STATE EDUC., ASS'N v. COM

rrect that several engineers testified that the Building Code provision at issue was "subject to interpretation." However, Heery's own mechancial engineering expert, Joseph DiGuglielmo, testified that he knew that AHCA's interpretation of section 421.3.6 was that separate AHUs were required for ASC space and non-ASC space; according to DiGuglielmo, an engineer in Florida who was familiar with this type of issue would know that that was how AHCA interpreted that provision. Heery was bound in this case to exercise "the standard of care used by similar professionals in the community" and also to comply with the requirements of the contracts. Cf. CH2M Hill Southeast, Inc. v. Pinellas Cnty., 698 So. 2d 1238, 1240 (Fla. 2d DCA 1997) ("Generally, the legal duty imposed upon professionals who contract to provide services is to perform such services in accordance with the standard of care used by similar professionals in the community. Additionally, if the professional contracts to perform duties beyond those required by ordinary standards of care, the quality of that performance must comport with the contractual terms."). In short, Heery's design did not provide Lillibridge what it contracted for, and thus Lillibridge is entitled to recover damages.

4. Damages

As noted earlier, Lillibridge ultimately remedied the HVAC issue by having an additional RTU added to the roof of the MOB to serve the non-ASC portion of the fourth floor. Lillibridge established at trial that in doing so, it expended a total of $245,982.37: $450 to disconnect duct work; $66,709 ($62,750 unit price plus $3,959 in sales tax) for the fourth RTU that was added to the roof; $3,336.80 for services of Meinhardt; $3,015.57 for structural engineering services of another firm; and $172,471 for structural modifications to the building so that the fourth RTU could be added. (Joint Exs. 38, 41, 42, 43; Pl.'s Ex. 2). Heery does not contest that Lillibridge spent this amount, but Heery contends that Lillibridge is not entitled to recover all of this amount because if the system had been designed correctly at the beginning, Lillibridge would still have had to expend some money for equipment.

Heery relies on Lochrane Engineering, Inc. v. Willingham Real Growth Investment Fund, Ltd., 552 So. 2d 228 (Fla. 5th DCA 1989), in which the court gave an example of the appropriate measure of damages for an engineering error. The Lochrane court explained that if an engineer who was retained to design a drain field designed a 1,000-square-foot drain field but a 1,200-square-foot drain field was later determined to be required, the engineer would not necessarily be liable to the owner for the full cost of installing the additional 200 feet of drain field because if the engineer had designed the field correctly the first time, the owner would have had to pay for that extra 200 feet anyway. Id. at 232-33. Citing this example, Heery contends that if the fourth RTU had been included in Heery's original design, Lillibridge would have had to pay for it at that point, and thus, argues Heery, Lillibridge should not be able to recoup the cost of the fourth RTU now.

The problem with Heery's argument, however, is that it was not established at trial that the fourth RTU would have been necessary if the HVAC design for the MOB shell had been compliant in the first instance. The evidence was somewhat conflicting on this point.

Philip Taylor of Lillibridge testified that by March 2005 when the final decision was made to downsize the ASC, construction of the MOB shell had been underway for four months and the order for the original RTUs had already been placed. Based on Siciliano's revised calculations for the RTU requirements, Lillibridge stopped the order on the mechanical system and issued a new purchase order to Trane. The chiller was downsized, but the AHU was still intended to serve the top floor. Taylor thinks that if the AHCA requirement of a separate AHU for the rest of the fourth floor had been known in March 2005, Lillibridge could have changed the capacities of the other units to cover the non-ASC fourth floor space.

However, when the problem emerged in 2006 and solutions were sought, both Meinhardt and Heery told Taylor that another RTU would have to be added to serve the non-ASC space. Taylor looked for the least expensive way to resolve the issue. Lillibridge asked Trane if one of the existing RTUs could be upsized by, for example, changing fans, but Trane responded that the capacity could not be increased enough without replacing the unit, which was not practical because of tenants using the air conditioning at that time. They also looked into "stealing" air from the other RTUs, but the capacity was not there to be able to do that; the response from everyone was that adding another RTU was the only way to go at that point.

According to Dick Snyder of Heery, if RTU 3 had been identified originally as being for the ASC space only, the other two RTUs would have had sufficient capacity to service the balance of the building. This testimony from one of Heery's employees suggests that the fourth RTU would not have had to have been added if RTU 3 had been dedicated to only the ASC in the first place.

Siciliano testified that after the problem with AHCA emerged during tenant fit-out, Heery put together a design to add a separate AHU to service the non-ASC areas of the fourth floor. According to Siciliano, Heery did not evaluate whether the other RTUs could serve the balance of the fourth floor as well as the spaces they were intended to serve. Siciliano opined that those units probably would not have been able to do so, but he acknowledged that he did not know whether in fact the existing systems could have been increased to serve the balance of the fourth floor if Heery had interpreted the code in March 2005 the way that the reviewing authority did.

In sum, the evidence was not clear as to whether the fourth RTU would have been needed in the original design or whether the other RTUs could have been modified in some way to serve the non-ASC portion of the fourth floor. Lillibridge argued during closing that it is the Defendants' burden — not Lillibridge's — to establish that the costs that Lillibridge incurred in resolving the issue were duplicative of costs it would have occurred originally. The Court agrees. Lillibridge established what it actually paid to remedy the HVAC issue, and if Defendants believed that only a lesser amount was recoverable, they should have established the extent to which Lillibridge's claimed damages were excessive. They did not do so. Thus, Lillibridge is entitled to a damages award of $245,982.37 on the HVAC issue. B. The GFI Error 1. Overview of the Problem

Like the HVAC error, the second issue — the GFI error — also derives from the presence of the ASC in the MOB. During the tenant fit-out of the ASC, AHCA required that a second level of ground-fault interruption ("GFI") protection be added to the circuit breakers in the main electrical distribution panel of the MOB because the electrical code required this second level of GFI in buildings with ASCs. In order for this second level of GFI protection to be added, eight circuit breakers in the main distribution panel had to be replaced at a cost of $47,729 — $42,729 for replacement of the breakers and $5000 to add a panel section to accommodate the new, larger breakers. (Purchase Order, Joint Ex. 39). Lillibridge seeks to recover nearly all of this amount, asserting that Heery approved installation of a type of equipment that caused Lillibridge to expend significantly more than otherwise would have been necessary to add GFI protection.

2. Trial Evidence

The Project Specifications for electrical equipment in the MOB provided in part: "Switchboards shall be Square D Power-Style." (Joint Ex. 52 at 16300-7). Dick Snyder of Heery explained during his trial testimony that Square D is the manufacturer's name and that this was a sole-source specification, meaning that Square D was the only acceptable vendor for this equipment. The specified Square D equipment had circuit breakers that could accommodate a later addition of GFI protection via a module that easily plugged into the back. In contrast, molded-case type breakers would not have that capability for later addition of GFI protection; instead, molded-case breakers might require replacement in order to add GFI protection.

Although Square D was the specified manufacturer, during construction the general contractor selected switchboard equipment not from Square D but from another manufacturer — Siemens. The Siemens equipment that the contractor proposed included molded-case breakers rather than the type that facilitated GFI additions with a plug-in module. When the Siemens equipment was submitted for Heery's approval, Heery's electrical engineer, Jon Candor, initially rejected it because the specification was for Square D equipment, not Siemens equipment. Candor noted this rejection by indicating "not approved" on the submittal review stamp. (Attach. A to Joint Ex. 8).

After Heery refused to approve the Siemens switchboard that the contractor submitted, a Lillibridge representative, Keith Klingsporn, contacted Heery by telephone, stated that the Siemens board was already being fabricated, and asked whether there was any way that Heery could approve it. Candor then changed the lack of approval on the submittal to "approved as noted," with a note to a Hunton Brady employee that stated in part: "Regarding the submittal for switchboards and panelboards, please ensure the following: . . . The branch circuit breaker feeding Panel N41 should be provided with ground fault protection. (verify that ground fault protection is available as an add on for all branch breakers if necessary). NOTE: The ground fault issue is of concern based on the fact that future tenant projects may be required to meet AHCA approval which states that there be two levels of ground fault protection." With this notation, Candor approved the submission and the Siemens equipment was installed in the building.

Approximately a year later, during tenant fit-out, AHCA required additional GFI protection on all of the circuit breakers in the main distribution panel, "NDP1." Eight molded-case type circuit breakers in NDP1 had to be replaced at a cost of $47,729. If the Square D equipment — with its plug-in module capability — had been installed, the cost to add the GFI protection to the breakers would have been only $5,834. Lillibridge acknowledges that it would have had to pay $5,834 to add the GFI even if the specified Square D equipment had been installed, and it seeks to recover the $41,895 difference as damages for the GFI error.

3. Arguments and Analysis

Heery contends that it cannot be held responsible for the cost difference for adding the GFI protection because it accepted the Siemens product only after Lillibridge asked it to do so. Heery emphasizes that it initially rejected the contractor's submission of the Siemens board based on the sole-source specification for Square D equipment and only indicated its approval after being urged to do so by Lillibridge — which retained substitution-approval authority in the Contract — and after Candor wrote a note regarding the future need for GFI protection. Lillibridge, however, asserts that Heery is responsible for the $41,895 cost difference because Heery did not explain the consequences of the substitution to Lillibridge when the contractor submitted the Siemens equipment and because Heery knew that additional GFI protection was going to be added later. Based on the evidence presented at trial, the Court is persuaded by Lillibridge's argument on this point.

Heery is correct in noting that the Contract did not allow substitutions of equipment without Lillibridge's approval; this was acknowledged by Phillip Taylor at trial. However, Taylor explained that Lillibridge retained substitution-approval power as a means of controlling costs and aesthetics on the project — not as a way to supplant the expertise of the hired consultants. Lillibridge did not review submittals for the purpose of determining whether they met the specification; Lillibridge relied on the architects and engineers to do that. It remained the responsibility of the design professionals hired for the project to determine whether product submittals were appropriate and should be approved.

Although Heery asserts that it approved the Siemens equipment only at the behest of Lillibridge, it was still Heery — not Lillibridge — that approved the substitution. Dick Snyder testified that a Lillibridge representative called and asked if there was any way that Heery could approve the substitution — not that the representative directed Heery to go ahead and approve it because Lillibridge said so. The question asked by the Lillibridge representative, as recounted by Snyder, still called for Heery to make a determination as to the propriety of the substitution. Heery then wrote a note regarding the future need for ground fault protection and approved the substitution of the Siemens product.

There are several problems with Heery's attempted reliance on Candor's note, however. First, it was far from clear at trial that the note was received by Lillibridge at any meaningful time. The note was written to a Hunton Brady representative, and as explained by Snyder, the note would alert a successor engineer doing work in the building that he needed to be prepared to look at that particular item; according to Snyder, the engineer responsible for the tenant fit-out would have to verify that ground fault was available as an add on. Snyder felt that Heery's note indicated to a future engineer on the project that ground fault could be an issue. The note was directed to a future engineer, not to Lillibridge. There was no testimony that the note was seen by anyone at Lillibridge at the time of the substitution. Philip Taylor did not recall seeing the note at the time, though he did testify that the note was in Lillibridge's project file when the issue came to a head a year later.

