                                   NO. 07-06-0103-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL D

                                AUGUST 29, 2006
                         ______________________________

           RICHARD DEBENEDETTO AND WIFE, TINA DEBENEDETTO
      INDIVIDUALLY AND AS NEXT FRIENDS OF BABY GIRL DEBENEDETTO
           AKA ELIZABETH G. DEBENEDETTO, A MINOR, APPELLANTS

                                           V.

             BAPTIST/ST. ANTHONY’S HOSPITAL CORPORATION DBA
              BAPTIST/ST. ANTHONY’S HEALTH SYSTEM, APPELLEE
                     _________________________________

            FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                  NO. 91,811-E; HONORABLE ABE LOPEZ, JUDGE
                       _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

                              MEMORANDUM OPINION

      On August 15, 2006, the appellants filed a Motion to Dismiss Appeal. No decision

of this Court having been delivered to date, we grant the motion. Accordingly, the appeal

is dismissed. No motion for rehearing will be entertained and our mandate will issue

forthwith. Tex. R. App. P. 42.1.

                                                James T. Campbell
                                                    Justice


562 P.2d 909 (1977)
J.B. SMITH, Jr., Appellant,
v.
The STATE of Oklahoma, Appellee.
No. M-76-687.
Court of Criminal Appeals of Oklahoma.
April 5, 1977.
Red Ivy, Chickasha, for appellant.
Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., Donnie G. Pope, Legal Intern, for appellee.

*910 OPINION
BLISS, Judge:
The Appellant J.B. Smith, Jr., hereinafter referred to as defendant, was charged, tried before a jury and convicted of the offense of Driving and Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor, First Offense, in the District Court of Grady County, Case No. CRM-76-115. Punishment was assessed at a fine of $500.00 plus costs and imprisonment in the county jail for thirty (30) days. *911 From a judgment and sentence in accordance with the verdict the defendant has perfected his timely appeal.
Briefly stated the evidence adduced at trial is as follows: Officer Rocky Cantwell of the Chickasha Police Department testified that on the evening of March 9, 1976, he stopped the defendant after observing the defendant drive his vehicle left of center and weaving back and forth. Once the defendant got out of the car the officer observed that he staggered, had difficulty in standing and speaking and had a strong odor of alcoholic beverage about him. The defendant was asked to perform certain field sobriety tests which he failed and he was then transported to the county jail where he took a breathalyzer test. The witness stated that the defendant was "very intoxicated".
Officer Steve Ray then testified that he performed the breathalyzer test upon the defendant and that the results showed a blood alcohol content of .22 percent. Gene Jones of the Oklahoma Highway Patrol then testified that he had checked the breathalyzer machine on February 13, 1976, and it was found to be in proper working order. He further testified that he maintained the machine and that to his knowledge the machine had only been out of order once during the preceding two years. Deputy Sheriff Claud Haywood then testified that he had been the jailer on the night in question and that the defendant was "pretty drunk" when he was booked into jail. The state then rested.
The defendant testified that on the night and morning prior to his arrest he had consumed a fifth of whiskey and had then gone home and slept, for 8 or 9 hours. When stopped by the police he was going to a cafe to drink coffee and was not intoxicated. He further stated that he failed the sobriety test because he had an injury to his left arm which would not permit him to lift it above shoulder height. He denied that he was staggering or had difficulty speaking or standing when arrested. He further stated that he was swerving left of center to avoid parked cars along the narrow roads. The defense then rested.
The defendant's first assignment of error urges that the prosecutor committed reversible error during voir dire examination when he attempted to define reasonable doubt.
In Blanco v. State, Okl.Cr., 509 P.2d 491, this Court, citing Henderson v. State, Okl. Cr., 385 P.2d 930, held that the form of questions put to prospective jurors on voir dire examination is a matter within the discretion of the trial court and will not be interfered with where no prejudice is shown. We then went on to hold:
"The question asked by the prosecuting attorney inquiring as to whether the jurors could distinguish between proof beyond a reasonable doubt and proof beyond any doubt was not a definition of reasonable doubt nor was it an instruction on reasonable doubt, and as such was not prejudicial to the defendant. Hence, the trial court did not abuse its discretion in permitting such question."
In the instant case the prosecutor's remark was as follows:
"We do have the burden of proof because we are the State of Oklahoma and that is right and proper in a criminal case. Our burden is to prove this defendant guilty beyond a reasonable doubt. Is there any person here who could not distinguish between what is a reasonable doubt and what is an unreasonable doubt?"
The remark is very similar to that referred to in Blanco, supra. It does not amount to a definition of reasonable doubt nor was it an instruction on same. Therefore, there was no prejudice to the defendant and the defendant's first assignment is meritless.
The defendant's second assignment of error contends that the trial court erred in admitting certain testimony and allowing certain statements which when considered together deprived the defendant that measure of a fair trial to which the law entitled him. Williams v. State, 92 Okl.Cr. 70, 220 P.2d 836.
*912 The defendant first complains that error was committed when the prosecutor during voir dire examination of the jury consistently asked the prospective jurors whether or not they felt that a law prohibiting the driving of a vehicle while intoxicated was a necessary law. The defendant cites no authority for the proposition that such a question concerning a belief in the necessity for the law under which an accused is charged was error and further fails to show that such comment in any way tended to prejudice the defendant. In numerous cases this Court has, held that it is necessary for defense counsel not only to assert error, but to support his contentions by both arguments and citations of authority. Where this is not done and it is apparent that defendant has been deprived of no fundamental rights this Court will not search the books for authority to support the mere assertion that the trial court erred. Fryar v. State, Okl.Cr., 385 P.2d 818. From an examination of the record we do not find the questions to be fundamentally prejudicial to the defendant, especially in light of the overwhelming evidence of guilt.
The defense next complains that the prosecutor erred when he directed a question to the entire jury panel instead of to the prospective jurors seated in the jury box. The record reflects that an objection was made by defense counsel and the objection was sustained. We find no prejudicial error.
The final complaint is that defense counsel was not allowed to recross-examine Officer Jones or to make him a defense witness at that time. However, the record reveals that the trial court ruled that recross-examination of Officer Jones was outside the scope of redirect examination and advised defense counsel that if he wanted to question the witness concerning a new subject he could call him as a defense witness. Defense counsel cites no authority to support his contention and again we find no prejudicial error since the trial court was quite correct in its ruling. It is our opinion that there was no accumulation of error which deprived the defendant of a fair trial and the defendant's second assignment is also meritless.
The defendant's final assignment of error urges that the prosecuting attorney committed reversible error by making improper comments during his closing argument. The record reflects that when the prosecutor made the first remark an objection was promptly made and the trial court admonished the jury to disregard the comment. Based upon the overwhelming evidence of guilt and the trial court's admonishment of the jury it is our opinion that the error, if any, was harmless and no prejudice occurred.
The last comment complained of is as follows:
"... This defendant is not a first time offender. He has two prior DWI convictions. I think the State of Oklahoma has carried their burden and we have proved this defendant guilty beyond a reasonable doubt. I ask you to do your duty and bring in a guilty verdict. Thank you."
It is obvious that the above remark was a comment by the prosecutor upon the quantum of proof which the state had presented and his belief that the jury had no other alternative than to return a verdict of guilty.
In White v. State, Okl.Cr., 498 P.2d 421, we held that the prosecutor may state his opinion as to the defendant's guilt when he also states that his opinion is based on the evidence in the case and the evidence detailed reasonably tends to support such conclusion. In the instant case there was ample evidence of guilt, the prosecutor was in the process of commenting upon the evidence and the remark was proper.
From an examination of the record as a whole it is our opinion that the defendant received a fair and impartial trial before a jury, that no fundamental right of the defendant was prejudiced and that the judgment and sentence appealed from should be, and the same is hereby AFFIRMED.
BUSSEY, P.J., and BRETT, J., concur.


