability, Conduct and Ethics Code, see Administrative Code Art. 1013.
Any individual who seeks nomination or election to public office, other than a judge of elections or inspector of elections, whether or not such individual is nominated or elected. An individual shall be deemed to be seeking nomination or election to such office if he has received a contribution or made an expenditure or has given his consent for any other person or committee to receive a contribution or make an expenditure, for the purpose of influencing his nomination or election to such office, whether or not the individual has made known the specific office for which he or she will seek nomination or election at the time the contribution is received or the expenditure is made; or taken the action necessary under the laws of the commonwealth to qualify himself for nomination or election to such office.
Any committee, club, association or other group of persons which receives contributions or makes expenditures.
Beginning January 1, 2005, it shall be the policy of the County of Allegheny that any candidate who is required to file a campaign finance report or campaign finance statement with the Elections Division pursuant to the Campaign Expense Reporting Law, Act 171 of 1978, shall have access to a technical system so that they may use electronic means to file.
Beginning January 1, 2005, it shall be the policy of the County of Allegheny that each Treasurer of a political committee which is required to file a campaign finance report or campaign finance statement with the Elections Division pursuant to the Campaign Expense Reporting Law, Act 171 of 1978, shall have access to a technical system so that they may use electronic means to file.
Beginning April 1, 2005, it shall be the policy of the County of Allegheny that campaign finance reports and campaign finance statements filed electronically with the Elections Division shall be posted and accessible to the public through the County's Web site within 72 hours of each filing deadline and shall remain accessible for a period of five years.
Beginning January 1, 2007, it shall be the policy of the County of Allegheny that campaign finance reports and campaign finance statements, regardless of the means by which they were filed with the Elections Division, shall be posted and accessible to the public through the County's Web site within 72 hours of each filing deadline and shall remain accessible for a period of five years.
Web access to the campaign finance reports and campaign finance statements shall include a searchable database. The development of the guidelines for submission, retrieval, storage and public disclosure of campaign finance reports and campaign finance statements by electronic means shall be at the discretion of the administration and shall mirror, as closely as possible, the guidelines established by the Pennsylvania Department of State, Bureau of Commissions, Elections and Legislation. The Elections Division shall promulgate methods and specifications for the electronic submission of campaign finance reports and campaign finance statements no later than June 30, 2004.
The filing of campaign finance reports and campaign finance statements through electronic means shall be permitted and encouraged, but not required. The Elections Division shall continue to accept reports filed by paper.


Petitioner-appellant James David Pack (Pack), a federal prisoner currently incarcerated in Mississippi, was convicted in 1989 in United States District Court for the Eastern District of Tennessee of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). Based on his prior state convictions for, among other things, burglary and grand larceny, Pack was sentenced to a mandatory minimum term of fifteen years' imprisonment under the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. § 924(e) (1). Thereafter, in Tennessee state court, Pack filed an unsuccessful writ of error coram nobis, in which he challenged the validity of prior state convictions. He then filed in the Eastern District of Tennessee a motion for post-conviction relief under 28 U.S.C. § 2255, which was denied. On July 27, 1998, Pack filed in the Southern District of Mississippi the instant petition for habeas corpus relief under 28 U.S.C. § 2241. The district court dismissed this petition with prejudice and Pack now appeals. We affirm, with one minor modification.
Pack, a prisoner at the Federal Correctional Institution in Yazoo City, Mississippi, was convicted in 1989 in the Eastern District of Tennessee for violating 18 U.S.C. 922(g) (1), which prohibits the carrying of a firearm by a convicted felon.1 In 1979, Pack in Tennessee state criminal court had pleaded guilty to and was convicted of four separate burglary offenses and one grand larceny offense. In 1982, he reappeared before the same state court and pleaded guilty to and was convicted of four burglary offenses and one offense of possession of a controlled substance with intent to sell. Based on these prior offenses, the Eastern District of Tennessee court in 1989 sentenced Pack to a minimum mandatory term of imprisonment for fifteen years pursuant to the ACCA.2 Pack did not directly appeal his 1989 federal conviction or sentence.
In May 1996, Pack filed in Tennessee state court a petition for writ of error coram nobis, in which he challenged the legality of his 1979 and 1982 state convictions. The Tennessee Court of Criminal Appeals dismissed Pack's petition as time-barred, whether construed as a request for the writ or as a request for post-conviction relief. See Pack v. State, 1997 WL 531155 (Tenn. Crim. App. Aug. 29, 1997). On April27, 1997, Pack filed in the Eastern District of Tennessee a motion for post-conviction relief under 28 U.S.C. § 2255, in which he alleged that his federal sentence had been enhanced on the basis of constitutionally infirm state convictions. Pack claimed that in connection with both his 1979 and 1982 state convictions, he received ineffective assistance of counsel and did not enter voluntary guilty pleas. In the meantime, Pack filed an application for permission to appeal his state sentences; on May 4, 1998, the Tennessee Supreme Court denied his application. On June 26, 1998, the Eastern District of Tennessee court denied Pack's section 2255 motion. That court concluded that under Custis v. United States, 114 S. Ct. 1732 (1994), Pack could only bring a section 2255 challenge to his enhanced federal sentence by first getting his prior state convictions vacated, either through state proceedings or a federal habeas challenge to those convictions themselves, and then moving to vacate his federal sentence pursuant to section 2255. The Sixth Circuit denied Pack's motion for a certificate of appealability (COA) of the denial of his section 2255 motion.
This Court reviews de novo a district court's dismissal of a section 2241 petition on the pleadings. See Venegas v. Henman, 126 F.3d 760, 761 (5th Cir. 1997). We conclude that the district court was correct in dismissing Pack's section 2241 petition for lack of jurisdiction.
A writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 are distinct mechanisms for seeking post-conviction relief. A section 2241 petition on behalf of a sentenced prisoner attacks the manner in which a sentence is carried out or the prison authorities' determination of its duration, and must be filed in the same district where the prisoner is incarcerated. See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996); Blau v. United States, 566 F.2d 526, 527 (5th Cir. 1978) (per curiam). A section 2255 motion, by contrast, "provides the primary means of collateral attack on a federal sentence." Cox v. Warden, Federal Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990). Relief under section 2255 is warranted for errors cognizable on collateral review that occurred "at or prior to sentencing." Id. (internal quotation omitted). A section 2255 motion must be filed in the sentencing court. Id. at 1113 n.2.
This Court has observed that " [a] petition for a writ of habeas corpus pursuant to [section] 2241 is not a substitute for a motion under [section] 2255." McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979) (per curiam); see also Williams v. United States, 323 F.2d 672, 673 (10th Cir. 1963) (per curiam) (noting that a section 2241 petition "is not an additional, alternative, or supplemental remedy, to the relief afforded by motion in the sentencing court under § 2255"). A section 2241 petition that seeks to challenge the validity of a federal sentence must either be dismissed or construed as a section 2255 motion. See Ojo, 106 F.3d at 683 ("Because all of the errors Ojo alleges [occurred before or during sentencing], they must be addressed in a § 2255 petition, and the only court with jurisdiction to hear that is the court that sentenced him."); Cox, 911 F.2d at 1114 ("The district court's dismissal of these grounds clearly was proper because they concerned alleged errors that occurred at sentencing and, therefore, may be remedied under section 2255."); Solsona v. Warden, F.C.I., 821 F.2d 1129, 1131-32 (5th Cir. 1987).
"An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255.