Even if Candor's note had been given to Lillibridge at the time, the note does not convey the significance of the equipment substitution. Taylor explained that a second level of GFI was not added at the time the MOB was constructed because Lillibridge was under the impression that it could be added later without significant additional cost — as would have been the case if the Square D switchboard had been installed. Candor's note "to a future engineer" did not apprise Lillibridge of the financial ramifications of using this type of switchboard instead of the item called for in the specifications; the note does not explain that the breakers would have to be replaced later in order for GFI protection to be added. As acknowledged by Snyder at trial, Heery never advised Lillibridge or even Hunton Brady what the cost would be to replace the Siemens equipment later when a second level of ground fault protection needed to be added. Taylor credibly testified that if Lillibridge had known that the breakers would have to be completely replaced later, the Siemens substitution would not have been allowed.

Heery clearly understood that the breakers in the Siemens panel did not have the same plug-in capability as the Square D product, but Lillibridge did not — until a year later, when it had to spend more than $40,000 to replace eight circuit breakers. In sum, Heery approved installation of a product that was not the equivalent of what was specified and which caused significant increased cost to Lillibridge. Lillibridge has established entitlement to damages of $41,895 with regard to this error. C. The Porte Cochère Lighting Error

There was also testimony at trial regarding a change to section 517.17 of the National Electric Code that affected the GFI protection requirements for the building. There was testimony that under the 2002 version of the NEC, the only breakers in the main panel that needed additional GFI protection were those feeding the ASC, but under the 2005 version, all breakers in the main panel needed the additional protection. Thus, Heery asserts that the code change in the interim between the MOB construction and the tenant build-out created this issue. However, the problem was created when Heery allowed the Siemens equipment to be installed, knowing that the future ASC would require more GFI protection. Although the code change may have increased the number of breakers that had to be replaced — the remedy for the problem — the code change did not affect the creation of the problem by Heery in the first instance. The Siemens board would have resulted in avoidable increased expense to Lillibridge under either version of the NEC; the new code merely increased the cost of the remedy, and the Court finds that Lillibridge may properly recover the full amount of the difference in the cost of upgrading the GFI protection.

The third and final issue pertains to pendant light fixtures that were hung in the porte cochère area outside the MOB. These hanging fixtures with 36-inch stems were struck by delivery trucks shortly after the building opened. As a result, the fixtures were broken and had to be replaced. Lillibridge faults Defendants for the lighting specification and seeks to recover the $5480 that it paid to replace these fixtures. Defendants, on the other hand, contend that the clearance and hanging of the fixtures is a "means and methods issue" that was the responsibility of the general contractor on the site. The Court concludes that Lillibridge failed to establish at trial that either of the Defendants was responsible for the porte cochère fixture problem, and thus Lillibridge shall recover no damages in connection with this issue.

The trial testimony established that Robert Stern, the initial architect for the MOB, had recommended some light fixtures for the exterior of the MOB that would match those of the adjacent hospital. Heery took Stern's specifications and put them on Heery's schedules so that the contractor knew what to purchase. However, the fixture that Stern specified was discontinued, and the contractor then submitted a Request for Information ("RFI") to Hunton Brady, which in turn submitted it to Heery, to find a substitute fixture that would keep the desired look. (Joint Ex. 19). A Heery engineer responded to that RFI by noting that substitutions were being reviewed by the architect, (see Joint Ex. 19), and there is no evidence that Heery was ever involved with these light fixtures again in any way.

Hunton Brady did specify substitute light fixtures in response to the RFI. (See Joint Ex. 44). However, Lillibridge did not establish that this act renders Hunton Brady at fault for the improper clearance. Lillibridge asserts that no clearance was specified for the fixtures and that thus Hunton Brady's error was an omission rather than an affirmative act. However, the most that the trial evidence established was that Hunton Brady specified an aesthetically similar fixture to substitute for the one that Stern had originally selected but which was discontinued. No evidence was presented as to whose responsibility it was to assure proper clearances, nor was evidence presented as to the dimensions of the original fixtures that had been specified by Stern. As far as the Court can tell, Hunton Brady merely selected an equivalent light fixture to what had previously been chosen. This does not render Hunton Brady responsible for the cost of replacing the damaged fixtures.

In sum, the issue may have been a "means and methods" issue for the contractor or an issue as to responsibility for specifying clearances in the porte cochère area. The Court cannot determine which, but it does determine that Lillibridge did not establish that either of these Defendants bears responsibility for the problem.

III. Theories of Recovery

As earlier noted, Lillibridge alleged five counts in its Complaint, four of which remain: a breach of contract claim against Hunton Brady (Count I); a breach of contract claim against Heery (Count III); a negligent design claim against Heery (Count IV); and a negligent misrepresentation claim against Heery (Count V). While Count V pertains specifically to the alleged misrepresentation made by a Heery representative to Philip Taylor during a meeting, the other three counts relate more generally and collectively to the three errors discussed above. The viability of Lillibridge's theories of recovery must be analyzed on a count-by-count basis.

A. Count I — Breach of Contract Against Hunton Brady

In Count I of the Complaint, Lillibridge brings a claim of breach of contract against Hunton Brady. Lillibridge alleges that Hunton Brady breached the main Contract by, inter alia, "failing to provide Lillibridge with mechanical, electrical and lighting plans, specifications and designs that comply with all applicable codes and are otherwise proper for inclusion and construction in the Project." (Compl. ¶ 48). Hunton Brady asserts that it cannot be held responsible for Heery's errors, but the Court disagrees.

The Contract obligated Hunton Brady to provide Lillibridge with "structural, architectural, electrical, mechanical and plumbing plans," (Contract at "Page 1 of 11"), and required Hunton Brady and its consultants to "review all shop drawings and submittals for compliance with the information given and the design concept expressed in the Construction Drawings during the construction phase of the Project," (id. at "Page 3 of 11"). Although the Contract contemplated that Hunton Brady would retain consultants — including an engineering consultant — in order to comply with its obligations, Hunton Brady remained contractually obligated to provide these services nonetheless. As discussed earlier, because of the HVAC error — a problem with the mechanical plans — and the GFI error — a problem with conformity of the installed electrical equipment to the intended purpose of the building — Lillibridge did not receive a MOB suitable for its intended partial use as an ASC as it was promised in the Contract. Thus, the Contract was breached. Cf. Owings v. Rose, 497 P.2d 1183, 1186 (Or. 1972) (noting that architects agreed in their contract "to render all architectural and engineering services necessary in the design of the new plant and were thus obligated to furnish . . . engineering service of reasonable quality"; thus, architects were liable even though they were not personally at fault where engineering services were defective). The fact that Hunton Brady is liable for breach of contract, however, does not leave Hunton Brady without recourse. Hunton Brady has brought a crossclaim against Heery for indemnity, which is discussed later.

B. Count III — Breach of Contract Against Heery

In Count III, Lillibridge brings a breach of contract claim against Heery. It is undisputed that Lillibridge and Heery did not directly enter into a contract with one another. Consequently, Lillibridge's breach of contract claim against Heery is brought on the basis that Lillibridge is allegedly an intended, rather than incidental, beneficiary of the Subcontract between Hunton Brady and Heery.

"`A third party is an intended beneficiary, and thus able to sue on a contract, only if the parties to the contract intended to primarily and directly benefit the third party.'" Cigna Fire Underwriters Ins. Co. v. Leonard, 645 So. 2d 28, 29 (Fla. 4th DCA 1994) (quoting Md. Cas. Co. v. State Dep't of Gen. Servs., 489 So. 2d 57, 58 (Fla. 2d DCA 1986)). Thus, "`[t]he right of a third party beneficiary to sue under a contract is recognized in Florida, but that right is limited to those situations where the provisions of the contract clearly show an intention primarily and directly to benefit the individual bringing the suit or to a class of persons to which he claims to belong as a third party beneficiary.'" Id. (quoting Sec. Mut. Cas. Co. v. Pacura, 402 So. 2d 1266, 1267 (Fla. 3d DCA 1981)).

The parties have not extensively addressed the issue of whether Lillibridge is an intended third party beneficiary of the Subcontract. In its motion for summary judgment, Heery argued that Lillibridge was not such a beneficiary only on the basis that the main Contract had been entered into between MMBC and Hunton Brady rather than Lillibridge and Hunton Brady. The Court rejected that argument, noting that Heery had not cited any authority for the proposition that a successor in interest would not acquire the same status as its predecessor. (See Order, Doc. 67, at 6-7).

Generally, an owner or contractor is not regarded as an intended third-party beneficiary of a subcontract. See, e.g.,J.W. Hodges Drywall, Inc. v. Mizner Falls LLP, 865 So. 2d 681, 682 (Fla. 4th DCA 2004) ("Nor is a property owner generally considered a third party beneficiary of a contract between a general contractor and a subcontractor."); accord Horizon Images, Inc. v. Delta Color Graphics, Inc., 639 So. 2d 186, 187 (Fla. 4th DCA 1994) ("Our reversal should not be construed as a holding that one who purchases a product from a contractor, produced in part by subcontractors, can always sue the subcontractors as a third party beneficiary, because this is not the law.").

On similar facts, Florida's Second District Court of Appeal rejected an attempt by a municipality to assert third-party beneficiary status against an engineering firm that had subcontracted with an architectural firm with whom the municipality was in direct privity. In City of Tampa v. Thornton-Tomasetti, P.C., 646 So. 2d 279 (Fla. 2d DCA 1994), the court noted that Florida "courts have been reluctant to expand the privity exception to an incidental third party beneficiary, such as the City" and that that "[i]t is not enough that the professional services ultimately rendered accrue to the owner." Id. at 282-83. Emphasizing that "[t]he intention of the contracting parties, gleaned from the contract itself, is determinative" and finding that "[i]t is evident from the agreements that the [engineering] consultants' contractual responsibilities were confined to the architects and did not extend to the city," the Thornton-Tomasetti court concluded that "[a]t best, the City was a remote or incidental beneficiary of the consultants' obligations to the architects." Id. at 282-83. The court affirmed dismissal of the City's breach-of-contract claim against the engineering firm.

The same result must obtain here. Lillibridge has not established that it enjoys intended third-party beneficiary status with regard to the Subcontract. Although Lillibridge was certainly an incidental beneficiary of the Subcontract, the intention of the parties to the Subcontract — Hunton Brady and Heery — as expressed in the document does not support third-party beneficiary status for Lillibridge. The Subcontract expressly states: "Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either [Hunton Brady] or [Heery]." (Subcontract at 13). Although the Subcontract does incorporate the main Contract, such incorporation serves to define the project and the scope of Heery's obligations to Hunton Brady — not to render Lillibridge an intended third-party beneficiary. In light of the express provision in the Subcontract disavowing creation of contract rights in favor of any third party, the Court concludes that Lillibridge may not recover from Heery directly for breach of contract on a third-party beneficiary theory.

C. Counts IV and V — Negligent Design and Negligent Misrepresentation Against Heery

In Count IV, Lillibridge alleges a claim of negligent design against Heery, and in Count V, Lillibridge makes a claim of negligent misrepresentation against Heery based on the statement allegedly made during a meeting by a Heery employee — either Snyder or Siciliano — regarding the propriety of one AHU serving both ASC space and non-ASC space. Both of these claims, however, are duplicative of the breach of contract claims already alleged by Lillibridge. The negligence that is alleged is the same conduct that is alleged to have amounted to a breach of contract, and the same economic losses are sought. For example, as noted by Heery, the negligent misrepresentation claim does not allege a misrepresentation independent of Heery's obligations under the Subcontract and thus is not actionable as a negligence claim. Cf. Vesta Constr. Design, L.L.C. v. Lotspeich Assocs., Inc., 974 So. 2d 1176, 1181 (Fla. 5th DCA 2008) (noting that "a distinction is drawn between misrepresentations that are directly related to the breaching party's performance of the contract and those which are independent of the contract"). And, Lillibridge may not overcome its lack of third-party beneficiary status by calling a breach of contract claim a negligence claim. See Thornton-Tomasetti, 646 So. 2d at 282 (finding that City could not sue engineering firm for negligence and that "only the architects were answerable to the City for deficiencies in design or performance").