                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA

BRIAN KEITH WAUGH,                 :
                                   :
          Plaintiff,               :
                                   :
     v.                            : Civil Action No. 09-0250 (JR)
                                   :
ANHEUSER-BUSCH INBEV, et al.,      :
                                   :
          Defendants.              :

                              MEMORANDUM

          Brian Keith Waugh, plaintiff pro se, alleges copyright

infringement and civil conspiracy claims against defendants

Anheuser-Busch Companies, Inc.1; Nike, Inc.; American Sporting

Goods Corporation; and Adidas International, Inc.      He sued the

same parties, except for Adidas, in 2008.      1:08-cv-01571 RMU.    He

voluntarily dismissed that complaint.      Defendants Nike and

Anheuser-Busch now move to dismiss, arguing, among other things,

that Mr. Waugh’s claims are time-barred.      They are correct, and

their motions to dismiss will be granted.

          Mr. Waugh’s complaint is difficult to follow, but it

appears to allege that, in 1997, the defendants’ shoe designs

began infringing on one of his copyrighted sketches, and that,

during this time, all the defendants engaged in a conspiracy to

discriminate against him through their advertisements.

     1
          Mr. Waugh has incorrectly named this party as
“Anheuser-Busch InBev.”
          Mr. Waugh did not file his complaint within the three-

year statute of limitations for his copyright infringement claim,

17 U.S.C. § 507(b), or the three-year statute of limitations for

his conspiracy claim.   See, e.g., Zandford v. National Ass’n of

Securities Dealers, Inc., 30 F. Supp. 2d 1, 21 (D.D.C. 1998).    By

his own admission, Mr. Waugh was aware of the alleged

infringement and conspiracy in 1997, but he did not file his

complaint until eleven years later.    Mr. Waugh offers no reason

why the applicable statutes of limitations should be tolled.

          The motions to dismiss of Nike and Anheuser-Busch will

be granted.   American Sporting Goods and Adidas were never

served, and plaintiff’s complaint will be dismissed as to those

parties pursuant to Fed. R. Civ. P. 4(m).