Accordingly, a section 2241 petition that seeks to challenge a federal sentence or conviction-thereby effectively acting as a section 2255 motion-may only be entertained when the petitioner establishes that the remedy provided for under section 2255 is inadequate or ineffective. See United States v. Hayman, 72 S. Ct. 263, 273 (1952); Charles v. Chandler, 180 F.3d 753, 755 (6th Cir. 1999) (per curiam); Bradshaw, 86 F.3d at 166; McGhee, 604 F.2d at 10.
The petitioner bears the burden of demonstrating that the section 2255 remedy is inadequate or ineffective. McGhee, 604 F.2d at 10. Pack contends that section 2255 relief is inadequate and ineffective because he is time-barred from bringing a second or successive section 2255 motion. In his reply to the government's motion to dismiss his section 2241 claim before the district court, he also argued that section 2241 relief was appropriate because the Eastern District of Tennessee had already (erroneously, in his estimation) denied his section 2255 motion. Neither of these arguments demonstrates that the relief available to Pack from section 2255 was inadequate or ineffective.
"Courts have found a remedy under 28 U.S.C. § 2255 to be inadequate or ineffective only in extremely limited circumstances." Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999). This Court and other Courts of Appeals have consistently noted that "a prior unsuccessful [section] 2255 motion is insufficient, in and of itself, to show the inadequacy or ineffectiveness of the remedy." McGhee, 604 F.2d at 10; see also Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000) (per curiam); Charles, 180 F.3d at 756; Bradshaw, 86 F.3d at 166; Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988); Zvonaric v. Mustain, 562 F.2d 570, 572 n.1 (8th Cir. 1977) (per curiam). Neither will a claim of procedural bar suffice to demonstrate that section 2255 relief is inadequate or ineffective. See Caravalho, 177 F.3d at 1179 (" [W]e agree with the district court that the mere fact Caravalho is precluded from filing a second § 2255 petition does not establish that the remedy in § 2255 is inadequate."); Triestman v. United States, 124 F.3d 361, 376 (2d Cir. 1997) (noting that section 2255's substantive and proceduralbarriers by themselves do not establish that section 2255 is inadequate or ineffective). Similarly, a section 2255 motion "cannot become 'inadequate or ineffective,' thus permitting the use of [section] 2241, merely because a petitioner cannot meet the AEDPA 'second or successive' requirements." United States v. Barrett, 178 F.3d 34, 50 (1st Cir. 1999), cert. denied, ___ U.S. ___, 120 S. Ct. 1208 (2000); see also Tolliver, 211 F.3d at 878; In re Davenport, 147 F.3d 605, 608 (7th Cir. 1998); In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). To hold otherwise would flout Congress's obvious intent to give meaning to these procedural requirements. A ruling that the section 2255 remedy was inadequate or ineffective, such that a petitioner could invoke section 2241, simply because the petitioner's prior section 2255 motion was unsuccessful, or barred, or because he could not file another motion, would render those procedural requirements a nullity and defy Congress's clear attempt to limit successive habeas petitions.
Other circuits have indicated that a defendant may invoke the "savings clause" exception only when the Constitution demands it, or where otherwise Congress would violate the Suspension Clause by imposing a conviction or sentence without allowing for section 2241 relief. See In re Davenport, 147 F.3d at 609 (noting that section 2241 relief may be available to challenge a conviction or sentence in order that the prisoner "cannot complain that the limitations in [section] 2255 suspended whatever constitutional right he might have had, under the suspension clause or conceivably under the due process clause, to be allowed to seek habeas corpus"). Cf. Swain v. Pressley, 97 S. Ct. 1224, 1229-30 (1977) (presence of similar "savings clause" in District of Columbia analogue to section 2255 defeats Suspension Clause challenge). And, there are opinions in other circuits also indicating that a prisoner barred from filing a second or successive section 2255 motion may be able to challenge his conviction via section 2241 if he makes a "valid claim of actual innocence." See Cooper v. United States, 199 F.3d 898, 901 (7th Cir. 1999); see also Charles, 180 F.3d at 757 (noting the possibility that a claim of actual innocence might permit a petitioner under certain circumstances to utilize section 2241 "as a means of circumventing [section] 2255's restrictions on the filing of second or successive habeas petitions").
If Pack had been sentenced by the district court below, were no longer "in custody" for his 1979 and 1982 Tennessee convictions, and had exhausted all his Tennessee state remedies, then the district court, under Clark, would have had jurisdiction to hear his section 2255 motion. See id. Pack, however, was sentenced in the Sixth Circuit, which still interprets Custis to require that prisoners challenging prior convictions used to enhance current federal sentences under the ACCA first have their prior convictions vacated, either through state proceedings or section 2254, and then return to challenge their federal sentences before the sentencing court. See Turner v. United States, 183 F.3d 474, 477 (6th Cir. 1999). The Sixth Circuit holds that a prisoner in Pack's position is subject to this requirement even though he cannot meet the "in custody" requirement of section 2254. See Smith v. United States, 213 F.3d 291, 294-96 (6th Cir. 2000) (declining to follow Clark in light of Turner). The Sixth Circuit denied Pack's motion for a COA on the denial of his section 2255 motion. We do not sit to review decisions of the Sixth Circuit or of the district courts therein.
As a final matter, we modify the district court's order in only one minor respect. The district court dismissed Pack's petition with prejudice on the ground that it lacked jurisdiction to hear the petition. Because the district court did not rule on the merits of Pack's claim, his petition should be dismissed with prejudice regarding the jurisdictional issue only, and dismissed without prejudice regarding all other issues. See Fed. R. Civ. P. 41(b); Costello v. United States, 81 S. Ct. 534, 545 (1961).
The district court's dismissal of Pack's section 2241 petition is hereby modified so that it is with prejudice as to the jurisdictional issue and is without prejudice otherwise, and as so modified is hereby AFFIRMED.
to ship or transport in interstate commerce or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."
"In the case of a person who violates section 922(g) of this title and has three previous convictions by any court refered to in section 922(g) (1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g)."
A COA is not required to appeal the denial of a § 2241 petition. See Ojo v. INS, 106 F.3d 680, 681 (5th Cir. 1997).
Somewhat at odds (at least on first blush) with our conclusion is Moore v. McCotter, 781 F.2d 1089 (5th Cir. 1986), which entertained what the opinion refers to in passing as a § 2241 petition challenging the use of prior state convictions that were used to enhance a current state sentence. Despite its single use of the number "2241," Moore is functionally a 28 U.S.C. § 2254 habeas review of a state conviction. Whether this discrepancy is due to a simple error, or whether Moore is just an aberration, we do not read it to expand the limited scope of § 2241 relief. Moore does not address or acknowledge the appropriateness of § 2241 as contrasted to § 2254 and it appears that was never in issue. There is no indication that the Moore district court did not have § 2254 jurisdiction.
Both §§ 2255 and 2241 require that at the time a prisoner files a motion or petition, he must be "in custody" for the conviction or sentence he wishes to challenge in order for the habeas court to have jurisdiction. Usually, "custody" signifies incarceration or supervised release, but in general it encompasses most restrictions on liberty resulting from a criminal conviction. See Jones v. Cunningham, 83 S. Ct. 373, 375-76 (1963). It is not readily apparent from the record whether Pack's sentences for his 1979 and 1982 convictions were expired at the time he was sentenced under the ACCA in 1989.
We assumed for purposes of the opinion that Clark had unsuccessfully exhausted all of his state remedies. Clark, 203 F.3d at 370. We also held that the § 2255 relief could be defeated on the same bases that § 2254 relief could be if the petitioners were in state custody and sought § 2254 relief therefrom.