The evidence was conflicting on whether this statement was made; Taylor testified that it was made, but neither Cole, Snyder, nor Siciliano recalled such a statement being made at a meeting. The Court need not resolve this conflicting evidence, however, because this claim is duplicative of the others; the negligence alleged is part and parcel of the alleged breach of contractual duties.

This case is clearly a contract-based case, and the negligence counts are duplicative of the breach of contract counts. Here, there were two agreements — the main Contract between Lillibridge and Hunton Brady and the Subcontract between Hunton Brady and Heery — that cover the MOB project. The errors are derived from obligations imposed by the contracts and not from any other source. Under these circumstances, negligence counts will not lie. See, e.g., Weimar v. Yacht Club Point Estates, Inc., 223 So. 2d 100, 103 (Fla. 4th DCA 1969) ("[N]o cause of action in tort can arise from a breach of duty existing by virtue of contract."); accord Elec. Sec. Sys. Corp. v. S. Bell Tel. Tel. Co., 482 So. 2d 518, 519 (Fla. 3d DCA 1986) ("It is only when the breach of contract is attended by some additional conduct which amounts to an independent tort that such breach can constitute negligence."). Thus, Lillibridge is not entitled to any relief on the negligence counts set forth in Count IV or V, and any recovery it obtains must be on its breach of contract claim against Hunton Brady in Count I.

This reasoning would apply as well to the negligence count against Hunton Brady in Count II. However, Lillibridge has already voluntarily dismissed that count.

D. Hunton Brady's Crossclaim Against Heery

Hunton Brady has brought a crossclaim against Heery for common law indemnity, asserting that "[s]hould it be found that Hunton Brady is liable to Plaintiff, that liability is only vicarious, constructive, derivative or technical and arises because of the special relationship between Hunton Brady and Heery." (Am. Cross-cl., Doc. 15, at 3). "In order to prevail on a common law indemnity claim, the following two-pronged test must be satisfied: (1) the party seeking indemnity (the indemnitee) must be without fault and its liability must be solely vicarious for the wrongdoing of another, and (2) the party against whom indemnity is sought (the indemnitor) must be wholly at fault." Heapy Eng'g, LLP v. Pure Lodging, Ltd., 849 So. 2d 424, 425 (Fla. 1st DCA 2003).

The evidence at trial established that the errors that caused damage to Lillibridge — the HVAC error and the GFI error — were the errors of Heery, not of Hunton Brady. There was no evidence that Hunton Brady was at fault with regard to the HVAC error or the GFI error, and Hunton Brady was entitled to rely on the expertise of Heery with regard to those issues. Thus, Hunton Brady's liability to Lillibridge is merely derivative, and Hunton Brady is entitled to be indemnified by Heery for the sums it owes to Lillibridge. See, e.g., Owings, 497 P.2d at 1186-87 (affirming award of indemnity to architect against structural engineer that it hired as a consultant, where architect had settled claim with owner regarding cracks in concrete floor).

IV. Motions

A. Hunton Brady's Rule 52(c) Motion

On the third day of trial, after Lillibridge had rested its case, Hunton Brady moved for a judgment on partial findings pursuant to Federal Rule of Civil Procedure 52(c). This rule provides in pertinent part that "[i]f a party has been fully heard on an issue during a nonjury trial and the court finds against the party on that issue, the court may enter judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue." The Court took Hunton Brady's motion — which raised four distinct issues — under advisement, and the following ruling is now issued.

The motion was made and argued orally, and a written motion (Doc. 79) was also filed.

The written motion asserts a fifth argument — that there was no evidence that Hunton Brady breached the architectural standard of care — however, Lillibridge dismissed the professional negligence claim against Hunton Brady before the motion was argued in court, and that portion of the written motion was rendered moot.

1. Statute of Limitations

Hunton Brady first asserts entitlement to judgment in its favor based on the statute of limitations. Hunton Brady argues that the case is barred by the two-year statute of limitations set forth in paragraph 95.11(4)(a), Florida Statutes. Lillibridge, however, asserts that the four-year limitations period of paragraph 95.11(3)(c), Florida Statutes, is the appropriate limitations period and that thus the case was timely filed.

Paragraph 95.11(4)(a), upon which Hunton Brady relies, provides that "[a]n action for professional malpractice, other than medical malpractice, whether founded on contract or tort," must be brought within two years, "provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence." This two-year limitations period is limited, however, "to persons in privity with the professional." Id. The provision on which Lillibridge relies — paragraph 95.11(3)(c) — provides that "[a]n action founded on the design, planning, or construction of an improvement to real property" must be brought within four years, "with the time running from the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest; except that, when the action involves a latent defect, the time runs from the time the defect was discovered or should have been discovered with the exercise of reasonable diligence." § 95.11(3)(c), Fla. Stat.

In arguing that paragraph (4)(a) governs this case, Hunton Brady relies on two cases. First, Hunton Brady cites Sheils v. Jack Eckerd Corp., 560 So. 2d 361, 363 (Fla. 2d DCA 1990), for the principle that "a specific statute of limitations addressing itself to a specific matter takes precedence over a more general statute of limitations even though the specific statute provides for a shorter period of limitations." Second, Hunton Brady citesBaker County Medical Services, Inc. v. Summit Smith L.L.C., No. 3:05-cv-541-J-33HTS, 2008 WL 2245587, at *14 (M.D. Fla. May 29, 2008) (Covington, J.), a case involving the design, furnishing, and installation of an HVAC system in a hospital in which the court found that the two-year professional malpractice limitation in paragraph (4)(a) was a "more specific statute" than paragraph (3)(c) and applied that shorter period in finding some claims barred. Lillibridge responds that the Baker court erred in its analysis of this point and that Florida courts — to which this Court must defer on issues of state law — have repeatedly applied paragraph (3)(c) rather than (4)(a) in suits against architects and engineers. This Court agrees with Lillibridge.

In applying state law, this Court, as a federal court situated in Florida, "must follow the decisions of the Florida Supreme Court and Florida's intermediate appellate courts." Prime Ins. Syndicate, Inc. v. Soil Tech Distribs., Inc., 270 F. App'x 962, 964 (11th Cir. 2008).

The discussion in the text assumes for the sake of argument that this case can be characterized as a "professional malpractice" case against Hunton Brady at this point at all. The negligent design count against Hunton Brady has been dismissed, and Lillibridge does not allege the Hunton Brady breached the architectural standard of care — only that the Contract was breached due to problems with Heery's provision of engineering services.

In School Board of Seminole County v. GAF Corp., 413 So. 2d 1208 (Fla. 5th DCA 1982), the school board appealed the trial court's determination that its claims against an architect with whom it had contracted were barred by the four-year statute of limitations in paragraph (3)(c). The Fifth District Court of Appeal agreed with the lower court's determination that paragraph (3)(c) — rather than paragraph (4)(a) — applied, expressly stating that "[t]he language of the four-year statute is much more specifically applicable to these suits against [the architect] than the two-year statute, which generally references `professional malpractice' suits." Id. at 1210. The court then reversed the trial court's grant of summary judgment against the School Board, finding that genuine issues of material fact remained with regard to the running of the statute. In the appeal of the Fifth District Court of Appeal's decision, the Supreme Court of Florida stated in a footnote: "[The architect] argues that the 2-year statute of limitations in § 95.11(4)(a) . . . should apply. Both the trial court and the fifth district found the 4-year statute applicable, and we agree with the district court that the language of (3)(c), rather than (4)(a), is more specifically applicable to this case." Kelley v. Sch. Bd. of Seminole County, 435 So. 2d 804, 805 n. 2 (Fla. 1983).

In response to Lillibridge's reliance on Kelley, Hunton Brady's counsel argued in court that the Kelley case is "almost thirty years old," that the court was not presented with a question of whether a two-year or four-year statute applied, and that the statement relied upon by Lillibridge was "only a footnote." However, regardless of how "old" the case is or whether this statement appeared in a footnote or the text of the opinion, the Kelley court expressly agreed with the Fifth District Court of Appeal's determination of which limitations period applied. Moreover, even assuming that the Supreme Court's statement in Kelley was not clear enough on this point, the statement of the Fifth District certainly was, and its ruling would bind this Court in any event. See McMahan v. Toto, 311 F.3d 1077, 1080 (11th Cir. 2002) ("[A]bsent a decision from the state supreme court on an issue of state law, [federal courts in Florida] are bound to follow decisions of the state's intermediate appellate courts unless there is some persuasive indication that the highest court of the state would decide the issue differently.").

Additionally, the Supreme Court of Florida suggested in a later case — again, in a footnote — that its view is that paragraph 95.11(3)(c), rather than paragraph 95.11(4)(a), applies to claims against architects. In Pierce v. AALL Insurance Inc., 531 So. 2d 84 (Fla. 1988), the court addressed the issue of whether an insurance agent was a "professional" for purposes of the "professional malpractice" statute of limitations in paragraph 95.11(4)(a). In the course of answering that question in the negative, the court defined "a profession as a vocation requiring as a minimum standard, a college degree in the specified field." Id. at 87. The court then listed examples of such professions — including architecture — but then stated that "[w]hile architecture is a profession under our definition, the statute of limitations for the design and construction of improvements to real property is four years, § 95.11(3)(c)." Id. n. 2. Seemingly, the Court was explaining that even though architecture fits within its definition of "profession" for purposes of paragraph (4)(a), claims against architects are governed by paragraph (3)(c) instead.

Thus, this Court concludes that the law of Florida is that the four-year statute of limitations in paragraph 95.11(3)(c), rather than the two-year statute of limitations in paragraph 95.11(4)(a), applies to actions such as the instant case and that Lillibridge's claims are not time-barred.

2. Independent Contractor

Hunton Brady also argued in its Rule 52(c) motion that it is not responsible for the acts of Heery, an independent contractor. Hunton Brady cites two cases in support of this contention, but neither is germane to this case. In the first, Century Land Development, L.P. v. Weits, No. 07-14377-CIV, 2009 WL 252091, at *4-5 (S.D. Fla. Feb. 2, 2009), the court noted that "[g]enerally, an employer is not liable for the torts of an independent contractor" and then found that a realty company was not vicariously liable for the negligence of a realtor with whom it had entered into an independent contractor agreement. However, the case at bar does not involve an employment setting, and Weits is of no assistance here. In the second, Carrasquillo v. Holiday Carpet Service, Inc., 615 So. 2d 862 (Fla. 3d DCA 1993), an employee of a hotel tripped and fell on some recently-installed carpet at the hotel and sued the general contractor who had hired an independent contractor to install the carpet. The court found the general contractor not liable for the subcontractor's negligence, but this result does not aid Hunton Brady here. TheCarrasquillo court noted that "the mere fact that there is a contract does not create a nondelegable duty vis-a-vis third persons," id. at 863, and that case obviously involved personal injury by a third party rather than a dispute regarding quality of services provided as between contracting parties.