          An appropriate order accompanies this memorandum.

                                JAMES ROBERTSON
                          United States District Judge

                               - 2 -


6 F.3d 784
Resolution Trustv.Tyson Foods, Inc.
NO. 92-1566
United States Court of Appeals,Eighth Circuit.
Mar 11, 1993

1
Appeal From:  E.D.Ark.

2
DISMISSED.


335 S.C. 386 (1999)
517 S.E.2d 689
Esther C. WILLIAMS, Petitioner,
v.
David G. WILLIAMS, as Personal Representative of the Estate of Ralph Howard Williams, Respondent.
No. 24958.
Supreme Court of South Carolina.
Heard May 27, 1999.
Decided June 28, 1999.
*387 E.T. Moore, Jr., of Barnwell, for petitioner.
Thomas B. Bryant, III, of Bryant, Fanning & Shuler, of Orangeburg, for respondent.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
BURNETT, Justice:
This Court granted certiorari to review the Court of Appeals' opinion in Williams v. Williams, 329 S.C. 569, 496 *388 S.E.2d 23 (Ct.App.1998). We reverse and remand for a determination of the value of petitioner's elective share.

FACTS
Ralph Williams died on December 11, 1994. His will, dated June 25, 1986, was admitted to probate and Respondent David Williams (the PR) was appointed personal representative. Ralph Williams' widow, petitioner, timely filed a petition for her elective share with the probate court. Petitioner, through her attorney, mailed a copy of her elective share claim to the PR's attorney, Thomas Bryant, III. By letter to petitioner's attorney dated July 12, 1995, Bryant acknowledged receipt of the petition, acknowledged delivering the letter attached to the petition to the PR, and reported the PR's response.
The PR disputed petitioner's claim for elective share. The probate court, concluding petitioner failed to strictly comply with S.C.Code Ann. § 62-2-205(a) (Supp.1998), disallowed petitioner's claim. The circuit court and the Court of appeals affirmed.

ISSUE
Did the Court of Appeals err in finding petitioner failed to comply with the requirements set out in S.C.Code Ann. § 62-2-205(a) (Supp.1998)?