text:
The Act of Congress of June 21, 1860, c. 167, confirming the claim,of Preston Beck, Jr., to a grant of land from Mexico made before the Treaty of Guadalupe Hidalgo, by necessary implication contemplated that the grant should be thereafter surveyed, and that such survey was essential for the purpose of definitely segregating the land confirmed from the public domain.
Such survey could only be made by the proper officer of the political department of the government, but notice thereof was not necessary.
Such survey having been made by such officer, and on the trial of this case evidence having been introduced tending to show that land of the defendant in controversy lay outside of the lines of that survey, but within the limits of the designated boundaries of the grant under which the plaintiff claimed, the defendant was entitled to have the jury instructed that if they found from the evidence that the grant had been properly surveyed by the United States, and that that survey had been approved, as the correct location of the grant, and that the land in dispute in the defendant's occupation and possession was outside the limits of the survey, they must find for the defendant, although they might believe that the land so in dispute was within the boundaries of the grant as set forth in the original title papers thereof.
The right of the defendant in error to avail himself of the legal privilege of appeal from the survey to the Secretary of the Interior is not concluded by any expression of opinion by the Court in this case.
and for this purpose may issue notices, summons witnesses, administer oaths, and do and perform all other necessary acts in the premises. He shall make a full report on all such claims as originated before the cession of the territory to the United States by the treaty of Guadalupe Hidalgo, of eighteen hundred and forty-eight, denoting the various grades of title, with his decision as to the validity or invalidity of each of the same under the laws, usages, and customs of the country before its cession to the United States, and shall also make a report in regard to all pueblos existing in the territory, showing the extent and locality of each, stating the number of inhabitants in the said pueblos respectively, and the nature of their titles to the land. Such report to be made according to the form which may be prescribed by the Secretary of the Interior, which report shall be laid before Congress for such action thereon as may be deemed just and proper, with a view to confirm bona fide grants and give full effect to the treaty of eighteen hundred and forty-eight between the United States and Mexico, and, until the final action of Congress on such claims, all lands covered thereby shall be reserved from sale or other disposal by the government, and shall not be subject to the donations granted by the previous provisions of this act."
"SEC. 9. And be it further enacted that full power and authority are hereby given the Secretary of the Interior to issue all needful rules and regulations for fully carrying into effect the several provisions of this act."
said Preston Beck, the 'present claimant,' claims a perfect title to said land by virtue of a grant made on the twenty-third day of December, in the year one thousand eight hundred and twenty-three, by Bartolme Baca, governor and superior political chief of the Province of New Mexico, by and with the advice and approbation of the provincial deputation of the said Province of New Mexico, to Juan Estevan Pino, a citizen of New Mexico, which said grant was made as aforesaid by authority of the laws, usages, and customs of the Republic of Mexico in force at the time, and of the laws and regulations of Spain which were declared and recognized to be in force and effect at that time in the Republic of Mexico. . . ."
"The said Preston Beck claims and further states that he cannot show the quantity of land claimed by him, except as set forth in said grant, as within the above-described well known metes and boundaries, nor can he furnish a plat of survey, as no survey has ever been executed."
"Claimant further states that one Alexander Hatch and about one hundred other persons have settled upon said grant without a title from any person or from any government, and with a full knowledge of the existence of the claim now presented."
"Claimant further states that by virtue of said grant, Juan Estevan Pino was lawfully put in possession of said tract of land by the competent authorities, and settled upon said claim with a large amount of property, and there held possession of the same for the space of twenty-one years, and until expelled by the hostilities of the savage Indian tribes; that upon the death of Juan Estevan Pino, the said tract of land was inherited by his two sons, Justo Pino and Manuel D. Pino, who were his only heirs, and the present claimant claims his title by virtue of deeds from Justo Pino and Gertrudes Roscom, his wife, and from Manuel D. Pino and Josefa Oritz, his wife, all of original grants and deeds of transfer and documentary titles, marked A, B, C, D, E, are herewith filed and made part of this claim."
section of the Act of Congress approved 22 July, 1854, entitled 'An act to establish the offices of surveyor general of New Mexico, Kansas, and Nebraska, to grant donations to actual settlers therein, and for other purposes,' and respectfully asks confirmation by you of his said claim."
"This case was argued very elaborately by the counsel on both sides, and many points concerning boundaries of the grant were introduced in the testimony and the arguments, which this office deems unnecessary at present to notice, as they have no direct reference to the validity of the grant."
"This case has been considered by this office with much attention, and as it is understood that the validity of nearly all the private land claims in this territory depends upon the same principles, all the authorities that could be procured having any bearing on the case have been carefully examined and maturely deliberated. The documents presented in this case are original, and the signatures of the granting officers and conveyors are proven by testimony to be genuine, and the chain of title from the original grantee to the present claimant is complete. . . ."
"The boundaries set forth in the granting decree and natural points, well known to all the community, and in the absence of any survey, which was not required in the grant, are amply sufficient to designate such portions of land as was intended to be severed from the public domain. The evidence presented by the claimant shows that the grantee did have possession of the land granted to him; that he occupied it with his stock, and cultivated certain portions of it, and he continued to do so until he was driven off by the hostile Indians. Not having voluntarily abandoned the land, he did therefore voluntarily forfeit his right to the grant.
[It is evident from the context that the word 'not' has been omitted before the word 'therefore' in the last sentence.]"
"The intention of the provincial deputation and the recommendation of the governor, and no conditions being attached to it, makes the grant a positive and absolute one, and vests in the grantee a title in fee to all the land embraced within the boundaries set forth in the granting decree."
"The objections made by counsel against the validity of the grant are therefore overruled."
"Believing this to be one of the cases coming under the provisions of the Treaty of Guadalupe Hidalgo of 1848, and having strong claims to validity under the decisions of the Supreme Court of the United States in similar cases, the grant made to Juan Estevan Pino to a certain tract of land in the County of San Miguel, and known as the 'Hacienda de San Juan Bautista del Ojito del Rio de las Gallinas,' and of which Preston Beck, Jr., is the present claimant, is hereby approved, and the Congress of the United States is respectfully recommended to cause a patent to be issued to the said Preston Beck, Jr., by the proper department, and cause the same to be surveyed."
"That the private land claims in the Territory of New Mexico, as recommended for confirmation by the surveyor general of that territory, and in his letter to the Commissioner of the General Land Office of the twelfth of January, eighteen hundred and fifty-eight, designated as numbers one, three, four, six, eight, nine, ten, twelve, fourteen, fifteen, sixteen, seventeen, and eighteen, and the claim of E. W. Eaton, not entered on the corrected list of numbers, but standing on the original docket and abstract returns of the surveyor general as number sixteen, be, and they are hereby, confirmed: provided that the claim number nine, in the name of John Scolley and others, shall not be confirmed for more than five square leagues, and that the claim number seventeen, in the name of Cornelio Vigil and Ceran St. Vrain, shall not be confirmed for more than eleven square leagues to each of said claimants."
