June 25, 2019

Archives for November 3, 2011

Tenth Circuit: Five-Year-Old Child Properly Denied SSI Benefits for Alleged Asthma Disability

The Tenth Circuit Court of Appeals issued its opinion in Adams v. Astrue on Tuesday, November 1, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner filed an application for SSI benefits on behalf of her son, who was five at the time, alleging that he became disabled in 2004 due to asthma. The agency denied the application initially and on reconsideration. An ALJ later issued a decision denying benefits, finding that the child (1) had not engaged in substantial gainful activity since the filing of his application, (2) his asthma, history of tonsillectomy, and history of bilateral pressure equalization tubes are severe impairments, but (3) he did not have an impairment or combination of impairments that met, medically equaled, or functionally equaled, any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Listing of Impairments or Listing(s)). Petitioner, who is not an attorney, then sought judicial review on behalf of her son. The district court adopted the magistrate judge’s report and recommendation and affirmed the Commissioner’s denial of benefits.

The Court agreed with the decision of the lower courts. The Court found that Petitioner may proceed pro se on behalf of her minor child to challenge in federal court the administrative denial of SSI benefits, but they affirmed the Commissioner’s denial of those benefits. The Court rejected Petitioner’s argument that the ALJ should have found her son’s asthma was “medically equivalent” to adult asthma; it is discretionary whether the adjudicator applies that criteria to a child and the record evidence does not support the suggestion that the child’s asthma was potentially life-threatening. While the ALJ found the child’s and Petitioner’s testimony credible, the ALJ properly rejected the ultimate claim that he was disabled within the meaning of 42 U.S.C. § 1382c(a)(3)(C) because “’the allegations regarding the intensity, duration, and limiting effects of [his] severe impairments and symptoms’ were undercut by his and his mother’s reports of ‘relatively normal physical and mental activities with very little limitation.’”

Want Change? Be Unreasonable (Part 1)

Editor’s Note: This article is the first in a three part series of job search and career transition articles. Part two and part three are also online.

If we want to create something new in our lives – a new career, a new relationship, a new firm, whatever – then we can’t be reasonable about it. That’s a tough idea to swallow for people who make their living being eminently reasonable.

We can agree that George Bernard Shaw was a reasonable man, right? But listen to what he said about this:

The reasonable man adapts himself to the world; the unreasonable one persists in trying to adapt the world to himself. Therefore, all progress depends on the unreasonable man.

From Maxims for Revolutionaries.

“All progress depends on the unreasonable man.” Why? Because reason can only look backward. It makes sense of what is and what has been. The trouble is, new, by definition, is what hasn’t yet been. Therefore reason doesn’t know about it, doesn’t understand it, can’t trust it.

Reason is all about precedent. It can only project and extrapolate. It looks at where we are now and how we got here, then projects its conclusions into the future, reverse engineering what happened in the past so we can do more of it in the future.

We call people who think like that realists – reasonable people – and credit them with being more in touch with reality than daydreamers and visionaries. We trust them not to lead us astray.

But what if we want to be and do something we haven’t yet been and done? What if we’re inspired to do something new?

Inspiration isn’t at all reasonable. It wants idealists, not realists. It wants people who are consumed with an idea about what could be, not what is. People like that don’t give a rip about reverse engineering. Instead, they buy what Einstein said about imagination being more powerful than knowledge. They’re willing to push boundaries, believe what’s considered irrational, illogical, impossible, even irreverent and heretical.

Inspiration wants response, not reason. It hooks our hearts, then reels us in. Want change? First get hooked by an inspired idea. Then get unreasonable.

Kevin Rhodes left a successful 20+ years career in private practice to pursue a creative dream. He has led two workshops for the CBA’s Job Search and Career Transitions Support Group. His next one, scheduled for January 2012, is called Work With Passion: Find Your Fire and Fuel It!

Tenth Circuit: Damage to Property from Poor Workmanship May Qualify As ‘Occurence’ and Liability Coverage Should Apply under Colorado Law

The Tenth Circuit Court of Appeals issued its opinion in Greystone Construction, Inc. v. Nat’l Fire and Marine Ins. Co. on Tuesday, November 1, 2011.

The Tenth Circuit vacated and district court’s decision and remanded. Petitioner claims that property damage caused by a subcontractor’s faulty workmanship is an “occurrence” for purposes of a commercial general liability (CGL) insurance policy. The district court held that Respondent insurance company does not owe Petitioner defenses under their CGL insurance policies, “because the complaints brought against them do not allege covered ‘occurrences’ under the policies’ standard terms. According to the district court, the complaints alleged injuries arising from faulty workmanship, and such injuries are not ‘accidents.'”

On appeal, the Court agreed with Petitioner. The Court held that “because damage to property caused by poor workmanship is generally neither expected nor intended, it may qualify under Colorado law as an occurrence and liability coverage should apply.” However, recovery may still be precluded by a business-risk exclusion or another provision of the policy.

Tenth Circuit: For Charge of RICO Conspiracy, Jury Need Only Be Unanimous as to Types of Predicate Racketeering Acts of Defendant, Not Specific Predicate Acts Themselves

The Tenth Circuit Court of Appeals issued its opinion in United States v. Randall, Jr. on Tuesday, November 1, 2011.