DISCUSSION
The South Carolina Probate Code provides a procedure whereby the surviving spouse of a person domiciled in this state may claim an elective share of one-third of the decedent's probate estate. Section 62-2-205(a) provides:
The surviving spouse may elect to take his elective share in the probate estate by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within eight months after the date of death or within six months after the probate of the decedent's will, whichever limitation last expires.
(emphasis added).
The Court of Appeals held petitioner failed to strictly comply with § 62-2-205 because she did not directly deliver *389 the claim to the PR. The court found strict compliance was required by Simpson v. Sanders, 314 S.C. 413, 445 S.E.2d 93 (1994).
In Simpson, the issue was whether the surviving spouse had timely mailed the notice to the personal representative. The personal representative admitted actual notice of the surviving spouse's intent to claim his elective share; however, she claimed she never received a copy of the petition. The probate court found actual notice of the claim was sufficient and refused to decide if the surviving spouse actually mailed the petition to the personal representative. This Court held because the elective share provision is a statute of creation, the surviving spouse must strictly comply with its requirements. The Court found actual notice of a claim was not sufficient under the statute. Instead, the petition must be mailed to the personal representative. Accordingly, the Court remanded the case to probate court to determine if the surviving spouse complied with the statute by mailing the petition to the personal representative.
The Court of Appeals reads Simpson too broadly. The issue in Simpson was to whom the elective share petition should be mailed. The meaning of the term "delivery" under § 62-2-205(a) was not an issue.[1]
Petitioner claims the statutory term "delivery" should be construed to allow constructive delivery of an elective share claim to the PR through his personal attorney.
In interpreting the statutory meaning of the phrase "delivering to the personal representative," this Court's primary function is to ascertain the intention of the legislature. Unless there is something in a statute requiring a different *390 interpretation, the words must be given their ordinary meaning. Mullinax v. J.M. Brown Amusement Co., Inc., 326 S.C. 453, 485 S.E.2d 103 (Ct.App.1997), aff'd, 333 S.C. 89, 508 S.E.2d 848 (1998). Where a statute is complete, plain, and unambiguous, legislative intent must be determined from the language of the statute itself. The Court should consider not merely the language of the particular clause being construed, but the word and its meaning in conjunction with the purpose of the whole statute and the policy of the law. Whitner v. State, 328 S.C. 1, 492 S.E.2d 777 (1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1857, 140 L.Ed.2d 1104 (1998).
Delivery means "the act by which the res or substance thereof is placed within the actual or constructive possession or control of another." Black's Law Dictionary 498 (6th ed. 1990). Section 62-2-205(a) does not state the delivery must be direct or that it must be accomplished by service pursuant to Rules 4 & 5, SCRCP. Moreover, the ordinary meaning of delivery does not dictate that the act be accomplished only by means of personal service as defined by Rules 4 & 5, SCRCP.[2] If the legislature had intended delivery of notice of the elective share claim be served under the strictures of Rules 4 & 5, the legislature could have so provided by using the words "personal service" or "service" as it did in other sections of the Probate Code.[3] By using the term "delivery", the legislature unambiguously expressed its intent that service is not required and this Court should not read this requirement into the statute. Accordingly, "delivery" is not the equivalent of "service" and delivery under § 62-2-205(a) may be accomplished without following Rules 4 & 5, SCRCP.
Further, the ordinary meaning of the language of the elective share statute, when read in conjunction with the purpose of the statute and the policy of the law, supports the conclusion that "delivery" should be interpreted more expansively. The legislative purpose behind the elective share *391 statute is to protect the family unit from becoming society's ward by preventing impoverishment of the surviving spouse. Berkebile v. Outen, 311 S.C. 50, 55, 426 S.E.2d 760, 763 (1993); see also Mullinax, supra. The purpose of requiring the surviving spouse to notify the PR is to notice the estate of the claim. By applying an erroneous interpretation of "delivery," courts place a surviving spouse in an impaired economic position contrary to the statute's purpose. Therefore, under § 62-2-205(a), delivery only requires placing the petition in the actual or constructive possession or control of the personal representative.
Petitioner claims the Court of Appeals failed to address whether delivering the claim for an elective share to Bryant, as the PR's personal attorney, satisfied the requirements of the statute.
Although the Court of Appeals did not expressly rule petitioner failed to prove Bryant was the PR's personal attorney, this finding can be inferred from the Court of Appeals' reference to Bryant as the attorney for the estate. In our opinion, the Court of Appeals erred in concluding Bryant was only the attorney for the estate. In the July 12, 1996 letter, Bryant acknowledged receipt of the petition for an elective share and suggested he discussed the petition with his client, the PR, thereby indicating the PR at least constructively controlled the petition. Moreover, at oral argument before this Court, Bryant conceded the existence of an attorney/client relationship between the PR and himself. The Court of Appeals should have considered the effect of delivery of the elective share claim to Bryant, as the PR's personal attorney.
This Court has consistently recognized an attorney is the "alter-ego of his client" and the attorney stands in the place of the client. Anderson v. Anderson, 198 S.C. 412, 18 S.E.2d 9 (1941); see also Equilease Corp. v. Weathers, 275 S.C. 478, 272 S.E.2d 789 (1980); Culbertson v. Clemens, 322 S.C. 20, 471 S.E.2d 163 (1996). "Notice to an attorney is effective as notice to the client when the notice is received in the course of the transaction in which the attorney is acting." 7 Am.Jur.2d Attorneys at Law § 148 (1997).
*392 Bryant was the PR's personal attorney, and delivery of the elective share claim to Bryant, as the "alter-ego of his client," was delivery to the PR under § 62-2-205(a).[4]
REVERSED AND REMANDED.[5]
FINNEY, C.J., TOAL, MOORE, and WALLER, JJ., concur.
NOTES
[1]  Petitioner attempts to analogize this case with In re Estate of Tollison, 320 S.C. 132, 463 S.E.2d 611 (Ct.App.1995). Tollison interprets the manner of delivery of a claim against the estate to the PR pursuant to S.C.Code Ann. § 62-3-804(1) (Supp.1998). The language of this provision is identical to § 62-2-205(a) in that both require mailing or delivering the claim to the PR. In Tollison, the Court of Appeals, found the provision was procedural and applied a liberal construction. The court held the mailing of the claim to the PR, through his attorney, constituted proper presentation of the claim. However, because this Court has held the elective share statute is to be strictly construed, Tollison is not applicable.
[2]  Rule 4, SCRCP, applies to service of the complaint and summons. Rule 5, SCRCP, applies to service of the answer, other pleadings, motions and orders.
[3]  See S.C.Code Ann. § 62-3-1305 (1987) (regarding sale of real estate); § 62-1-401 (1987) (regarding personal service in guardianship proceedings).
[4]  We leave for another time the question whether the attorney/client relationship between the attorney for the estate and the personal representative is sufficient to trigger the "alter-ego" theory of delivery.
[5]  Because we decide delivery was effective when made to Bryant, as the "alter-ego of the client," we decline to address petitioner's remaining arguments.


                  THE THIRTEENTH COURT OF APPEALS

                                   13-16-00220-CR

                                 Jeremy Jay Cuevas
                                         v.
                                 The State of Texas

                                 On Appeal from the
                      156th District Court of Bee County, Texas
                         Trial Cause No. B-16-2003-0-CR-B

                                     JUDGMENT

      THE THIRTEENTH COURT OF APPEALS, having considered this cause on

appeal, concludes that the judgment of the trial court should be reversed and the cause

remanded to the trial court.     The Court orders the judgment of the trial court

REVERSED and REMANDED for further proceedings in accordance with its opinion.

      We further order this decision certified below for observance.