Preston Beck's claim was designated as "number one" in the report of the surveyor general, and was therefore embraced in this confirmatory act. After the passage of the above act, a survey of the grant in question was made by the officers of the government and approved by the Secretary of the Interior. A statement of facts, signed by both parties, admits that this survey was made "without notice to the owners of said grant, or either of them." It is also admitted that Preston Beck, Jr., in whose name the grant was confirmed, died in 1860, a short time before the passage of the confirmatory act, leaving his estate, in which the above grant was included, to his brother, cousin, nephews, and nieces, all of whom were nonresidents of the Territory of New Mexico. It is conceded by the same statement that at the time of the making and approval of the survey, three of the beneficiaries under the will of Preston Beck, Jr., were minor children, and three others were married women, and that the plaintiff, George W. Stoneroad, was not one of the legatees under said will, but subsequently acquired a third undivided interest in the grant. And it is further admitted that none of the owners of the land have acquiesced in the survey since the same was made and approved.
"said confirmation being absolute, and without any condition whatever, and to the extent of the boundaries given in the original muniments of the title, as the same are correctly copied in said Exhibit A,"
"The jury are instructed that if they find from the evidence in this case that the grant in evidence in this case has been surveyed by the proper authorities of the United States, and that such survey has been approved by the proper authorities of the United States as the correct location of said grant, and that the land in dispute in this case and in the occupation and possession of said defendant is outside the limits of survey, they must find for the defendant, though they may also believe that the said land so in dispute is within the boundaries of said grant, as such boundaries are set forth in the original title papers of said grant, and the recommendation of the surveyor general relative thereto is evidence in this cause."
This instruction was refused, and a verdict was rendered in favor of the plaintiff. The defendant, after an ineffectual attempt to obtain a new trial, took the case by writ of error to the supreme court of the territory. There, the judgment below was affirmed, and the defendant then brought the case here by error.
"The boundaries set forth in the granting decree and natural points, well known to all the community, and in the absence of any survey, which was not required in the grant, are amply sufficient to designate such portions of land as was intended to be severed from the public domain."
"The Congress of the United States is respectfully recommended to cause a patent to be issued to the said Preston Beck, Jr., by the proper department, and cause the same to be surveyed."
It was this recommendation which was acted upon by Congress.
"Undoubtedly private rights of property within the ceded territory were not affected by the change of sovereignty and jurisdiction, and were entitled to protection whether the party had the full and absolute ownership of the land or merely an equitable interest therein which required some further act of the government to vest in him a perfect title. But the duty of providing the mode of securing these rights, and of fulfilling the obligations imposed upon the United States by the treaties belonged to the political department of the government, and Congress might either itself discharge that duty or delegate it to the judicial department. De la Croix v. Chamberlain, 12 Wheat. 599, 25 U. S. 601 -602; Chouteau v. Eckhart, 2 How. 344, 43 U. S. 374 ; Tameling v. United States Freehold Co., 93 U. S. 644 , 93 U. S. 661 ; Botiller v. Dominguez, 130 U. S. 238 ."
"That section provides as follows: 'The Secretary of the Interior is charged with the supervision of public business relating to the following subjects: . . . Second. The public lands, including mines.' Section 453 provides:"
direction of the Secretary of the Interior, all executive duties appertaining to the surveying and sale of the public lands of the United States or in anywise respecting such public lands, and also such as relate to private claims of land, and the issuing of patents for all agents [grants] of land under the authority of the government."
"The Commissioner of the General Land Office, under the direction of the Secretary of the Interior, is authorized to enforce and carry into execution by appropriate regulations every part of the provisions of this title [The Public Lands] not otherwise specially provided for."
"The phrase, 'under the direction of the Secretary of the Interior,' as used in these sections of the statutes, is not meaningless, but was intended as an expression in general terms of the power of the secretary to supervise and control the extensive operations of the Land Department of which he is the head. It means that in the important matters relating to the sale and disposition of the public domain, the surveying of private land claims, and the issuing of patents thereon, and the administration of the trusts devolving upon the government by reason of the laws of Congress or under treaty stipulations respecting the public domain, the Secretary of the Interior is the supervising agent of the government to do justice of all claimants, and preserve the rights of the people of the United states. As was said by the Secretary of the Interior on the application for the recall and cancellation of the patent in this pueblo case (5 L.D. 494):"
"The statutes, in placing the whole business of the department under the supervision of the Secretary, invest him with authority to review, reverse, amend, annul, or affirm all proceedings in the department having for their ultimate object to secure the alienation of any portion of the public lands, or the adjustment of private claims to lands, with a just regard to the rights of the public and of private parties. Such supervision may be exercised by direct orders or by review on appeals. The mode in which the supervision shall be exercised in the absence of statutory direction may be prescribed by such rules and regulations as the secretary may adopt. "
It is not to be presumed that Congress intended, by confirming a grant which had never been surveyed and had therefore never been distinctly separated from the public domain, to exempt it from the survey essential to its accurate segregation and delimitation, especially when this survey was fully provided for by the general law, in accordance with the uniform public policy of the government in dealing with questions of this character. The general rule being to exact a survey, the grant here under consideration could only be exempted from this requirement by an express statement in the act of Congress indicating an intention to depart from the rule in the particular instance. No such intention is anywhere expressed in the confirmatory act. Indeed, the idea that the act, while confirming the title, did not contemplate a survey, for the purpose of marking its limits, amounts to the contention that the public domain itself should remain in part forever unsurveyed and undetermined, since a separation of the private claim from the public domain was essential to the ascertainment of what remained of the latter. Construing, then, the confirmatory act, in connection with the general law of the United States, the recommendations of the surveyor general upon which the confirmation was made, and the essential requirements of the case as presented to Congress, we conclude that a survey of the grant was contemplated by the confirmatory act, and we will determine the rights of the parties in accordance with this conclusion.
"It has often been held by this Court that the judicial tribunals, in the ordinary administration of justice, had no jurisdiction or power to deal with these incipient claims either as to fixing boundaries by survey or for any other purpose, but that claimants were compelled to rely upon Congress, on which power was conferred by the Constitution to dispose of and make all needful rules and regulations respecting the territory and property of the United States. Among these needful regulations was that of providing that these unlocated claims should be surveyed by lawful authority; a consideration that has occupied a prominent place in the legislation of Congress from an early day."
to the political department of the government, and that the action of that department, within the scope of its authority, is unassailable in the courts except by a direct proceeding. Cragin v. Powell, 128 U. S. 691 , 128 U. S. 699 , and cases cited. Under this rule, it must be held that the action of the Land Department in determining that the Von Leicht survey correctly delineated the boundaries of the pueblo grant, as established by the confirmatory decree, is binding in this Court if the department had jurisdiction and power to order that survey."
"1st. That the act of confirmation of 1807 was a present grant, becoming so far operative and complete to convey the legal title when the land was located and surveyed by the United States in 1820, as that an action of ejectment could be maintained on the same."
In Whitney v. Morrow, 112 U. S. 693 , there had been an unquestioned segregation of the property after the confirmation by the commissioners under a special act of Congress by long continued actual possession.

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Aljahmi v. Comm'r of Soc. Sec.
ALI ABDULLAH ALJAHMI, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
This case arises from an application for social security benefits filed by Plaintiff Ali Aljahmi. Defendant Commissioner of Social Security denied the application. ECF No. 8 at 128. Plaintiff then requested a hearing before an Administrative Law Judge. A hearing was held on January 17, 2012, with Administrative Law Judge Patrick J. MacLean presiding. ECF No. 8 at 66. Judge MacLean issued an unfavorable decision on February 21, 2012. Id. at 44. He found that Plaintiff was not disabled after he stopped work. Id. at 47-60. Plaintiff appealed that decision, but his request for review was denied. Id. at 27-30. This appeal followed. The parties have filed cross-motions for summary judgment. ECF Nos. 18, 19.