The Tenth Circuit confirmed the district court’s conviction. Petitioner is a former member of the Crips gang and allegedly sold controlled substances for the Crips at various points in time between 1991 and 2007. A jury convicted Petitoiner of one count of conspiracy to commit a Racketeer Influenced and Corrupt Organizations Act (RICO) violation and the district court sentenced him to forty-six months’ imprisonment. Petitioner appeals his conviction, arguing “(1) that the district court abused its discretion by failing to instruct the jury about the affirmative defense of withdrawal from a conspiracy, (2) that the district court plainly erred by failing to instruct the jury that it had to agree unanimously on the predicate acts [Petitioner] agreed to in order to sustain a conviction for conspiracy to commit a RICO violation, and (3) that the cumulative effect of these alleged instructional errors deprived Randall of a fair trial.”

The Court rejected all of Petitioner’s contentions. Withdrawal from a conspiracy requires a conspirator to attempt to undo the wrong that has been done in one of two ways: a co-conspirator can give authorities information with sufficient particularity to enable the authorities to take some action to end the conspiracy, or he can communicate his withdrawal directly to his co-conspirators in a manner that reasonably and effectively notifies the conspirators that he will no longer be included in the conspiracy, in this case the gang, in any way. As Petitioner did not fulfill either of these requirements, the Court found he was not entitled to the jury instruction for the affirmative defense. Also, the Court joined other Circuits in concluding that “for a charge of RICO conspiracy, a jury need only be unanimous as to the types of predicate racketeering acts that the defendant agreed to commit, not to the specific predicate acts themselves.” Lastly, Petitioner failed to establish the existence of a single non-reversible error, let alone two or more non-reversible errors to constitute a cumulative effect, and therefore Petitioner was not deprived of a fair trial.

Tenth Circuit: Lack of Constitutional Right to Employment Does Not Foreclose Retaliation Claim Arising from Loss of Prison Job

The Tenth Circuit Court of Appeals issued its opinion in Milligan v. Archuleta on Tuesday, November 1, 2011.

The Tenth Circuit reversed the district court’s order of dismissal. Petitioner alleges he worked for the prison’s maintenance department plumbing crew for approximately seventeen months without incident. But, in September 2010, his gate pass was pulled, which prevented him from accessing the areas in which the maintenance department was located. He was “allegedly informed that all inmates assigned to work in these areas had been reevaluated for their potential escape risk following the August 22 escape of another inmate and that ‘out of the one-hundred-plus offenders assigned to and working in those areas the Plaintiff fit the profile and was designated as a potential escape risk.'” Petitioner alleges he “was further informed that his job in the maintenance department had not been taken away from him, but he would not be allowed to go back to work or into the assigned area until after an additional security perimeter fence, razor wire, and detection system was installed.” However, after he filed a grievance regarding his designation as a potential escape risk, the facility job board allegedly took his job away and placed him in vocational janitorial school.

Petitioner’s equal protection claim based on the pulling of his gate pass as well as a retaliation claim based on the loss of his job in the maintenance department were dismissed by the district court. However, the Tenth Circuit found this to be in error. While Petitioner’s “complaint was deficient because it did not plead facts sufficient to show that [his] classification as an escape risk lacked a rational basis or a reasonable relation to a legitimate penological interest,” the Court concluded that amendment would not “necessarily be futile or that this claim was [not necessarily] based on an indisputably meritless legal theory.” Additionally, the Court found that just because Petitioner does not have a constitutional right to employment, this would not foreclose his retaliation claim arising from the loss of his prison job.

Tenth Circuit: Some Flexibility Allowed in Describing Racketeering Patterns in Jury Instructions

The Tenth Circuit Court of Appeals issued its opinion in United States v. Knight on Tuesday, November 1, 2011.

The Tenth Circuit affirmed the district court’s conviction. Petitioner was a leader of a neighborhood gang. He and other gang leaders provided crack cocaine and marijuana for younger gang members to sell. Petitioner was convicted on charges of racketeering and drug possession and sentenced to 210 months imprisonment, but argues that the district court plainly erred by “(1) improperly instructing the jury on the pattern of racketeering element under the Racketeer Influenced and Corrupt Organizations Act (RICO); and (2) failing to provide a jury instruction for constructive possession on the drug possession charges.”

The Court disagreed with Petitioner’s contentions, which fail under the plain error standard. “First, as a whole, the jury instructions did not mislead the jury,” and courts are not precluded from issuing additional explanatory language; at least some flexibility is allowed in describing racketeering patterns. Petitioner’s claim of plain error for failing to instruct the jury on the definition of constructive possession was similarly rejected for failing to demonstrate any error that affected his substantial rights. “Although [Petitioner] points to several cases in which courts distinguish between actual and constructive possession, he does not identify any case . . . holding that failure to provide a constructive possession instruction is erroneous.” His conviction was therefore affirmed.

Tenth Circuit: Unpublished Opinions, 11/1/11

On Tuesday, November 1, 2011, the Tenth Circuit Court of Appeals issued five published opinions and five unpublished opinions.


United States v. Logsdon

Williams v. Cherokee Nation Entertainment, L.L.C.

United States v. Sussman

Wheeler v. CIR

Johnson v. Workman

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.