March 8, 2018


114 Cal.App.3d 650 (1981)
171 Cal. Rptr. 73
JAMES BREE, Plaintiff, Cross-defendant and Respondent,
v.
RICHARD E. BEALL et al., Defendants, Cross-complainants and Appellants; CORTEZ INVESTMENT CO., INC., Cross-defendant and Respondent.
Docket No. 22042.
Court of Appeals of California, Fourth District, Division One.
January 15, 1981.
*653 COUNSEL
Stephen L. Wheeler for Defendants, Cross-complainants and Appellants.
Larkin & Appelt, David M. Larkin and Gary N. Appelt for Plaintiff, Cross-defendant and Respondent and for Cross-defendant and Respondent.
OPINION
STANIFORTH, Acting P.J.
James Bree's dba Cortez Development Co., Inc., (Bree) suit sought damages for breach of a subcontractor's *654 agreement from R.E. Beall Construction Co. and Richard E. Beall, individually (Beall). R.E. Beall Construction Co. (the Company) cross-complained against Bree for damages for breach of a subcontractor's agreement and sought foreclosure of a mechanics' lien. This dispute was by stipulation submitted to arbitration. The arbitrator's award  entered March 15, 1979  ordered Bree, inter alia, "shall pay to Beall the sum of $11,515 ... with legal interest to the date of payment of this award from August 17, 1977, in full satisfaction of all claims made on this action." (Italics added.)
During the pendency of these proceedings, the United States Internal Revenue Service (IRS) served Bree with a notice of levy (Nov. 2, 1978) naming R.E. Beall Construction Co. as the taxpayer debtor owing back taxes in the sum of $24,491.82. Beall's attorney (Wheeler) notified Bree's attorney (Larkin) on March 19, 1979, by letter: "This is ... to advise you that I hold an attorney's lien on the Judgment and any payment thereon should be made to my trust account." Bree after receipt of the Wheeler letter paid the entire amount of the arbitrator's award ($12,804.68) to the IRS (Mar. 23, 1979). Three days later, judgment was entered in the superior court conformable to the arbitration award, against Bree and in favor of the individual Beall for the principal sum of $11,515 plus interest. The sum paid by Bree in response to the IRS notice of levy exceeded the total judgment and accrued interest then owing. Bree demanded a satisfaction of judgment. Attorney Wheeler responded by letter (Mar. 28, 1979): "... I do not feel bound to provide a Satisfaction of Judgment for the following reasons: A. The Judgment is in favor of R.E. Beall, individually while the tax lien is against the corporation [R.E. BEALL CONSTRUCTION CORPORATION]. B. I have a lien against the Judgment for attorney's fees, a fact of which you were advised approximately two (2) week [sic] ago."
On that same day, Beall assigned the judgment to Phil Kosh who promptly sought foreclosure of the mechanics' lien granted by the judgment and to levy execution on Bree's bank account. Bree countered with motions to recall and quash the levy of execution and sale order, to compel satisfaction of the judgment, and to amend the judgment nunc pro tunc to correct the judgment to show "R.E. Beall Construction Corporation" as the judgment creditor. After hearing the trial court granted each of Bree's motions. Beall, the Company and assignee Kosh appeal from these orders.

*655 ISSUES
On appeal Beall contends (1) that the order amending the judgment nunc pro tunc substituting R.E. Beall Construction Co. in place of Richard Earl Beall constituted error, (2) that the IRS levy was ineffective against the judgment, (3) the IRS levy does not have priority over the attorney fees and court costs incurred in this litigation, (4) that Bree upon receiving notice of attorney's lien was obligated at least to inquire as to its nature and extent before paying the IRS levy.

FACTS
These further facts aid in resolution of the issues presented. The framing subcontract with Bree was executed by Richard E. Beall in his individual capacity and referred to a California contractor's license in his name. Both the individual Beall and the Beall corporation executed the retainer agreement with Attorney Wheeler agreeing to a contingency fee of one-third of any recovery made in the Bree lawsuit and granting him a lien against any judgment to protect his court costs and attorney fees. In response to Bree's suit against both Beall and the Beall corporation, the R.E. Beall Construction Corporation filed the cross-complaint upon which the arbitrator's award was ultimately made. On September 1, 1978, Bree's attorney was notified of a request to substitute the individual Beall in place of the corporate Beall. Individual Beall (Oct. 16, 1978) in connection with an unrelated matter granted an additional lien for attorney fees against the judgment to Attorney Wheeler in the sum of $2,453.10.
Included in the "Stipulations of Fact for Arbitration" was the following critical language: "That RICHARD E. BEALL, individually and doing business as R.E. BEALL CONSTRUCTION CO. and R.E. BEALL CONSTRUCTION CORPORATION may be considered one party for the purposes of this litigation, and judgment rendered against one may be rendered against all of said parties."
The arbitration award declared "Bree shall pay to Beall" and the judgment entered on the arbitration award provided "RICHARD EARL BEALL recover on his cross-complaint from ... Bree." (Italics added.)