Due to the length of the record in this case, all citations to the record will be to its electronic filing number and the corresponding page identification number, e.g. ECF No. 8 at ___. Where whole exhibits are referenced they will be so referenced by their exhibit number rather than their page identification number.
At issue is whether Judge MacLean's decision is supported by substantial evidence. Concluding that it is, Magistrate Judge Charles E. Binder issued a report recommending that the Court deny Plaintiff's motion for summary judgment, grant Defendant's motion for summary judgment, and dismiss Plaintiff's complaint. Plaintiff objected to the Report and Recommendation within fourteen (14) days.
Plaintiff raised four objections to the Magistrate's R&R. His first two objections challenge the Magistrate Judge's decision to adopt the ALJ's finding that Aljahmi's treating physician was not credible. Aljahmi's third objection is that the ALJ improperly found that Aljahmi himself was not credible. Lastly, Plaintiff objects that the ALJ did not apply the correct standard at step five of the sequential evaluation process when determining that jobs exist in the national economy that Aljahmi is capable of performing. These objections will be considered in turn.
Plaintiff Ali Aljahmi is a 49 year old man with some high-school level education. ECF No. 8 at 72. He was born in Yemen and came to the United States in 1983. Id. at 73. All of his education had been completed in Yemen save an English class he took upon arriving in the United States. Id. at 72-73. Aljahmi currently resides in Dearborn, Michigan with his family and has lived there for roughly six years. Id. at 74. Since arriving in the United States Aljahmi has worked a number of jobs, most recently as a machine operator. Id. at 239. This job required him to perform a number of physical and manual tasks throughout the day including fairly constant walking, standing, reaching, and grasping. Id.
Aljahmi has not worked since December 5, 2009. Id. at 80. On that date the facility in which he worked was relocated. He claims that the pain he was experiencing on that date was so great that he could not work again. Id. at 80-81. After he stopped working he sought unemployment which he received during 2010 and 2011. Id. at 82.
Aljahmi claims that he is suffering from a host of ailments that makes him unable to work. He asserts that he has pain in his "back, and [his] neck, and [his] arm, and also . . . pain going down to [his] . . . feet[.]" Id. at 83. He has finger pain that makes it difficult for him to grasp and hold things. Id. at 99. He also alleges that he suffers from headaches and an inability to sleep soundly at night due to breathing issues. Id. at 78. On top of his physical ailments he claims he suffers from a number of mental ailments as well, most notably depression. Id. at 80. Aljahmi takes a number of medications for these issues, such as Vicodin for his pain and LVVOX for his depression. Id. at 267. Aljahmi has also treated these ailments with various ameliorative devices, such as canes and braces. Id. at 92-94. He uses a CPAP machine to help him sleep. Id. at 98.
Because of his condition Aljahmi has difficulty doing certain everyday tasks around the house. He is unable to walk more than fifteen minutes at a time. Id. at 91. He cannot bathe or clothe himself without the assistance of his wife. Id. at 89. He also must sit in a chair when he goes to his mosque to pray because he cannot bend to kneel. Id. at 90. He also claims to have lost interest in any hobbies and does not engage with much around the house. Id. at 90-95. His trouble sleeping leads to him feeling tired all day. Id. at 98-99.
Aljahmi began seeking treatment from his current physician, Dr. Sami Abu Farha, in 2005. Id. at 442. Over the years he has seen Dr. Abu Farha a number of times. Dr. Abu Farha has prescribed him various treatments to deal with his pain, including a referral for multiple MRIs and shoulder surgery. Aljahmi's first MRI on October 6, 2009 revealed a torn rotator cuff, for which he later had arthroscopic surgery. ECF No. 8 at 380. Aljahmi claims that his shoulder condition did not improve following surgery. There is no evidence, however, that Aljahmi ever sought further treatment beyond medication for the pain. Aljahmi was referred for an MRI of his back in June, 2010 but he did not complete the MRI until eleven months later. ECF No. 23, Pl. Objections Br. at 11. The MRI ruled out any major causes of pain in his back. ECF No. 8 at 363.
Aljahmi also sought treatment for his sleep and mental disorders. On October 18, 2011 he was prescribed a BiPAP machine to aid with his sleep. Id. at 385. Aljahmi never switched from his CPAP machine to a BiPAP machine. Id. at 98. Aljahmi began seeing a clinical psychiatrist, Dr. Pravin Soni, with whom he had a number of appointments. Id. at 364-78. Dr. Soni recommended a number of steps to help Aljahmi with his mental health issues. One of these was psychotherapy. Id. at 378. Aljahmi, however, never began psychotherapy treatments. Nevertheless, over time, Aljahmi's psychological state improved from his meetings with Dr. Soni. Id., Ex. 14F.
A motion for summary judgment should be granted if the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The focus must be "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, 477 U.S. 242, 251-52 (1986). The moving party has the initial burden of identifying where to look in the record for evidence "which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the opposing party who must set out specific facts showing "a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (citation omitted).
The Court must view the evidence and draw all reasonable inferences in favor of the non-movant and determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "Entry of summary judgment is appropriate 'against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
Pursuant to Federal Rule of Civil Procedure 72, a party may object to and seek review of a Magistrate Judge's report and recommendation. See FED. R. CIV. P. 72(b)(2). If objections are made, "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." FED. R. CIV. P. 72(b)(3). Objections must be stated with specificity. Thomas v. Arn, 474 U.S. 140, 151 (1985) (citation omitted).
De novo review requires at least a review of the evidence before the Magistrate Judge; the Court may not act solely on the basis of a Magistrate Judge's report and recommendation. See Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the evidence, the Court is free to accept, reject, or modify the findings or recommendations of the Magistrate Judge. See Lardie v. Birkett, 221 F. Supp. 2d 806, 807 (E.D. Mich. 2002). If the Court accepts a report and recommendation, the Court is not required to state with specificity what it reviewed; it is sufficient for the Court to state that it engaged in a de novo review of the record.
A district court does not consider the evidence before the administrative law judge de novo. Halsey v. Richardson, 441 F.2d 1230, 1236 (6th Cir. 1971). The Court reviews the administrative law judge's decision to determine whether the findings "are supported by substantial evidence." Tyra v. Sec'y of Health & Human Servs., 896 F.2d 1024, 1028 (6th Cir. 1990) (citing 28 U.S.C. § 405(g)). Substantial evidence "is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). "In determining the existence of substantial evidence, [a] court must examine the administrative record as a whole." Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citing Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 536 (6th Cir. 1981)). A district court does not resolve conflicts of evidence or issues of credibility. Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). If the administrative law judge's decision is supported by substantial evidence, it must be affirmed, even if substantial evidence supports the opposite conclusion. Her v. Commissioner of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).
As noted above, Aljahmi raises four objections to the Magistrate's Report and Recommendation. First, that the ALJ's finding that Dr. Abu Farha was biased was misplaced. Second, that the ALJ's reasons for discrediting Dr. Abu Farha's testimony were improper. Third, that the Magistrate Judge did not correctly review the determination by the ALJ that Aljahmi was not credible. And last, that the ALJ's determination that Aljahmi was capable of performing the tasks required in some jobs was incorrectly adopted.
Aljahmi first objects to the adoption of the ALJ's decision that Aljahmi's treating physician, Dr. Abu Farha was biased in favor of Aljahmi. According to Aljahmi, the ALJ and Magistrate Judge did not properly apply "the principle that the most weight should be given to the opinions of treating physicians in the absence of specific reasons amounting to good cause for rejecting them." ECF No. 23, Pl. Objections Br. at 3 (citing 20 C.F.R. § 404.1527(c)(2)).