The Carrasquillo court distinguished Mills v. Krauss, 114 So. 2d 817 (Fla. 2d DCA 1959), a case which is more on point. InMills, a general contractor who had been hired to perform repair work at a hotel was sued by the hotel when the roof leaked and caused damage. The general contractor settled with the hotel and then sued its roofing subcontractor. The Mills court reversed the trial court's ruling that the general contractor was not entitled to indemnification, holding that "the duty of a general contractor to use due care in repairing the premises of another, insofar as it is applicable to the owner of the premises, is a nondelegable duty which may not be committed to an independent contractor; and the latter will be deemed to be the employee of the general contractor, for whose failure to use due care in repairing said premises the general contractor will be held responsible." Id. at 820. Continuing, the court explained: "The general contractor, having undertaken to repair the premises of another, whether by his own employees or through an independent contractor or other agents, is under a duty to the owner of the premises by virtue of a relationship created by the general contract to see to it that due care is used in repairing the premises. This contractual responsibility of the general contractor to the owner cannot be delegated to a third person in such manner as to relieve the general contractor of liability for violation of his duty in that behalf." Id.

Hunton Brady argues that it delegated — with Lillibridge's consent and, indeed, at Lillibridge's direction — the responsibility for engineering services under the main contract to Heery. Hunton Brady contends that the engineering duty was thus delegable rather than nondelegable, rendering Carrasquillo applicable. However, this case is much more like Mills thanCarrasquillo, which involved a tort suit by a third party who suffered personal injury rather than a suit by one contracting party against another for economic damages based on services provided pursuant to the contract.

Clearly, it was understood by the parties that Hunton Brady — which is an architectural firm rather than an engineering firm — would be delegating the engineering work to Heery. However, this does not mean that such delegation absolved Hunton Brady of legal liability under the contract. As discussed earlier in this Order, Hunton Brady obligated itself contractually to provide architectural and engineering services, and its duties as to engineering arise from the contract. It was certainly permitted to engage professional engineers for the engineering portion of the project; however, much like a general contractor hired to perform construction services, one contracting party still may look to the other for a remedy if the services are deficient, and the party held liable as a matter of contract may then seek relief from the party at fault via indemnification, as Hunton Brady has done here. The cases cited by Hunton Brady in this second portion of its Rule 52(c) motion do not support its position that it may not be held accountable under the Contract.

3. Breach of Contract

In the third portion of its Rule 52(c) motion, Hunton Brady argues that Lillibridge failed to present evidence that Hunton Brady breached its contract with Lillibridge. However, as already discussed, the Court rejects this assertion. Hunton Brady's Rule 52(c) motion is also denied on this point.

4. Reliance on OCBD

Finally, Hunton Brady argues that it was entitled to rely on the approval of the shell and core design documents by OCBD. As discussed earlier, however, the contract contemplated and called for a specific use for the building — an ASC — and approval by OCBD does not absolve Hunton Brady of liability under the contract. This last argument of Hunton Brady's Rule 52(c) motion is therefore rejected.

B. Heery's Rule 52(c) Motion

Heery also filed a Rule 52(c) motion on the third day of trial. (Doc. 80). In the motion, Heery asserts that Lillibridge failed to establish the required elements of each of its causes of action against Heery — breach of contract, negligent design, and negligent misrepresentation. As discussed earlier, Lillibridge is not being awarded relief directly against Heery on any of these claims. However, the trial evidence did establish that Heery breached the Subcontract with Hunton Brady by not providing engineering services that resulted in a building suited for its intended purpose. Heery's contention that Lillibridge failed to establish a breach of contract by Heery because Heery's plans were approved by OCBD is, as discussed earlier, rejected, and Heery's motion is denied.

The motion is titled "Motion for Involuntary Dismissal," but Heery's counsel stated in court that the motion is incorrectly labeled and is actually, like Hunton Brady's motion, a motion for judgment on partial findings under Rule 52(c).

V. Conclusion

In accordance with the foregoing, it is ORDERED and ADJUDGED as follows:

1. Defendant Hunton Brady Architects, P.A.'s Motion for Judgment on Partial Findings (Doc. 79) is DENIED in all respects.

2. Defendant Heery Internationals, Inc.'s Motion for Involuntary Dismissal (Doc. 80) is DENIED in all respects.

3. As set forth herein, based on the trial evidence the Court concludes that Plaintiff Lillibridge Healthcare Services, Inc. prevails in part on its breach of contract claim (Count I) against Hunton Brady. Lillibridge prevails insofar as it seeks to recover for the HVAC error and the GFI error. Lillibridge does not prevail on its claim with regard to the porte cochére lighting error. Lillibridge established damages in the amount of $245,982.37 on the HVAC system error and in the amount of $41,895 on the GFI error, for total damages of $287,877.37.

4. The trial evidence establishes that Hunton Brady's crossclaim against Heery for indemnity is well-taken and that Hunton Brady is entitled to be indemnified by Heery for the amount that Hunton Brady is obligated to pay to Lillibridge as a result of Heery's errors.

5. On or before Friday, October 1, 2010, Lillibridge shall, after conferring with Defendants, submit a proposed judgment to the Court, noting the disagreements, if any, of Defendants with regard to the terms thereof.

DONE and ORDERED in Orlando, Florida this 24th day of September, 2010.

ger's syndrome. Dr. Anderson also stated that Plaintiff was under treatment and on psychiatric medications for these conditions. (Tr. 309.)

On April 9, 2004, Dr. Anderson conducted an "urgent" appointment with Plaintiff in response to a letter from Plaintiff's school counselor, Jean Harmon, who expressed extreme concern regarding Plaintiff's behavior. Dr. Anderson ascertained that Plaintiff was in a psychotic state, and was experiencing paranoid delusions, hallucinations, and "formal thought disorder including referential thinking." Dr. Anderson determined that Plaintiff needed acute hospitalization, and immediately admitted Plaintiff to St. Joseph's Health Center for treatment. (Tr. 259.) Dr. Anderson diagnosed Plaintiff with a "psychotic disorder possibly emerging schizophrenia versus bipolar disorder," ADHD, a developmental disorder, and a Global Assessment of Functioning ("GAF") of 30. (Tr. 260.)

A GAF score represents a clinician's judgment of an individual's overall ability to function in social, school, or occupational settings, not including impairments due to physical or environmental limitations. GAF scores of 21-30 reflect behavior that is "considerably influenced" by delusions, hallucinations, serious impairment in communication or judgment, or an inability to function in almost all areas; scores of 31-40 indicate "some" impairment in reality testing or communication or "major" impairment in social, occupational, or school functioning; scores of 41-50 reflect "serious" impairment in these functional areas; scores of 51-60 indicate "moderate" impairment; scores of 61-70 indicate "mild" impairment.Diagnostic Statistical Manual of Mental Disorders (4th ed.) (DSM-IV) at 32-4.

Plaintiff was discharged on April 14, 2004, with a discharge diagnosis of bipolar disorder; ADHD; new onset psychosis, rule out emerging schizophrenia; a developmental disorder; and a GAF of 50. Dr. Anderson determined that Plaintiff was no longer suicidal, homicidal, or psychotic, and while still "somewhat impulsive," was not immediately dangerous. Dr. Anderson also prescribed Seroquel. (Tr. 257-58.)

On May 6, 2004, Plaintiff was again admitted to St. Joseph's Health Center. On admission, Dr. Anderson noted that Plaintiff was "angry, sullen, labile," and prone to unpredictable violent action. Plaintiff's parents indicated that his pattern of behavior had been worsening steadily, his schoolwork had been impacted to the point where he had stopped learning in any effective way, and that he had threatened to harm himself and others. Plaintiff stated that he felt "suicidal because he realize[d] he [wouldn't] be able to join [the] Special Forces." Dr. Anderson diagnosed Plaintiff with bipolar disorder with psychosis, ADD, Asperger's syndrome, and a GAF of 30. (Tr. 248-49.)

During a Youth Social Services Assessment that day, Plaintiff admitted to briefly using marijuana and occasionally using alcohol. Plaintiff stated that he despised his mother, but had a good relationship with his father and brothers, and claimed that he always presented a facade and never expressed his true feelings. The interviewer assessed him as cooperative, with a sad and depressed mood, and jumbled thoughts. The interviewer recommended group therapy and long-term psychiatric care. (Tr. 254-55.)

Plaintiff was discharged on May 15, 2004, with a diagnosis of bipolar disorder, ADHD, and Asperger's syndrome. Dr. Anderson noted that Plaintiff denied auditory hallucinations, and was not suicidal or homicidal. He also noted a vast improvement in Plaintiff's level of paranoia, and assessed a GAF of 50. Plaintiff was prescribed Abilify, Seroquel, Concerta, Celexa, and Depakote, and Plaintiff's parents were instructed to keep the medication locked up and out of his reach. Dr. Anderson's discharge notes also indicated that Plaintiff was discharged to the Marygrove Respite Care Center for one week, after which time he would go to Evangelical Inpatient. (Tr. 246-56.)

Between February 17, 2005 and December 13, 2007, Plaintiff visited L. Joseph Kennington, M.D., on several occasions for various physical conditions, including cough, sore throat, respiratory infection, bronchitis, ear issues, and chest pain. Dr. Kennington instructed Plaintiff to take over-the-counter and prescription medications, and recommended smoking cessation. On March 3, 2005, Plaintiff saw Dr. Kennington and complained of stiffness in his knees, after falling on ice at work. (Tr. 576-90.)

On August 10, 2005, Plaintiff informed Dr. Anderson that he had been fired from Denny's for tardiness. Plaintiff reported that he slept in a lot when he was not working. Dr. Anderson noted that Plaintiff had decreased energy and was not happy; he was cranky, but not explosive. (Tr. 305.)

On August 24, 2005, Plaintiff completed a Health Assessment Questionnaire and claimed that his disability interfered with his ability to work, because he suffered from deep depression, intense death-related nightmares, self-mutilation, anti-social and aggressive behaviors, and had problems with medication compliance. Plaintiff's parents completed the narrative portion of the Questionnaire, and noted that Plaintiff did little other than sleep, work, or play video games; had been fired from his most recent job for tardiness; had a short attention span; and was both physically and verbally violent towards them. His parents also noted that Plaintiff was hospitalized twice for depression and behavioral problems during his junior year of high school, and spent a semester in a locked school system. Plaintiff listed his medications as including Levoxyl, Concerta, Celexa, Abilify, Seroquel, and Depakote. (Tr. 301-2.)

In a letter dated September 2, 2005, Dr. Anderson stated that he began treating Plaintiff in July 2003, and was currently treating Plaintiff for ADHD and bipolar disorder. He listed Plaintiff's medications as including Concerta, Abilify, and Seroquel. He also noted that in addition to seeing Dr. Anderson every couple of months, Plaintiff was seeing Rick Pearl, a therapist, every other week. (Tr. 303.)

On September 8, 2005, Stephen Starr, a counselor for the Missouri Department of Education, Division of Vocational Rehabilitation, certified Plaintiff's eligibility for vocational rehabilitational benefits. (Tr. 300.)

During a March 8, 2006 appointment, Plaintiff informed Dr. Anderson that he was in college, working 15-20 hours per week at McDonald's, and had gotten a concussion from falling down a step at work. Dr. Anderson noted that Plaintiff seemed "somewhat grandiose, impulsive," and that Plaintiff was not taking his Abilify. (Tr. 315.)

On May 7, 2006, Plaintiff's mother completed a Third-Party Function Report. Plaintiff's mother stated that Plaintiff spent most of his time at home sleeping or playing video games, no longer had friends or a social life, and refused to interact with his family. She stated that Plaintiff wore dirty clothes, only showered when hounded, did not do laundry or clean up after himself, and when confronted, got angry and left the house. Plaintiff's mother stated that without his medication, Plaintiff's behavioral problems would manifest within 24 hours, and that Plaintiff would not take his pills unless she physically handed them to him and watched him swallow them. She also stated that Plaintiff needed to be reminded about appointments, or he would not go. She stated that, generally, he only left the house to go to school, to work, or to smoke, but occasionally he disappeared for long periods of time. She also states that he spent a lot of time at a knife/cigarette store, and that she regularly found knives in his room, which she threw away.