DISCUSSION

I
(1) The individual Beall argues prejudicial error occurred when the trial court corrected the judgment substituting the corporate Beall in *656 place of the individual Beall as judgment creditor. The contention ignores the fact that the cross-complaint upon which the judgment was ultimately obtained was filed by the corporate Beall and of even greater significance is the stipulation clearly and specifically agreeing that the individual and corporate Beall "may be considered one party for the purposes of this litigation...." The recitation of the ebb and flow of the individual versus corporate right/responsibility in the contract, lawsuit and pleading, arbitration documents, award and judgment suggest this conclusion: the trial court's warranted treatment  as the parties' express stipulation provides  of the corporate and individual Beall as "one party."
The stipulation in question was drafted by Beall's own counsel; if there is any uncertainty as to its meaning and effect, and we find none, the stipulation must be construed most strongly against the drafting party. (Civ. Code, § 1654.)
If the entire process be viewed with charity, then at minimum it can be said the signed pleadings and the stipulation of the parties point unerringly to a clerical error in the arbitration award and in the judgment itself. In Meyer v. Porath (1952) 113 Cal. App.2d 808, 811 [248 P.2d 984], the court stated: "A finding, express or implied ... that a clerical error exists in the judgment in question is, if supported by substantial evidence, a conclusive finding which binds an appellate court on review." (See also Bastajian v. Brown (1941) 19 Cal.2d 209, 215 [120 P.2d 9].) Here, clearly, substantial evidence supports the court's conclusion there was a clerical error in the judgment.

II
(2) Beall next complains that the IRS levy was ineffective against the judgment in this case since it named the corporation, not the individual Beall, as the debtor-taxpayer. Internal Revenue Code section 6332(a) provides "[A]ny person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made shall, upon demand of the Secretary, surrender such property or rights (or discharge such obligation) to the Secretary, except such part of the property or rights as is, at the time of such demand, subject to an attachment or execution under any judicial process." It should be noted parenthetically, seven days after payment of the judgment proceeds to the IRS, a further IRS levy was served (Mar. 30, 1979) naming Beall individually. Beall's argument rests on *657 the fact that the judgment was entered in favor of the individual instead of the corporation or both. In George v. Bekins Van & Storage Co. (1948) 83 Cal. App.2d 478, 481 [189 P.2d 301], it was held: "If a judgment is corrected because of a clerical error or mistake either by amendment or the substitution of a wholly different judgment, the amended or substituted judgment speaks as though originally entered in its amended or substituted form." (Italics added.) The individual Beall's rights must be measured against the judgment as corrected, not the original, uncorrected judgment.
Finally the stipulation of the parties makes this argument most specious. That stipulation alone would have warranted payment of an IRS levy (assuming no other intervening equities) made against either the individual or corporate Beall for they are one party "for the purposes of this litigation."

III
(3a) Beall next contends the IRS levy does not have priority over attorney fees and court costs incurred in this litigation. In analyzing this assertion, we start from this premise: "It is now well settled and indeed beyond argument that federal law rather than state law determines the priority of competing liens where one of them is a tax lien asserted by the United States." (Business Title Corp. v. Division of Labor Law Enforcement (1976) 17 Cal.3d 878, 884 [132 Cal. Rptr. 454, 553 P.2d 614].)
Section 6323(b)(1-8)[1] "clearly and unequivocally create superpriorities, even against previously filed tax liens [...] of which a certain class of attorneys' liens is one." (Adco Service Inc. v. Graphic Color Plate (1975) 137 N.J. Super. 39 [347 A.2d 549, 553]; Connecticut Mutual Life Insurance Company v. Carter (5th Cir.1971) 446 F.2d 136.)[2]
*658 The United States Supreme Court declared this act gives priority to eight specified classes of nonfederal lien "even when the Government has filed notice of the tax lien." (United States v. Kimbell Foods (1979) 440 U.S. 715, 738, fn. 41 [59 L.Ed.2d 711, 730, 99 S.Ct. 1448, 1463.)
Thus the pre-1966 rule of priority in time giving priority in right and the requirement of "choateness" do not apply where the conditions of section 6323(b)(8) are met.
We conclude Attorney Wheeler's claim of lien, insofar as it relates to the judgment against Bree, is of the species of lien that meets the requirements of the quoted statute. (See Adco Service Inc. v. Graphic Color Plate, supra, 347 A.2d, pp. 553-554; Plumb, Federal Liens and Priorities  Agenda for the Next Decade II (1968) 77 Yale L.J. 605, 682-683.)