Title 20 C.F.R. § 404.1527(c)(2) states that "[g]enerally, we give more weight to opinions from your treating sources[.]" But an ALJ may depart from this guidance where it appears that the physician is crafting an opinion in order to aid the patient in getting disability benefits. See Blevins v. Sec'y of Health and Human Servs., 831 F.2d 293, *4 (6th Cir. 1987) ("These witnesses were also likely to have been 'leaning over backwards to support the application,' and the Secretary need not ignore their 'incentives' in respect to weighing credibility."); see also, e.g., Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007) ("As we previously have noted, "'[t]he patient's regular physician may want to do a favor for a friend and client, and so the treating physician may too quickly find disability.'" (quoting Books v. Chater, 91 F.3d 972 (7th Cir. 1996) (internal quotation marks omitted) (internal citations omitted)). The plaintiff has not brought forward any equally persuasive authority to warrant revisiting the ALJ's opinion.
Aljahmi emphasizes Brown v. Commissioner of Soc. Sec., No. 11-11535, 2012 WL 2847905 (E.D. Mich., June 20, 2012), a case that, he contends, explains why Dr. Abu Farha's opinion should be credited. In Brown, the court rejected the R&R and the ALJ's determination that the treating physician might be biased. The court did so because the ALJ rejected the treating physician's testimony "for three purely speculative reasons." Id. at *14. This decision offers no guidance in this case. Here, the ALJ did not have purely speculative reasons for discounting Dr. Abu Farha's opinion.
Contrary to Aljahmi's assertion that "the ALJ failed to cite specific evidence in the record confirming that such possibilities were realities in the case," ECF No. 23, Pl. Objections Br. at 34, the ALJ did exactly that. The ALJ points specifically to Dr. Abu Farha's deposition where he admits that he will provide a patient with a work excuse letter if the patient so requests. ECF No. 8 at 469-72. When pressed, Dr. Abu Farha stood by his position that "if [Aljahmi] would ask me knowing his work conditions, if he would think like he would be accommodated for that and he asked me, I would [give him a work restriction]." Id. at 472. There is substantial evidence in the record that Dr. Abu Farha sought to offer work restrictions when requested by patients, even if he felt, medically, that they could keep working full time. Plaintiff's first objection is overruled.
It should be emphasized that in his decision the ALJ sweepingly rejected Dr. Abufarha's opinions by: (1) stating they "touch on the claimant's status as disabled, which is an issue reserved for the Commissioner"; . . . (3) claiming "the treatment regimen pursued by Dr. Abufarha was not indicative of someone as limited as assessed"; (4) asserting "it is not clear that Dr. Abufarha was familiar with the definition of 'disability'"; and (5) claiming generically "the treatment notes indicate that Dr. Abufarha relied quite heavily on the subjective report of symptoms and limitations provided by the claimant . . . ."
Number two in this list was identical to his first objection that the ALJ improperly attributed bias to Dr. Abu Farha.
Aljahmi again properly points to the applicability of 20 C.F.R. § 404.1527. But an ALJ, as well as courts, are "not bound by treating physicians' opinions, especially when there is substantial medical evidence to the contrary." Cutlip, 25 F.3d 284, 287 (6th Cir. 1994) (citing Cohen v. Secretary of Health & Human Servs., 964 F.2d 524, 528 (6th Cir.1992); Young v. Secretary of Health & Human Servs., 925 F.2d 146, 151 (6th Cir.1990); Hardaway v. Secretary ofHealth & Human Servs., 823 F.2d 922, 927 (6th Cir.1987)). The opinions of treating physicians "are only accorded great weight when they are supported by sufficient clinical findings and are consistent with the evidence." Id. (citing Young, 925 F.2d at 151).
Plaintiff first objects to the Magistrate Judge adopting the ALJ's opinion that Dr. Abu Farha proffered a conclusion that is reserved to the ALJ. ECF No. 23, Pl. Objections Br. at 5. Aljahmi concedes that the regulation at 20 C.F.R. § 404.1527(d)(1) allocates the decision on whether a claimant is "unable to work" to the ALJ. Id. He contends Dr. Abu Farha made no such determination and that he could offer "opinions on such issues as a claimant's functional limitations" and that "[t]his is precisely what Dr. Abufarha [sic] has done in explaining that Mr. Aljahmi needs to avoid prolonged sitting and standing[.]" Id. Yet this ignores the ALJ's opinion and corresponding reference to the record. The ALJ emphasizes the record at exhibit 9F where Dr. Abu Farha writes "Mr. Aljahmi is unable to work in any job situation." ECF No. 8 at 354. Dr. Abu Farha's opinion is clearly barred by the regulation as that conclusion is delegated to the ALJ.
Next, Aljahmi claims that the ALJ erred in finding that Aljahmi was kept on a conservative treatment regimen. ECF No. 23, Pl. Objections Br. at 5. Aljahmi asserts that his referrals for "MRIs, EMG studies[,] . . . physical therapy and . . . shoulder surgery . . . [were] hardly conservative in nature." Id. But once again, Aljahmi misreads the ALJ's opinion. The ALJ concluded that the treatment regimen following shoulder surgery was conservative in relationship to the claim that Aljahmi's pain did not improve in that period and even got worse. ECF No. 8 at 58. Aljahmi also challenges the ALJ for finding that he only visited Dr. Abu Farha for medication refills, but that accusation is not supported in the ALJ's opinion. The ALJ found that Aljahmi's treatment following arthroscopic surgery was limited to pain medication. He did not hold that obtaining the medication was the sole purpose of his doctor visits. Id.
Third, Aljahmi contests the ALJ's finding that Dr. Abu Farha was not familiar with Social Security's definition of disability "and he was possibly 'referring solely to an inability to perform the claimants past work . . .'" ECF No. 23, Pl. Objections Br. at 7 (citing ECF No. 8 at 58). Aljahmi does not offer any support for this assertion other than claiming "there is no factual basis for this finding" before pivoting to his criticism of the Commissioner's Summary Judgment brief. Id. The Plaintiff's primary point in rebuttal to this claim by the ALJ is that "Dr. Abufarha [sic] set forth functional limitations that are not consistent with the ALJ's RFC finding, which renders conjecture about the degree of the physician's familiarity with the disability definitions immaterial." Id. But even if these bare assertions by Aljahmi are correct, and Dr. Abu Farha was indeed familiar with Social Security's definition of disability, there are still substantial grounds on which the ALJ could have deemed Dr. Abu Farha's testimony not credible and inconsistent with the evidence in the record.
Lastly, Aljahmi takes issue with the ALJ's finding that Dr. Abu Farha relied primarily on his subjective complaints. Id. at 7-8. To rebut this finding Aljahmi directs the Court to objective tests performed by Dr. Abu Farha that corroborate the subjective reports of Aljahmi regarding his condition. Namely, he points to the May 20, 2011 MRI and numerous examination notes that indicate muscle spasms in the neck and back. Id. Plaintiff also points to an EMG study which revealed mild carpal tunnel syndrome and other neuropathy. Id. It bears repeating that while this evidence is indeed in the record, there is no evidence that the ALJ disregarded it. The ALJ merely states, in language quoted by Aljahmi in his objections, that "treatment notes indicate that Dr. Abufarha [sic] relied quite heavily on the subjective report of symptoms and limitations provided by the claimant." ECF No. 8 at 58. The evidence in the record supports this finding by the ALJ and this Court cannot upset that finding in light of the substantial evidence supporting it. ECF No. 8, Exs. 3F, 16F.