Plaintiff's mother stated that before his illness, Plaintiff was in the junior high band and on the high school football team; he was active in church, youth group programs, and Boy Scouts; but he had since dropped all of his activities. She stated that his illness affected his memory, as well as his ability to get along with others, complete tasks, or follow instructions. However, she noted that his attention span varied based upon his desire to cooperate. She stated that he was failing his classes because he did not work or study. She stated that he argued with, and dismissed, supervisors, teachers, and other people of authority, because he felt that he was smarter than anyone else, and that he had lost jobs as a result. Plaintiff's mother stated that he handled stress very poorly. She stated that he needed help with finances because he resented the responsibility of keeping track of them on his own; he refused to deal with paying bills; he did not care about saving money and he spent foolishly, living off of his parents.

Plaintiff's mother stated that his behavior affected the entire family, such that Plaintiff's older brother no longer returned home from college, and his younger brother was afraid of him. She did not believe he could be cared for at home much longer and was investigating alternate living situations. She stated that Plaintiff dreamt about his death nightly, enjoyed trapping the family's cats against their will, and had said that "all he has left is his anger." (Tr. 147-55.)

On May 11, 2006, Plaintiff completed a Function Report in which he stated that when he was not working after school, he did odd jobs at home or relaxed. He stated that he sometimes prepared his own meals, but did so less often than before his illness. He also noted that he now dressed for comfort, not appearance; generally lacked interest; had trouble maintaining good hygiene; and needed reminders to help him with most things, but noted that he did not need help or reminders to take his medication. Plaintiff added that he now had traumatic nightmares and had developed a fear of needles. Plaintiff stated that he often went out walking, driving, and roller-blading; rarely went shopping, and then only for entertainment items and clothing; and had no trouble handling money, but noted a tendency to spend more when depressed.

Plaintiff listed hiking, fencing, martial arts, warfare, and studies on tactics and equipment, as hobbies he did "often and quite well." He also stated that he hung out with friends and went to the park less often, was less active, played fewer sports, and had less energy than before his illness. Plaintiff stated that he had trouble getting along with his parents, and had been told that he was annoying when he was "trying to grab attention."

Plaintiff indicated that his illness affected his concentration, ability to follow instructions, and ability to complete tasks; he was easily distracted. Plaintiff stated that he was able to follow written instructions, but liked to do things his own way, even if the two conflicted. Plaintiff stated that he did not follow oral instructions well because he argued about what he believed were better ways of doing things, and had been fired because of major arguments with managers. Plaintiff stated that he did not like authority figures who controlled through the use of physical or verbal violence. He added that he bottled up his stress, but handled change well, because he had trouble with a "never changing day-to-day life." (Tr. 164-71.)

On July 7, 2006, Dr. Anderson met with Plaintiff and Plaintiff's mother. Plaintiff's mother stated that Plaintiff was rude, and yelled and screamed when she tried to awaken him in the morning. Plaintiff indicated that his goals were to work more hours, continue his education, "his girlfriend Jennifer," and to save enough money to move out of his parents' home. (Tr. 316.)

On August 14, 2006, Arthur C. Littleton, Ph.D., conducted a psychiatric evaluation of Plaintiff, based upon a referral of Plaintiff by Emily Gundy, a Disability Determinations Counselor. Dr. Littleton observed that Plaintiff displayed satisfactory hygiene; engaged in conversation; was alert, attentive and cooperative; and was able to follow simple directions. He noted that Plaintiff was taking medicine for depression and delusions, including Citalopram, Levoxyl, Concerta, and Depakote. Plaintiff's mother reported that Plaintiff received psychiatric and psychological intervention. Dr. Littleton noted that Plaintiff's cognitive abilities were at least average, with intact memory, and reasonably good judgment, insight, and comprehension. He also noted that Plaintiff was at times confused, evidenced a sense of grandeur and denial, and presented symptoms that suggested a depressed mood. Dr. Littleton noted that Plaintiff was competent to manage his own financial affairs. Dr. Littleton diagnosed Plaintiff with Schizoaffective disorder, and a GAF of 60. (Tr. 318-21.)

On August 31, 2006, Judith McGee, Ph.D., a non-treating state consultant, conducted a psychiatric review of Plaintiff. Dr. McGee indicated, in check-box format, that Plaintiff's medical disposition was based upon organic mental disorders, and on affective disorders; and noted that ADHD, a mood disorder, schizophrenia, and bipolar disorder were present. Dr. McGee noted that Plaintiff had a mild limitation of activities of daily living and a moderate limitation maintaining social functioning, concentration, persistence, or pace, but there was insufficient evidence to determine the existence, or extended duration, of repeated episodes of decomposition. She also noted that Plaintiff had been accepted for vocational rehabilitation services for job training, and that Plaintiff retained the ability to do simple work with limited social interaction and some additional supervision. Dr. McGee noted that evidence did not establish the presence of the "C" criteria. (Tr. 322-45.)

Under the Commissioner's regulations, an organic disorder such as ADHD, is presumptively disabling if "A" criteria and "B" criteria are met, or if "C" criteria are met. "A" criteria (medical findings) are met if there is a medically documented persistence of disorientation, memory impairment, perceptual or thinking disturbances, change in personality, disturbance in mood, emotional lability, or loss of measured intellectual ability of at least 15 I.Q. points. "B" criteria (functional limitations) are met if there is a marked functional limitation in at least two of the following four categories: (1) daily living, (2) social functioning, (3) concentration, persistence, or pace, and (4) repeated episodes of decompensation, each of extended duration. "C" criteria are met if the disorder has been of at least two years duration with either (1) repeated episodes of decompensation, (2) such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate, or (3) one or more years inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement. 20 C.F.R. § 404, Pt. 404, Subpt. P, App. 1 ("Appendix 1"), Listing 12.02.
An affective disorder, such as bipolar disorder, is presumptively disabling if "A" criteria and "B" criteria are met, or if "C" criteria are met. "A" criteria (medical findings) are met if there is a medically documented persistence of a depressive, manic, or bipolar syndrome. "B" criteria (functional limitations) are met if there is a marked functional limitation in at least two of the following four categories: (1) daily living, (2) social functioning, (3) concentration, persistence, or pace, and (4) repeated episodes of decompensation, each of extended duration. "C" criteria are met if the disorder has been of at least two years duration with either (1) repeated episodes of decompensation, (2) such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate, or (3) one or more years inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement. Id. at Listing 12.04.
Repeated episodes of decompensation "means three episodes within one year, or an average of once every four months, each lasting for at least two weeks." Id. at Listing 12.00(C)(4).

Also on August 31, 2006, Dr. McGee completed a Mental RFC assessment of Plaintiff. Dr. McGee determined that Plaintiff was moderately limited in his ability to understand and remember detailed instructions; to carry out detailed instructions; to maintain attention and concentration for extended periods; to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; to sustain an ordinary routine without special supervision; to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; to accept instructions and to respond appropriately to criticism from supervisors; and to respond appropriately to changes in the work setting. (Tr. 346-51.)

On December 30, 2006, Plaintiff was admitted to St. John's Mercy Medical Center for self-mutilation of his left arm and left cheek, and exacerbation of his bipolar disorder. Plaintiff stated that he had hurt himself to get his parents' attention. Plaintiff admitted to non-compliance with his Depakote. On admission, Eduardo Garcia-Ferrer, M.D., assessed Plaintiff's GAF at 50. Plaintiff's GAF was assessed at 30 later that day. Plaintiff denied homicidal or suicidal ideation. (Tr. 372-465.)

In a family meeting on December 30, 2006, Plaintiff's parents expressed concern regarding Plaintiff's threats of self-harm, and stated that they did not feel safe having Plaintiff return home. Plaintiff's parents also stated they had spoken to an attorney regarding the possibility of obtaining social security benefits for Plaintiff. During a family meeting on January 1, 2007, Plaintiff became upset and began banging his head against the wall, but stopped when he was told that the behavior might result in a longer hospitalization. On January 3, 2007, Plaintiff complained about the increase in his Depakote dose, but took the medication, and was found vomiting in his bathroom 30 minutes later. Plaintiff was discharged on January 4, 2007, with a diagnosis of bipolar disorder, ADD, Asperger's syndrome, hypothyroidism, and a GAF of 55. (Tr. 372-465.)

On May 10, 2007, Plaintiff was admitted to CenterPointe Hospital after he threatened to take an overdose of pills, and to cut himself. On admission, his thought content was positive for suicidal ideation and paranoid delusions, with poor judgment and insight. Plaintiff's admitting diagnosis was bipolar disorder, ADD, Asperger's syndrome, and a GAF of 30. During Plaintiff's intake assessment, he began yelling and screaming. Plaintiff stated that he had violent dreams about death and self-mutilation; practiced self-mutilation by cutting and stabbing his arms with a screwdriver; talked about wanting to be dead; and believed everyone was against him. Plaintiff dislocated his finger during the interview "for fun." (Tr. 485-96, 507-31.)

In his Comprehensive Intake Assessment, Plaintiff reported that his history of substance abuse included one year of alcohol use, seven years of cannabis use, and a four to five year history of nicotine use. During his hospitalization, Plaintiff's medications were adjusted and he was diagnosed with schizoaffective disorder, Asperger's disorder, hypothyroidism, and a GAF of 30. Plaintiff's Master Treatment Plan noted that Plaintiff's liabilities included poor impulse control, lack of insight, threatening behavior, suicidal ideation, prior suicide attempts, poor communication with family, denial of responsibility, poor judgment, poor coping skills, and a lack of motivation. (Tr. 485-96, 507-31.)

Plaintiff was discharged on May 25, 2007. Plaintiff's discharge diagnosis was bipolar disorder and ADHD, Asperger's syndrome, and a GAF of 50. Dr. Anderson prescribed Concerta, trazodone, Synthroid, Celexa, Depakote, Invega, and Augmentin. At discharge, Plaintiff's parents felt that he could not safely return to their home, and after several unsuccessful attempts by a CenterPointe social worker to arrange for residential placement for Plaintiff, a Salvation Army facility agreed to accept Plaintiff, and his mother agreed to take him there. (Tr. 485-96, 507-31.)

On May 29, 2007, Plaintiff was re-admitted to CenterPointe Hospital with thoughts of suicide and violence. An intake reassessment stated that Plaintiff had attempted to drink cologne, and had surrendered a knife to his mother after confessing his intention to cut himself. Plaintiff also reported experiencing a craving for heroin. It was noted that after Plaintiff's last discharge, he went home and had initially done fairly well, but then became very withdrawn and dysphoric. During a psychosocial assessment of Plaintiff, Plaintiff attributed his suicidal ideation to his self-esteem issues, and believed his mood was the result of withdrawal from the use of illicit drugs. (Tr. 472-84, 498-506.)

Upon readmission, Gregory Mattingly, M.D. performed a psychiatric evaluation on Plaintiff, and noted a history of issues with developmental disabilities, severe problems with depression and paranoia, and infrequent hallucinations. Dr. Mattingly diagnosed Plaintiff with schizoaffective disorder, pervasive developmental disorder, and a GAF of 35. He also noted that Plaintiff's condition was complicated due to the intermittent use of marijuana and other illicit substances. Dr. Mattingly recommended that Plaintiff be placed in a residential long term care treatment facility to stabilize his chronic issues. (Tr. 503-04.)