IV
This rule is but prologue to the decisive issues in this case. (4) While the federal law establishes the priority of these competing liens, it is the state law, not federal law, that controls and determines whether a taxpayer has "property and rights to property" to which a federal lien can attach. (26 U.S.C.A. § 6321; Business Title Corp. v. Division of Labor Law Enforcement, supra, 17 Cal.3d 878, 885; Aquilino v. United States (1960) 363 U.S. 509, 513, 514 [4 L.Ed.2d 1365, 1368, 1369, 80 S.Ct. 1277].) Thus the superior court was vested with jurisdiction to pass upon the validity of Wheeler's lien and to determine the "reasonable compensation" to be allowed for his services in obtaining the judgment. (Lavenburg v. Universal Sportwear (1950) 198 Misc. 318 [98 N.Y.S.2d 160, 164]; Adco Service, Inc. v. Graphic Color Plate, supra, 347 A.2d 549, 552-554; 28 U.S.C.A. § 2410(b); cf., Business Title Corp. v. Division of Labor Law Enforcement, supra, 17 Cal.3d 878, 885.)
*659 Moreover, the United States government, if the total proceeds of the judgment had not been paid over by Bree, was a proper and necessary party to the proceeding for its tax lien was sought to be reduced. The provisions of 28 United States Code Annotated section 2410(a) waive sovereign immunity from suit and authorize joinder of the United States as a party where enforcement of a lien on property is sought upon which the United States has or claims a lien.
(3b) In addition to the attorney fee for services in procuring the judgment, Wheeler claimed an additional lien in the sum of $2,453 arising in connection with a matter (re Watson) not related to the Bree judgment fund. This amount owed is not to be given priority over the federal tax lien under section 6323(b)(8), for it was not for attorney services in "obtaining" or "procuring" such judgment.

V
(5) Bree offers this further ground for invalidating in toto Wheeler's claim of lien on the judgment  inadequacy of notice of the attorneys lien to the judgment debtor. Four days before Bree paid over the entire judgment to the IRS he received a notice in writing informing him of Wheeler's claim of lien. No copy of the agreement creating the lien was sent or filed in the court. The terms and conditions or the amount of the lien were never disclosed to Bree. Wheeler's notification can be fairly interpreted as a demand for the entire judgment to be paid into Wheeler's trust account. No hint is given that Wheeler's claim is to be limited by law to "reasonable compensation" or that legal proceedings were necessary with the United States government as a necessary party to make that determination. This "notice" did not disclose the fact that at least part of the assigned lien(s) constituted claims not entitled to priority over the federal lien. Wheeler did not (has never to this date) sought adjudication of the reasonable compensation subject to his lien in any court of competent jurisdiction.
In this factual matrix, the trial court found the letter sent by Wheeler did not constitute notice of the attorney's lien so as to require Bree to withhold payment of the federal tax levy.
No special form of notice is required by California law. There are no applicable statutory provisions. "[A]ny notice which serves the purpose of protecting the judgment debtor is ... sufficient...." (7A C.J.S., Attorney and Client, § 367, p. 730.)
*660 "All that is required is that the adverse party shall be given information sufficiently definite and certain to enable him to protect himself in dealing with the client." (Carter v. Dunham (1919) 104 Kan. 59 [177 P. 533, 534]; Goldberg's Loan Office v. Evans (1934) 169 Okla. 397 [37 P.2d 286].) "All that is actually required is that the notice shall contain a general statement of the amount claimed and of the services for which it was rendered." (7A C.J.S., Attorney and Client (supra) § 367, pp. 730-731; fns. omitted.) Beall's reliance upon Skelly v. Richman is misplaced. (10 Cal. App.3d 844 [89 Cal. Rptr. 556].) Skelly factually involved an action for inducing breach of a contingent fee contract. The sole case authority relied upon by Skelly for the statement that the notice need not include the percentage figure of the fee contract is Northrup v. Hayward (1907) 102 Minn. 307 [113 N.W. 701], where the court found the defendant had "full notice of the claim" and settlement was made to defraud the attorney of his fee. (P. 702.) Nor do the cases recited in the annotation in 85 A.L.R.2d 863-866 support any blanket excuse from responsibility of an attorney lien claimant who fails to give sufficient notice to the judgment debtor to enable him to protect himself against the clients creditors  here a federal lien claimant.
In the case of Franchise Tax Bd. v. Municipal Court (1975) 45 Cal. App.3d 377, 380 [119 Cal. Rptr. 552], Golden had served the Los Angeles Police Department with a "Notice of Assignment and Demand for Funds" executed by Burton Marks, an attorney-at-law. The notice recited the seized funds were the property of "our clients" and "have been assigned irrevocably to attorney Burton Marks." Delivery of the funds was demanded forthwith. The appellate court held: "That notice was considered by the trial court and properly determined to be of no legal significance in view of its conclusionary nature and the failure to state from whom the funds were assigned or that the assignor had any right to the money." (Pp. 387-388.)
Attorney Wheeler's letter is similarly a conclusionary statement of claim. There was no delivery of the attorney retainer agreement or assignment. Bree had no factual basis upon which he could protect himself in dealings with Beall's creditor, the IRS.
Bree faced a demand from the United States government for turnover of all of the judgment monies. Wheeler's demand was not for a specific part or sum, or for reasonable compensation to be ascertained by a court of competent jurisdiction; Wheeler improperly demanded the entire amount. Had Bree complied with Wheeler's legally unauthorized *661 demand, he would have subjected himself not only to double payment but also to a 50 percent penalty for failing and refusing to surrender any property subject to levy. (26 U.S.C.A. § 6332 (c)(2).)
We conclude the notice given by Wheeler to Bree did not give Bree sufficient information to protect himself against the client Beall (or corporate Beall's) creditor  the IRS. Substantial evidence supports the trial court's conclusion of insufficiency of the notice given to Bree.