While not initially enumerated in his objections, Aljahmi advances one final dispute with the ALJ's credibility finding. He alleges that the ALJ did not comply with Sixth Circuit law because "the ALJ did not reflect sufficient consideration of the factors or comply with the standard described in Blakely." ECF No. 23, Pl. Objections Br. at 9 (citing Blakely v. Commissioner of Soc. Sec., 581 F.3d 399, 406-07 (6th Cir. 2009). Plaintiff concedes, however, that the ALJ need not expressly consider each of the twenty factors in 20 C.F.R. § 404.1527 and § 416.927. See Francis v. Commissioner Social Security Administration, 414 Fed. App'x 802, 804 (6th Cir. 2011). Instead, Aljahmi contends that the ALJ did not include "good reasons" for the weight he gave to Dr. Abu Farha's opinion. Id. But as previously discussed, the ALJ did just that, offering numerous areas in which he disagreed with Dr. Abu Farha's opinion and giving good reasons why he would not fully credit it. In Francis, the court noted that "the ALJ cited the [treating physician] opinion's inconsistency with the objective medical evidence, Francis's conservative treatment and daily activities, and the assessments of Francis's other physicians. Procedurally, the regulations require no more." 414 Fed. App'x at 805. Thus, the bar to satisfy the regulations is not a high one and the ALJ offered ample evidence in support of the weight he gave Dr. Abu Farha's opinions.
Plaintiff argues that "even assuming arguendo that the ALJ did not err in this particular regard, each of the other errors discussed above and in Plaintiff's briefing warrant remand." ECF No. 23, Pl. Objections Br. at 9. The ALJ did not err in factum in this regard or the others. Plaintiff's objection will be overruled.
Aljahmi further objects to the Magistrate Judge's adoption of the ALJ's finding that he was not credible. He claims that "the ALJ selectively cited from the evidence of record and failed to consider the record as a whole, as required." ECF No. 23, Pl. Objections Br. at 9. Aljahmi asserts that "courts have observed the scrutiny applied when reviewing an ALJ's credibility assessment is appropriately increased in cases where the ALJ did not rely on his or her observations of demeanor or other subjective factors." Id. at 10.
Aljahmi is right to emphasize Rogers v. Commissioner of Social Security, 486 F.3d 234 (6th Cir. 2007), for the proposition that an ALJ's credibility determination must find a basis in the record. ECF No. 23, Pl. Objections Br. at 10. But he is wrong to say that "[t]he application of 'special deference' proposed by the R&R is simply not warranted in this case." Id. Rogers, while counseling that credibility determinations not be "based solely upon an intangible or intuitive notion about an individual's credibility," plainly directs that "[i]t is of course for the ALJ, and not the reviewing court, to evaluate the credibility of witnesses." Rogers, 486 F.3d at 247 (internal quotation marks omitted).
Indeed, it is well established that upon review courts are to "accord the ALJ's determinations of credibility great weight and deference." Jones v. Commissioner of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003). This Court is limited to assessing whether the ALJ's explanations for discrediting the Plaintiff are "reasonable and supported by substantial evidence in the record." Id. Thus, Aljahmi errs in stating that a heightened standard of review applies where an ALJ uses objective evidence from the record in making a credibility determination. To the contrary, ALJ's are encouraged to look to the record to substantiate their decisions. But because the record exists for appellate bodies in the same form in which the ALJ considered it, "when . . . determinations rest on objective factors or fundamental implausibilities . . . , appellate courts have greater freedom to review the ALJ's decision." Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000). Greater freedom to review does not equate to the mandatory application of a more stringent standard of review.
Aljahmi nevertheless attempts to explain the areas in the record where the ALJ identified contradictions that lead him to question Aljahmi's credibility. Plaintiff attempts to refute the ALJ's decision by pointing to evidence that the ALJ either failed to consider or attribute sufficient weight. But this is not the standard which a court is to apply in reviewing an ALJ's decision. Rather, "[e]ven if the evidence could also support another conclusion, the decision of the Administrative Law Judge must stand if the evidence could reasonably support the conclusion reached." Her v. Commissioner of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999). Aljahmi would need to show that the ALJ's decision that he was not a credible witness was not supported by substantial evidence. This he cannot do, particularly with regard to Aljahmi's claims about his back and shoulder injuries. The ALJ offers ample evidence to support his conclusion regarding Aljahmi's back condition. The record also supports the ALJ's conclusion that Aljahmi's shoulder had improved, as Plaintiff concedes in his brief. See ECF No. 23, Pl. Objections Br. at 11.
Next, Aljahmi claims that the ALJ erred when it noted that the record was silent as to whether Aljahmi actually followed up on his referrals for physical therapy and an MRI. ECF No. 23, Pl. Objections Br. at 11. First, Plaintiff alleges that the ALJ failed to see that Dr. Abu Farha, in his treatment notes (ECF No. 8 at 305), confirmed physical therapy. This would indeed counter the ALJ's claim that "the record is silent as to if the claimant ever underwent therapy." Id. at 54. But it does not explain the absence of any record from a physical therapist documenting his treatment or any other notes in the record regarding therapy.
Similarly, Aljahmi argues that the ALJ erred when he stated that it was not clear Aljahmi followed up on his MRI referral in June 2010. ECF No. 23, Pl. Objections Br. at 11. Aljahmi points to the record where it shows that he had "cervical MRI studies performed on May 20, 2011." Id. Yet this does not explain the eleven month gap between the referral and the date of the test, which the ALJ could reasonably believe indicated that Aljahmi did not act on the June, 2010 referral.
But even if Aljahmi is correct that there is no evidence in the record to substantiate either of these conclusions by the ALJ, he fails to make a similar showing with respect to the numerous other grounds on which the ALJ relied. Aljahmi's reliance on a case from the Second Circuit for the proposition that the ALJ had an affirmative duty to query Aljahmi about every discrepancy in the record is without merit. In Vincent v. Commissioner of Social Security, 651 F.3d 299 (2d Cir. 2011), the issue was whether Vincent's attorney was entitled to fees under the Equal Access to Justice Act. The district court had held that he was not because it attributed to him omissions in the record that were properly attributable to the ALJ. It is true that it is the ALJ's responsibility to investigate an undeveloped or incomplete record but Vincent does not support the notion that an ALJ's decision is invalid for not doing so.
Even if the ALJ had, as Aljahmi contends, a duty to investigate an incomplete record, that has no bearing on Aljahmi's case. Perhaps the ALJ should have questioned why Dr. Abu Farha noted that Aljahmi was attending physical therapy. But there are a number of other situations that the ALJ emphasizes that are not omissions in the record itself but inconsistencies between what Aljahmi claims are his disabling conditions and the steps he took to remedy them leading up to the ALJ's decision. For example, the record indicates that Aljahmi was prescribed a BiPAP machine, but it is undisputed that he stayed on the CPAP machine. ECF No. 8 at 98, 385. While it may indeed be the responsibility of the ALJ to investigate possible omissions in the record, it is not his responsibility to do so where the record clearly indicates that the claimant simply failed to follow a course of treatment recommended by a physician.