Plaintiff was discharged on June 6, 2007, with a diagnosis of bipolar disorder, ADHD, Asperger's syndrome, and a GAF of 50. (Tr. 498-99.) On June 7, 2007, Plaintiff was transferred from CenterPointe Hospital's inpatient psychiatric unit to its acute outpatient program, because of the exacerbation of schizoaffective disorder symptoms, and suicidal ideation related to his drug abuse. Pat O'Neil, L.C.S.W., noted that Plaintiff had a seven year history of polysubstance abuse of marijuana, as well as a history of using acid, ecstacy, opium, cocaine, and alcohol, sometimes daily. Mr. O'Neil also noted that Plaintiff had been charged with drug possession, and had a pending court date. At admission, Plaintiff was diagnosed with a GAF of 40. (Tr. 533-47.)

While in the outpatient program, Plaintiff admitted to alcohol and opium use. In group therapy, he needed constant redirection. Plaintiff was discharged on June 27, 2007, at which time he reported decreased feelings of depression and anxiety; he was able to identify triggers to his cravings and depression, and to identify options to his self-defeating behavior. However, Plaintiff resisted utilizing the 12-step program, and wanted to use willpower for his recovery. Plaintiff's discharge diagnosis was schizoaffective disorder, a history of polysubstance abuse, and a GAF of 55. Plaintiff's discharge medications included Invega, Celexa, Synthroid, Concerta, trazodone, and Depakote. (Tr. 533-47.)

Plaintiff and his father met with Dr. Anderson on July 9, 2007, and reported that Plaintiff had been "doing better" since Plaintiff's release from the hospital, but he was still "a little down." Dr. Anderson noted that residential placement was still being sought for Plaintiff. Plaintiff met with Dr. Anderson again on August 8, 2007, and reported feeling more stable, but anxious. Plaintiff stated he was going to weekly Narcotics Anonymous ("NA") meetings, working, and hoping to go back to school. (Tr. 466.)

Between October 17, 2007 and November 5, 2007, Plaintiff was admitted to Community Treatment, Inc. ("COMTREA") for its residential treatment program, because of his addiction to mood altering substances. While at COMTREA, Plaintiff participated in group and individual therapy sessions, and attended Alcoholics Anonymous ("AA") and NA meetings. Linda Boyer of the Department of Mental Health, conducted an assessment of Plaintiff, in conjunction with his admission to COMTREA. Ms. Boyer noted that Plaintiff reported periodic use of opium over the past year, smoking THC within the past 30 days, and smoking marijuana daily until his admission to COMTREA. Upon discharge, Plaintiff was diagnosed with cannabis dependence and a GAF of 45. (Tr. 548-75.)

On December 17, 2007, Dr. Anderson completed a Statement of Dependent Eligibility for United Healthcare, in which he indicated that Plaintiff suffered from bipolar disorder with psychosis, a history of violence, ADHD, and Asperger's syndrome. Dr. Anderson also diagnosed Plaintiff with a GAF of 40. Dr. Anderson stated that Plaintiff was "100% psychiatrically disabled", and "incapable of meaningful work in an open labor market." (Tr. 593.)

On February 1, 2008, Dr. Anderson noted that Plaintiff was doing well, and had a sponsor. Dr. Anderson also discontinued Plaintiff's use of Concerta, and started Plaintiff on Strattera. On May 2, 2008, Plaintiff saw Dr. Anderson, and reported that he had relapsed on marijuana and opium a week earlier, and had run out of his medications. (Tr. 591-92.)

Evidentiary Hearing of July 15, 2008 (Tr. 5-44)

Plaintiff, who was represented by counsel, alleged an amended disability onset date of January 1, 2006. Plaintiff testified that he was 21 years old, and had a high-school diploma. He stated that he did not know if he had been in a special education program, but had spent part of his day in an IEP during his last year of high school. He also testified that, due to behavioral problems, he had attended Evangelical Children's Home for a summer semester, as well as at least one regular semester. He had no problem reading and writing.

He had a valid driver's license, and worked as a delivery driver for Pizza Hut. He had worked for Pizza Hut for a year at $6.58 per hour, and his hours had just been increased from 14 to 24 hours per week.

Plaintiff testified that most of his past jobs had been in the fast food business, and that he had worked at McDonald's and Imo's Pizza. He cooked and cleaned at these jobs, and at most had to lift and carry 50 to 60 pounds. He also worked the counter as a cashier for McDonald's. Plaintiff testified that he left jobs when school began, when he got into arguments with management, or when he had scheduling issues. Plaintiff stated that his bipolar disorder and schizophrenia limited his ability to work because the voices in his head were constantly telling him to do "pretty bad" and "messed up" things. His behavior had also caused him to lose jobs and lose hours. He explained that the voices in his head would convince him that things were happening, such as people talking about him behind his back, and even though nothing was actually occurring, he would react by becoming argumentative with people.

Plaintiff took Invega for his schizophrenia, as well as Strattera, trazodone, Depakote, and Citalopram for his bipolar disorder, ADHD, and manic depression. Plaintiff stated that trazodone made him sleep a lot, and that when he did not take Citalopram, he was so fatigued that he was unable to function during the day. He noted that overall he was able to function when taking his medication, but he heard voices despite his medication. He met with a counselor named Michelle Goldstein every other week, but he had not been to a session in a number of weeks. He testified that he took his medication as prescribed to him by Dr. Anderson, whom he saw "once every couple of months" for medication management. Plaintiff stated that he had been working part time since submitting his application, and that he was living with his parents, but had briefly lived on his own, as part of a "drug free" group.

Plaintiff did not remember much about his last hospitalization and, as a result, he was unable to obtain the medical records for that hospitalization; however, he thought it occurred in November 2007, somewhere in Park Hills, Missouri. He also had been admitted to COMTREA for marijuana dependance from October 2007 to November 2007. Plaintiff testified that he had used marijuana intermittently for two years prior to COMTREA, but denied telling anyone at CenterPointe hospital that he was drinking daily. Plaintiff also denied the validity of hospital records stating that he had smoked marijuana for several years; had a history of acid, ecstacy, opium, cocaine, and alcohol abuse; and had first developed a substance abuse problem at age 14. Plaintiff stated that he had a relapse 58 days prior to the hearing and had used marijuana, but that it was the last time he had used any type of substance. He also smoked almost a pack of cigarettes per day. Plaintiff stated that he did not have any physical problems, and that his complaints were related to his mental health issues.

Plaintiff testified that he would take more hours if Pizza Hut would give them to him. His duties included delivering pizzas, prepping dough and sauces, and washing dishes. Plaintiff said that he got along with some, but not all, of his fellow employees, which was consistent with his general experience. He was "getting along better now" with the medication that Dr. Anderson had prescribed to him.

Upon questioning by his attorney, Plaintiff testified that he smoked marijuana because, when he was high, he did not hear any voices in his head, other than his own thoughts, which made him feel safe. He stated that he had not used marijuana regularly since October 2007, when he was admitted to COMTREA, and estimated that he had used it approximately six or seven times since that time. He attended NA once a week, and had a sponsor. He said that Invega made the voices in his head easier to ignore, but did not take them away, and that the voices still told him to do "some pretty messed up things" to people around him. He had not yet had a medication that took the voices away completely.

Plaintiff testified that he used to cut himself when he did something wrong, both as a punishment and because it felt good, but he no longer cut himself. He had gotten a Continuous Positive Airway Pressure machine for his sleep apnea, and as a result, he slept approximately seven hours a night and woke up feeling rested. Plaintiff stated that even though he still had bad dreams about violent actions, he had far fewer such dreams than before he began taking medication. He saw his friends a couple times a week and got along well with them.

Dr. Anderson had diagnosed him with Asperger's syndrome and that it was part of the autism spectrum, but Plaintiff stated that while they had discussed it a few times, he did not remember what Dr. Anderson saw in him that suggested Asperger's syndrome.

When he was released from COMTREA, COMTREA referred him to the Church Army of Leadville, in Park Hills, Missouri, because it had a "drug free" group, and COMTREA was trying to help Plaintiff get off of marijuana. He lived on his own with this group for a while, but stated that he now lived with his parents.

Plaintiff testified that his ADD had improved with medication, but he still had trouble focusing, and was distracted easily. He estimated that he could work for about 10 minutes before it became impossible for him to concentrate and, as a result, he was always switching from one thing to the next. Plaintiff said that he got yelled at "a lot" at work for not staying on task, and that he had only been given extra hours because they were pleased with his driving, not his other work.

Plaintiff also stated that he had trouble managing his impulse control and would say inappropriate things. The problem tended to arise everywhere and "at every bad moment you can imagine." His anger was the hardest to control, and it was particularly difficult to control at home and when he had to deal with authority figures, because he had trouble trusting or following authority figures. As a result, every time his boss told him to do something, he got angry "for no apparent reason at all." The two main reasons he felt that he could not work full-time were his trouble keeping attention and his trouble with anger.

Upon further questioning by the ALJ, Plaintiff testified that he no longer had a girlfriend. He felt he did the delivery job well and his employer was happy with the delivery aspects of his job. He felt the biggest problem he faced when delivering pizza was that he often delivered to places where he was offered drugs, and it was difficult to resist the temptation. Plaintiff attributed one of his relapses directly to a delivery he made for work, and stated that he had reported the matter to his boss and was almost fired as a result.

Plaintiff testified that he was working on his anger issues with his counselor at Provident. He also stated that his past cutting of his forearms was not to get his parents' attention, but was because it felt good and was a means to punish himself.

The Vocational Expert ("VE") testified that Plaintiff's work history lacked any substantial gainful activity. He classified Plaintiff's jobs as a fast-food worker as unskilled jobs at the light exertional work level, though possibly more than light "once in a while." He also testified that Plaintiff's work as a delivery driver might have some element of semi-skilled, but was essentially a food preparation position, and therefore, an unskilled light job. In the VE's opinion, Plaintiff had no skills, no transferrable potential, and no past relevant work.

The VE testified that an individual of Plaintiff's age, education, and work experience, who had no exertional limitations, but who was limited to performing simple tasks, which required no more than occasional contact with the general public or co-workers, and who required extra access to supervision and help with both setting and meeting goals, could perform jobs such as product assembly jobs; hand pack, wrapping, and other types of bagger jobs; and product inspector, checker, and examiner jobs. Each of those jobs was available in both the local and national economies.

The VE then testified that an individual with the same criteria as above, but who also needed a job that would allow for occasional unscheduled interruptions of both the workday and the workweek, would be unable to sustain a job in the national economy, because he would be unreliable to an employer.

Upon questioning by Plaintiff's attorney, the VE testified that the functional limitations associated with a GAF score of 50 were adopted by vocational experts as a cut-off point, and that the behaviors, stressors, and interactions associated with a GAF score below 50 were seen as inconsistent with maintaining employment due to instability, a variety or stress, interpersonal conflicts, a lack of reliable work, concentration, and pace. A GAF of 30 or 40 would indicate more severe versions of these symptoms.

ALJ Decision of August 15, 2008 (Tr. 51-61.)

The ALJ found that Plaintiff met the insured status requirements for disability benefits through September 30, 2007. The ALJ next determined that Plaintiff had not engaged in substantial gainful activity since January 1, 2006, the alleged disability onset date. Plaintiff had "severe" impairments, as the term is defined in the Commissioner's regulations, with respect to a mental impairment variously described as bipolar disorder, Asperger's syndrome, personality disorder, schizoaffective disorder, and possible ADHD; and a history of polysubstance abuse. However, Plaintiff's "severe" impairments did not meet the severity level of a deemed-disabling impairment listed in the regulations.

The ALJ determined that Plaintiff had no more than a moderate restriction in activities in daily living; moderate difficulties in social functioning, concentration, persistence, or pace; and had only experienced one or two episodes of decompensation that were attributed to noncompliance with medication or to substance abuse; and therefore did not meet with the "B" criteria. He determined that Plaintiff had the RFC to perform a full range of work at all exertional levels, but was limited to work involving no more than simple tasks which required no more than occasional contact with the general public or co-workers, and would need to work in an environment where he would be able to obtain additional supervision to help with both setting and meeting goals.

In support of his RFC assessment, the ALJ summarized Plaintiff's educational and medical records, and concluded that Plaintiff's statements concerning the intensity, persistence, and limiting effects of his symptoms were not credible because they were inconsistent with the RFC assessment. The ALJ stated that the evidence demonstrated that, when fully compliant with treatment recommendations, Plaintiff had functioned at a level that would not be expected to preclude work activity. He also noted that Plaintiff had been able to work part-time on an essentially ongoing basis since his alleged onset date, and noted that during an appointment with Dr. Anderson, Plaintiff stated that he wanted to work more hours, from which the ALJ inferred that even Plaintiff "believed he was capable of an increased workload."

The ALJ noted that Plaintiff's recent hospitalizations appeared to be due to Plaintiff's noncompliance with his medication, and not from "exacerbations occurring spontaneously despite adherence" to prescribed treatment. He also noted that Plaintiff's hospitalizations at CenterPointe Hospital in May 2007 and June 2007 appeared to have been directly linked to Plaintiff's increased use of illicit drugs. The ALJ cited to the fact that Plaintiff acknowledged a periodic use of opium, and that Plaintiff's problems and history were assessed as consistent with substance dependency, with marijuana as the drug of choice. He determined that Plaintiff's drug use played a significant role in any symptom exacerbations experienced by Plaintiff.

The ALJ further noted that Plaintiff's hobbies, including fencing, martial arts, and playing video games, were not consistent with someone who had trouble with maintaining attention and concentration to the extent alleged by Plaintiff. He stated that based on the evidence, it seemed clear that Plaintiff was able to do anything he desired, and go anywhere he wanted, when he wanted, without any restrictions.

The ALJ stated that Plaintiff's poor earnings could reflect a lack of motivation, rather than an inability, to work full-time, particularly given that Plaintiff had limited daily expenses because he lived with his parents. He noted that one year of Supplemental Security Income would provide Plaintiff with far more income than he had ever earned during a single year while working, which could motivate him to exaggerate his symptoms. Plaintiff's earning record thus did not support the argument that, but for his alleged impairments, Plaintiff would be engaged in substantial gainful activity.

The ALJ did not afford Dr. Anderson's opinion controlling weight. He noted that Dr. Anderson's December 2007 report, in which he estimated that Plaintiff had a GAF of 40, and declared him to be "100% psychiatrically disabled and incapable of meaningful work in an open labor market," was inconsistent with his February 2008 statement that Plaintiff was "doing well." The ALJ further noted that Dr. Anderson's opinion that Plaintiff might not be able to work in a "competitive employment situation" was not a medical opinion, but an application of the statute, which was the task of the Commissioner. Moreover, the fact that Plaintiff had been continually performing meaningful work eroded the weight that Dr. Anderson's opinion would receive as a treating source.

The ALJ highlighted the fact that Plaintiff only saw Dr. Anderson once every two months for medication management, and noted that Dr. Anderson did not address Plaintiff's non-compliance with his treatment and medication, or with his substance abuse, and the effect compliance may have had on Plaintiff's ability to function. He also noted that Plaintiff had a counselor, but admitted to not making all of his appointments.

The ALJ also contended that Dr. Anderson's opinion was not consistent with the overall evidence, and noted that others who treated Plaintiff did not see his limitations as so severe as to preclude work. In particular, the ALJ noted Dr. Littleton's August 2006 assessment that Plaintiff appeared to be in an upbeat mood with a positive attitude and appropriate affect; had at least average cognitive capabilities with intact memory, reasonably good judgment, insight, and comprehension; and had an estimated GAF of 60, which was "indicative of only moderate difficulty with social or occupational functioning."

The ALJ did note that despite not affording Dr. Anderson's opinion controlling weight, he had considered Dr. Anderson's views in constructing Plaintiff's RFC. He also considered the opinion of the Missouri State Agency medical consultant, which was consistent with the ALJ's decision and the overall record.

Finally, the ALJ noted that Plaintiff had no past relevant work. Based on the VE's testimony, the ALJ concluded that Plaintiff was capable of performing work as a product assembler, handpacker/bagger/wrapper, and product inspector/examiner/checker, all of which were available in the local and national economies, and that Plaintiff was therefore not disabled within the meaning of the Social Security Act.

DISCUSSION Standard of Review and Statutory Framework

In reviewing the denial of Social Security disability benefits, a court must affirm the Commissioner's decision "so long as it conforms to the law and is supported by substantial evidence on the record as a whole." Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005) (citation omitted). This "entails `a more scrutinizing analysis'" than the substantial evidence standard. Id. (quotingWilson v. Sullivan, 886 F.2d 172, 175 (8th Cir. 1989)). The court's review "`is more than an examination of the record for the existence of substantial evidence in support of the Commissioner's decision'"; the court must "`also take into account whatever in the record fairly detracts from that decision.'" Id. (quoting Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001) (citation omitted)). Reversal is not warranted, however, "`merely because substantial evidence would have supported an opposite decision.'" Id. (quoting Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995) (citation omitted)).

It is not the role of [the reviewing] court to reweigh the evidence presented to the ALJ or to try the issue in this case de novo. If after review, [the court] find[s] it possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner's findings, [the court] must affirm the denial of benefits.

Wiese v. Astrue, 552 F.3d 728, 730 (8th Cir. Jan. 2009) (citations omitted).

To be entitled to benefits, a claimant must demonstrate an inability to engage in any substantial gainful activity which exists in the national economy, by reason of a medically determinable impairment which has lasted or can be expected to last for not less than 12 months. 42 U.S.C. § 423(d)(1)(A);Barnhart v. Walton, 535 U.S. 212, 217-22 (2002). The Commissioner has promulgated regulations, found at 20 C.F.R. § 404.1520, establishing a five-step sequential evaluation process to determine disability. The Commissioner begins by deciding whether the claimant is engaged in substantial gainful activity. If so, benefits are denied. If not, the Commissioner decides whether the claimant has a "severe" impairment or combination of impairments. A severe impairment is one which significantly limits a person's physical or mental ability to do basic work activities. 20 C.F.R. § 404.1521(a).

A special technique is used to determine the severity of mental disorders. This technique calls for rating the claimant's degree of limitations in four areas of functioning: activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. 20 C.F.R. § 404.1520a(c)(3). The limitation in the first three functional areas is assigned a designation of either "none, mild, moderate, marked, [or] extreme." Id. § 404.1520a(c)(4). The degree of limitation in regard to episodes of decompensation is determined by application of a four-point scale: "[n]one, one or two, three, four or more."Id. When the degree of limitation in the first three functional areas is "none" or "mild," and "none" in the area of decompensation, impairments are not severe, "unless the evidence otherwise indicates that there is more than a minimal limitation in [a claimant's] ability to do basic work activities." Id. § 404.1520a(d)(1).

The ability to do basic work activities includes the abilities for understanding, carrying out, and remembering simple instructions; use of judgment; responding appropriately to supervision, co-workers, and usual work situations; and dealing with changes in a routine work setting. Id. § 404.1521(b).

If the claimant does not have a severe impairment or combination of impairments that meets the duration requirement, the claim is denied. If the impairment is severe and meets the duration requirement, the Commissioner determines at step three whether the claimant's impairment meets or is equal to one of the impairments listed in the Commissioner's regulation, 20 C.F.R. Part 404, Subpart P, Appendix 1. If so, the claimant is conclusively presumed to be disabled. Otherwise, the Commissioner asks at step four whether the claimant has the residual functional capacity ("RFC") to perform his past relevant work, if any. If the claimant can return to past relevant work, the claimant is not disabled. Otherwise, the burden of proof shifts at step five to the Commissioner to demonstrate that the claimant has the RFC to perform a significant number of other jobs in the national economy that are consistent with the claimant's vocational factors — age, education, and work experience.

If a claimant can perform the full range of work in a particular category of work (very heavy, heavy, medium, light, and sedentary) listed in the Commissioner's regulations, the Commissioner may carry this burden by referring to the Commissioner's Guidelines, which are fact-based generalizations about the availability of jobs for people of varying ages, educational backgrounds, and previous work experience, with differing degrees of exertional impairment. Where a claimant cannot perform the full range of work in a particular category due to nonexertional impairments such as depression, the Commissioner cannot carry the step-five burden by relying on the Guidelines, but must consider testimony of a vocational expert ("VE") as to the availability of jobs that a person with the claimant's profile could perform.Baker v. Barnhart, 457 F.3d 882, 888 n. 2, 894-95 (8th Cir. 2006).

Dr. Anderson's Opinion

Plaintiff contends that the ALJ erred in discounting the opinion of Plaintiff's treating physician, Dr. Anderson. The weight to be given to a medical opinion is governed by a number of factors including the examining relationship, the treatment relationship, the length of the treatment relationship and frequency of examination, the consistency of the source's opinion, and whether the source is a specialist in the area. 20 C.F.R. §§ 404.1527(d), 416.927(d). The ALJ is to give a treating medical source's opinion on the issues of the nature and severity of an impairment controlling weight if such opinion "is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." Id. at § 404.1527(d)(2). A treating physician's opinion that is inconsistent with the physician's own treatment notes need not be credited by an ALJ. Holmstrom v. Massanari, 270 F.3d 715, 720 (8th Cir. 2001).

The Court finds the ALJ's decision not to give Dr. Anderson's opinion controlling weight to be unsupported. In his decision, the ALJ stated that Dr. Anderson provided Plaintiff with "sporadic outpatient psychiatric treatment." A review of the record indicates that Dr. Anderson had been providing Plaintiff with psychiatric treatment approximately every two months, for over four years, which amounts to continuous, not "sporadic," treatment. Moreover, Dr. Anderson's treatment notes contain notations regarding Plaintiff's state of mind and activities, which indicate that Plaintiff's treatment was for more than "medication management only."

The ALJ also noted that evidence that Plaintiff had been "continually performing meaningful work, at least part time" eroded "much of the weight that would be given to Dr. Anderson's opinion as a treating source." However, Plaintiff never worked more than part-time, and always in various jobs in fast-food. He testified that his bipolar disorder and schizophrenia limited his ability to work because the voices in his head were constantly telling him to do "pretty bad" and "messed up" things, which caused him to lose jobs and lose hours, and that he got yelled at "a lot" at work for not staying on task. While he had been given extra hours at Pizza Hut, Plaintiff testified that was only because his supervisor was pleased with his driving, not his other work. Later in his decision, the ALJ noted that Plaintiff did not have past relevant work experience, which was consistent with the VE's opinion that Plaintiff's work history lacked any substantial gainful activity. This Court finds that the record does not support the ALJ's determination that Plaintiff's work history was composed of "meaningful work" to a degree that fairly undermines the treating physician's opinion.

There may be valid reasons for questioning the medical opinion of Dr. Anderson with regard to Plaintiff's physical and mental limitations. But when viewing the record as a whole, the Court does not believe that the ALJ had an adequate basis to reject these opinions in favor of the opinion of the non-treating, state agency consultant, Dr. McGee.