The Plaintiff claims that the ALJ similarly erred in discrediting his psychological issues because he failed to seek treatment for them. Aljahmi points out that "it is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation." ECF No. 23, Pl. Objections Br. at 13 (quoting Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir. 1989). While that is no doubt true, Blankenship is distinguishable. There, the claimant had been found to be "hostile, unfriendly, sullen, and withdrawn" and had a history of not seeking treatment. Blankenship, 874 F.2d at 1117. Here, Aljahmi had visited with two mental health specialists, at least one of which he visited numerous times on referral from Dr. Abu Farha. Furthermore, Aljahmi has given no indication that he struggles with seeking the help of medical professionals.
Aljahmi also presents the inconsistencies the ALJ noted regarding why Aljahmi went off work as another ground for error. ECF No. 23, Pl. Objections Br. at 15. But to repeat: merely indicating that there is evidence weighing against the ALJ's opinion is not sufficient to invalidate that opinion. Plaintiff must show that the ALJ did not rely upon sufficient evidence. With respect to leaving work, the record shows that the plant at which Aljahmi worked closed and that he has not worked since that date. ECF No. 8 at 79-82. Aljahmi testified that he stopped working because of the pain he was experiencing. Id. He also testified, however, that he sought unemployment after the company relocated. Id. Sufficient evidence exists to indicate that but-for the plant moving Plaintiff would have kept working.
Once more, the same rule—that the Plaintiff must show the ALJ did not base his decisions on sufficient evidence—applies to the claim that the ALJ ignored Aljahmi's "solid work history." ECF No. 23, Pl. Objections Br. at 16. Plaintiff cites a series of cases supporting the notion that a strong work history cuts in favor of a credibility finding. See Allen v. Califano, 613 F.2d 139, 147 (6th Cir. 1980), Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983), Hutsell v. Massanari, 259 F.3d 707, 713 (8th Cir. 2001), Dobrowolsky v. Califano, 606 F.3d 403, 409 (3d Cir. 1979). But none of these cases hold that an ALJ must find a claimant with a strong past work history credible. Instead, they merely reaffirm that past work history forms a part of the record on which the ALJ relies and instructs on how the ALJ should weigh such evidence.
Aljahmi cannot show that the ALJ's credibility determination was not based on substantial evidence. As a result, Plaintiff's objection is overruled.
Aljahmi's final objection is that the ALJ failed to meet his burden at step five of the sequential evaluation process. ECF No. 23, Pl. Objections Br. at 17. The thrust of Aljahmi's objection is that the hypothetical posed by the ALJ to the Vocational Expert did not accurately reflect Aljahmi's limitations. First, he claims the ALJ failed to incorporate his reaching restrictions with his left arm and his difficulties with the English language. Second, Plaintiff alleges that the ALJ failed to incorporate all of his concentration, persistence, and pace limitations into the hypothetical.
Plaintiff fails to show that any of the proposed positions conflict with his reaching or language limitations. It is true that all three positions require "bilateral reaching and/or handling." Id. It is also true that all three jobs require some proficiency in the English language. Id. at 18. But the Vocational Expert indicated that her testimony was "consistent and within the scope of the Dictionary of Occupational Titles." ECF No. 8 at 107. To the extent that her opinion conflicted with the Dictionary, however, an "ALJ and consulting vocational experts are not bound by the Dictionary in making disability determinations because the Social Security regulations do not obligate them to rely on the Dictionary's classifications." Wright v. Massanari, 321 F.3d 611, 616 (6th Cir. 2003).
Plaintiff suggests that the Sixth Circuit has also endorsed contrary authority found in the Social Security rule interpretation SSR 00-4P that "[n]either the DOT nor the VE or VS evidence automatically 'trumps' when there is a conflict." 2000 WL 1898704. The two authorities are not in conflict. The ALJ is not required to follow the DOT and the DOT is not binding on the ALJ. That is: the ALJ is free to disregard the DOT for the opinion of a VE if he feels the latter is more accurate or appropriate. Saying that one source does not automatically trump another simply means that the ALJ is not required to use that source when there is a conflict regardless of how appropriate he or she feels that source's conclusions are. Instead, an ALJ is permitted to weigh the conclusions of the two sources and decide in favor of the source that is more appropriate. Furthermore, if there is a conflict, the burden lies with Plaintiff to raise the conflict to the ALJ. SSR 00-4P 2000 WL 1898704. Because Aljahmi "did not bring the conflict to the attention of the ALJ, the ALJ did not need to explain how the conflict was resolved." Martin v. Commissioner of Soc. Sec., 170 F. App'x 369, 374 (6th Cir. 2006).
Plaintiff next claims that the ALJ did not incorporate his own findings of pace, speed, and concentration restrictions into his hypothetical. ECF No. 23, Pl. Objections Br. at 19-20. Aljahmi cites Edwards v. Barnhart, 383 F. Supp. 2d 920, 930-31 (E.D. Mich. 2005), as an example of where this Court rejected a "streamlined hypothetical" that did not properly account for a claimant's "moderate limitation in her ability to concentrate, persist and keep pace[.]" Plaintiff urges that this case guides the analysis of the ALJ's hypothetical.
Setting to one side contrary authority and taking Edwards by itself, it does not square with the facts in the present case. While the ALJ did include in his hypothetical a direction to include "work [that] is limited to simple, routine and repetitive tasks," that was not the sole hypothetical that accounted for Aljahmi's limitations. ECF No. 8 at 103. When Aljahmi's attorney had the opportunity to question the VE he made a number of inquiries into jobs that could accommodate someone who "would have difficulty with attention and concentration for more than an hour or two at a time[.]" Id. at 108. On this record, Plaintiff cannot show that the ALJ failed to consider the relation of his cognitive limitations to possible positions recommended by the VE.
See, e.g., Seach v. Commissioner of Social Security, No. 10-11741, 2011 WL 1792666 at *8 (E.D. Mich. Apr. 6, 2011), report and recommendation adopted, 2011 WL 1792706 (E.D. Mich. May 11, 2011) ("Moreover, decisions in this district reflect the conclusion that a moderate impairment in concentration, persistence, and pace does not necessarily preclude simple, routine, unskilled work. See e.g ., Latarte v. Commissioner of Social Security, 2009 WL 1044836, *3 (E.D.Mich. April 20, 2009); Street v. Commissioner of Soc. Sec., 390 F.Supp.2d 630, 638 (E.D.Mich.2005), citing, Chafin v. Commissioner of Social Security, 2005 WL 994577, *2, 4 (E.D.Mich. April 26, 2005) (ALJ's hypothetical question addressed plaintiff's mental deficiencies sufficiently by limiting him to "simple, unskilled work." Further, although plaintiff had "moderate" deficiencies of concentration, persistence, or pace he could nonetheless perform the work of an assembler, packager, inspector, and security monitor); Lyons v. Commissioner of Social Security, 351 F.Supp.2d 659, 662 (E.D.Mich.2004) ("ALJ took into account [the][p]laintiff's depression ... by including limitations within the hypothetical ... limiting the possible jobs to simple, unskilled, and routine work")").
Because the ALJ did not err in the fifth step of the sequential evaluation process, Aljahmi's fourth objection is overruled.
Accordingly, it is ORDERED that Plaintiff Aljahmi's Objection (ECF No. 23) to Magistrate Judge Binder's Report and Recommendation is OVERRULED.
It is further ORDERED that Magistrate Judge Binder's Report and Recommendation (ECF No. 22) is ADOPTED.
It is further ORDERED that Plaintiff Aljahmi's Motion for Summary Judgment (ECF No. 18) is DENIED.
It is further ORDERED that Defendant Commissioner of Social Security's Motion for Summary Judgment (ECF No. 19) is GRANTED.
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on October 2, 2014.