Additionally, Dr. McGee's psychiatric review of Plaintiff, and Mental RFC assessment of Plaintiff, took place on August 31, 2006. Therefore, Dr. McGee's opinion did not take into account Plaintiff's December 30, 2006 admission to St. John's Mercy Medical Center for self-mutilation and exacerbation of his bipolar disorder, Plaintiff's May 10, 2007 admission to CenterPointe Hospital for threatening to take an overdose of pills and cut himself, Plaintiff's May 29, 2007 re-admission to CenterPointe Hospital with thoughts of suicide and violence, his multi-week stay in CenterPointe Hospital's acute outpatient program, or his admission to COMTREA's residential treatment program for substance abuse.

Furthermore, where, as here, an ALJ does not give controlling weight to the opinion of a treating source such as Dr. Anderson, but rather relies upon the opinion of a state agency consultant, the Commissioner's regulations require the ALJ to explain the weight given to the consultant. See 20 C.F.R. § 404.1527(f)(2)(ii). The ALJ's failure to do so here supports the Court's decision that the Commissioner's decision must be reversed and the case remanded. See Willcockson v. Astrue, No. 07-3757, 2008 WL 3927277, at *2 (8th Cir. Aug. 28, 2008) (reversing and remanding for further consideration where the ALJ did not explain why he relied on the RFC assessment of a state agency consultant; "By explaining the weight given [the consultant's] assessment, the ALJ would have both complied with the regulation and assisted [the Court] in reviewing the decision.").

In sum, the Court recognizes that it is generally for the ALJ to assess the record and determine the weight to be accorded to the treating physician's opinions, and that a court should "disturb the ALJ's decision only if it falls outside the available `zone of choice.'" See, e.g., Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir. 2006) (citations omitted). But, while the question might be close, the Court believes that reversal and remand are required here. See Willcockson, 2008 WL 3927277, at *3 ("Several errors and uncertainties in the [ALJ's] opinion, that individually might not warrant remand, in combination create sufficient doubt about the ALJ's rationale for denying [the Plaintiff's] claims to require further proceedings. . . .").

The Court will reverse and remand this case for further consideration, and with the instruction that any determination of no disability be supported by further explanation of the weight given to the opinions of Dr. Anderson and Dr. McGee.

Plaintiff's RFC and Credibility

In light of the Court's remand of this case for further consideration of the weight to be given to the opinions of Dr. Anderson and Dr. McGee, the ALJ will need to perform a new RFC assessment of Plaintiff. Therefore, the Court will not address Plaintiff's arguments regarding the ALJ's assessment of Plaintiff's RFC or his credibility.

CONCLUSION

In sum, the Court finds that the ALJ's decision is not supported by substantial evidence. On remand, the ALJ should give proper weight to the opinion of Dr. Anderson, or more thoroughly articulate his reasoning for discounting it. The ALJ should also give proper weight to the opinion of Dr. McGee, or explain the weight given to the opinion of Dr. McGee. Finally, the ALJ should reconsider Plaintiff's RFC, which might require further development of the record.

CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that the decision of the Commissioner be REVERSED and that the case be REMANDED for further proceedings.

Dated this 24th day of September, 2010.

which are local agencies, decide whether or not to release a record. See Section 302(a) of the Right-to-Know Law, 65 P.S. § 67.302(a) (a "local agency shall provide public records in accordance with this act."). The school district's decision can then be appealed to the Office of Open Records. See Section 1101(a) of the Right-to-Know Law, 65 P.S. § 67.1101(a). A teacher may elect to participate in a Section 1101(c)(1) proceeding., After the Office of Open Records makes a final determination, a teacher may appeal that determination to the Court of Common Pleas of the County where the school district is located. See Section 1302(a) of the Right-to-Know Law, 65 P.S. § 67.1302(a). The Office of Open Records maintains that this statutory procedure is mandated by the Right-to-Know Law, which deprives this Court, or any court, of subject matter jurisdiction. This is likewise true for PSEA's request for injunctive relief. Borough of Green Tree v. Board of Property Assessments, 459 Pa. 268, 278-79, 328 A.2d 819, 824 (1974) (the existence of an adequate statutory remedy forecloses a court of equity's jurisdiction over a matter).

It states:

(1) If a written request for access to a record is denied or deemed denied, the requester may file an appeal with the Office of Open Records or judicial, legislative or other appeals officer designated under section 503(d) within 15 business days of the mailing date of the agency's response or within 15 business days of a deemed denial. The appeal shall state the grounds upon which the requester asserts that the record is a public record, legislative record or financial record and shall address any grounds stated by the agency for delaying or denying the request.

(2) Except as provided in section 503(d), in the case of an appeal of a decision by a Commonwealth agency or local agency, the Office of Open Records shall assign an appeals officer to review the denial. 65 P.S. § 67.1101(a)(1)(2).

It states:

Within 30 days of the mailing date of the final determination of the appeals officer relating to a decision of a local agency issued under section 1101(b) or of the date a request for access is deemed denied, a requester or local agency may file a petition for review or other document as required by rule of court with the court of common pleas for the county where the local agency is located. The decision of the court shall contain findings of fact and conclusions of law based upon the evidence as a whole. The decision shall clearly and concisely explain the rationale for the decision.

65 P.S. § 67.1302(a).

Further, the Office of Open Records asserts that there is a statutory mechanism for a PSEA member, who feels threatened by the release of his or her home address, to participate in the statutory procedure. Section 1101(c)(1) of the Right-to-Know Law allows any individual with a direct interest in a record request to

file a written request to provide information or to appear before the appeals officer [of the Office of Open Records] or to file information in support of the requester's or agency's position.

65 P.S. § 67.1101(c)(1). The appeals officer can allow the submission of this information even when no hearing has yet been held and his opinion has not yet been written, so long as the hearing officer believes the proffered information will have probative value. Section 1101(c)(2) of the Right-to-Know Law, 65 P.S. § 67.1101(c)(2).

It provides:
The appeals officer may grant a request under paragraph (1) if:

(i) no hearing has been held;

(ii) the appeals officer has not yet issued its order; and

(iii) the appeals officer believes the information will be probative.

65 P.S. § 67.1101(c)(2).

Again, we do not decide the question of whether the statutory procedure established in the Right-to-Know forecloses the ability of this Court, or any court, to circumvent the statutory procedure by allowing PSEA's action for declaratory and equitable relief to proceed. There is a more fundamental reason why this Court cannot hear PSEA's complaint.

The Judicial Code confers original jurisdiction in the Commonwealth Court for "all civil actions or proceedings . . . [a]gainst the Commonwealth government." See 42 Pa.C.S. § 761(a)(1). Naming a Commonwealth agency is not enough to satisfy Section 761(a)(1). The Commonwealth agency so named must have a cognizable interest in the outcome of the action. Pennsylvania State Education Association v. Department of Education, 101 Pa.Cmwlth. 497, 516 A.2d 1308 (1986) (holding this Court lacked original jurisdiction, over suit against Department of Education where Department had only minimal involvement in challenged interdistrict tuition agreement). Stated otherwise, "[a] Commonwealth agency or official is only an indispensable party to a proceeding if the action `cannot conceivably be concluded with meaningful relief without the sovereign state itself becoming directly involved.'" Foreman v. Chester-Upland School District, 941 A.2d 108, 113 (Pa.Cmwlth. 2008) (quoting Pennsylvania State Education Association, 516 A.2d at 1310). An indispensable party "is one whose rights are so connected with the claims of the litigants that no relief can be granted without infringing upon those rights." Piper Aircraft Corp. v. Insurance Co. of North America, 53 Pa.Cmwlth. 209, 417 A.2d 283, 285 (1980).

In a request for records pursuant to the Right-to-Know Law, there are two parties: the requester and the agency whose records are being requested. The Office of Open Records is the tribunal that resolves disputes between requesters and agencies. The Office of Open Records itself, as a quasijudicial tribunal, lacks any interest in the outcome of its adjudications. East Stroudsburg University Foundation v. Office of Open Records, 995 A.2d 496, 507 (Pa.Cmwlth. 2010) (holding that Office of Open Records lacks authority to participate in appeals of its decisions because as an adjudicatory body, "it is not aggrieved by the release of another's agency records."). Just as the Office of Open Records cannot participate in an appeal of one of its adjudications, it cannot serve as the appropriate defendant in PSEA's original jurisdiction action at issue here.

We are not implying, as Judge McCullough suggests in her dissent, that PSEA lacks standing to challenge requests for names and addresses of public school employees. PSEA's standing is not at issue.

In his dissent, Judge Pellegrini contends that by naming not just the Office of Open Records but also its Executive Director and the Department of Community and Economic Development, PSEA has brought an action "against the Commonwealth government." 42 Pa.C.S. § 761(a)(1). However, it is not the number of Commonwealth defendants named in the complaint but their function that is determinative of this Court's jurisdiction.

PSEA seeks to direct the Office of Open Records in the exercise of its adjudicatory responsibility with respect to records in the possession of school districts. It is the school districts, not the Office of Open Records, that will receive the requests for teacher addresses. Accordingly, it is the school districts, not the Office of Open Records, that are the appropriate defendants to PSEA's privacy claims. Further, the relief sought by PSEA, i.e., a directive to the Office of Open Records on how to adjudicate, places this complaint beyond our jurisdiction. It would be error for a litigant to sue the Environmental Hearing Board for the purpose of directing how it should construe and apply a statute in future litigation, and this error would only be compounded, not corrected, by adding the Board's individual judges as defendants.

The Office of Open Records could be a proper defendant in some litigation. For example, if it failed to pay its vendors, it could be brought before the Board of Claims for breach of contract.

A litigant challenging the constitutionality of the act commonly known as the Clean Streams Law, for example, must sue the Pennsylvania Department of Environmental Protection, which daily takes executive action to grant or deny permits under authority of the Law. See Section 5 of the Clean Streams Law, 35 P.S. § 691.5; Concerned Citizens for Orderly Progress v. Department of Environmental Resources, 36 Pa.Cmwlth. 192;, 387 A.2d 989 (1978) (discussing, inter alia, Department's considerations under Clean Streams Law when issuing permits). To pursue a claim that a provision of the Clean Streams Law, or any state environmental law, violates a constitutionally protected right, an action could be initiated in this Court against the Department and the Secretary of Environmental Protection. See, e.g., Northern Tier Solid Waste Authority v. Commonwealth, 825 A.2d 793 (Pa.Cmwlth. 2003) (action in this Court's original jurisdiction against the Departments of Revenue and Environmental Protection, and their Secretaries, asserting that municipal authorities' constitutional rights to unimpaired contracts were violated by solid waste disposal fees). It would be error, however, to bring such an action against the Environmental Hearing Board, which "enforces" the Clean Streams Law strictly in a quasijudicial capacity. Such a capacity does not give the Environmental Hearing Board a cognizable interest in the outcome of litigation, such as that found in Northern Tier to exist for the Department of Environmental Protection.

Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §§ 691.1-691.1001.

Courts enforce statutes. However, to challenge a statute or its application, it is never acceptable to name a court as the defendant. Indeed, merely to state the proposition is to refute it. It is no different for the Office of Open Records, which functions as a quasijudicial tribunal, not a regulatory agency. It is not a proper defendant to PSElA's action, which seeks to direct its future adjudicatory actions.

Conclusion

The appropriate defendant to the PSEA's action is not the Office of Open Records but, rather, the school districts that hold the records and personal information sought to be protected from disclosure by PSEA. In the absence of a Commonwealth agency as a defendant, this Court lacks jurisdiction. Accordingly, the petition for review must be dismissed.

Judge SIMPSON did not participate in the decision in this case.

ORDER

AND NOW, this 24th day of September, 2010, it is hereby ORDERED that the preliminary objections of the Office of Open Records, in the above-captioned matter, are hereby SUSTAINED and the case DISMISSED without prejudice.