VI
These further rules of law support the trial court's refusal to enforce Wheeler's lien against Bree. (6) The lawyer's lien is an "equitable right" (Isrin v. Superior Court (1965) 63 Cal.2d 153, 158, 159 [45 Cal. Rptr. 320, 403 P.2d 728]; Tracy v. Ringole (1927) 87 Cal. App. 549, 551 [262 P. 73]) and equitable principles enter into the creation, perfection and allowance of such a lien. In seeking a right based on equitable principles Wheeler was required to do equity. Bree was faced with a certain hard choice  not of his own making  a demand from the federal taxing authorities to pay over all the money owed or be penalized. Wheeler's improper nonspecific over demand placed Bree in a trap. Bree's failure to take some affirmative action to encourage or require Wheeler to give a sufficient or proper notice or to advise him to take such legal steps as necessary to protect his lien vis-a-vis the federal claim do not excuse Wheeler's defaults and actual delicts. It was Wheeler's duty to notify and perfect his right  not Bree's. Bree was between the proverbial rock and a hard place. His response  perhaps hasty  was to pay  to the extent of the judgment funds  Wheeler's client's tax bill. Thus Bree conferred a benefit on Beall under circumstances in which he cannot be regarded as a volunteer. While Wheeler has lost his lien rights  to reasonable compensation  he retains his contractual right against his principals. Finally there is no hint of any collusion between Bree and Beall to defraud the attorney of his rightful fee. From the foregoing factual matrix, equitable principles emerge which uphold the trial court's refusal to enforce the attorney's lien against Bree.

VII
(7) Beall further contends the additional lien (Watson matter) granted to Attorney Wheeler in the sum of $2,453.10 and the concurrent assignment to Phil Kosh of the entire judgment constituted a *662 "security interest" in the judgment within the purview of Internal Revenue Code section 6323(a), which provides: "The [federal tax] lien imposed by section 6321 shall not be valid as against any purchaser, holder of a security interest, mechanic's lienor, or judgment lien creditor until notice thereof which meets the requirements of subsection (f) has been filed by the Secretary."
As defined by Internal Revenue Code, section 6323(h)(1): "The term `security interest' means [for purposes of § 6323] any interest in property acquired by contract for the purpose of securing payment or performance of an obligation or indemnifying against loss or liability. A security interest exists at any time (A) if, at such time the property is in existence and the interest has become protected under local law against a subsequent judgment lien arising out of an unsecured obligation, and (B) to the extent that, at such time, the holder has parted with money or money's worth."
These additional liens claimed by Beall are not a "security interest" as defined by the Internal Revenue Code section 6323(h)(1), supra, for the judgment was not entered until March 26, 1979, and thus did not exist on October 16, 1978.
Furthermore, it is provided under California Uniform Commercial Code section 9301, subdivision (1): "[A]n unperfected security interest is subordinate to the rights of ... (b) A person who becomes a lien creditor before the security interest is perfected." Further, Uniform Commercial Code section 9302, subdivision (1) provides: "A financing statement must be filed to perfect all security interests except" those thereinafter described. The claim by Attorney Wheeler here is not such security excepted from the general rule of the Commercial Code requiring a financial statement be filed in order to perfect a security interest.
If it be assumed arguendo that the rendition of services by the attorney constitute "a parting with money or money's worth" within the meaning of Internal Revenue Code section 6323(h)(1), it still does not appear to what extent, if any, Attorney Wheeler has parted with money or money's worth at any time before or on or after October 16, 1978, in connection with the Watson claim of lien.
The agreement of October 16, 1978, to assign the balance of the judgment to Phil Kosh was not a security interest in the judgment as *663 defined by Internal Revenue Code section 6323(h)(1), for the identical reasons.
In all respects the judgment is affirmed.
Butler, J.,[*] concurred.
WIENER, J., Concurring and Dissenting.
In denying Attorney Wheeler his lien for attorney fees the majority concludes "[s]ubstantial evidence supports the trial court's conclusion of insufficiency of the notice given to Bree" and "equitable principles emerge which uphold the trial court's refusal to enforce the attorney's lien against Bree." I do not agree with either conclusion.
Internal Revenue Code section 6323(b)(8), provides a federal tax lien does not supersede a lien for attorney's fees against a judgment "to the extent of [the attorney's] reasonable compensation for obtaining such judgment...." Clearly, Attorney Wheeler's lien is in this superpriority category. (See fn. 2, ante.) No particular form of notice is required to inform the judgment debtor of the lien. Only that information is required which will avoid placing the judgment debtor at risk.
Here, Wheeler told opposing counsel of his attorney's lien and that he would be claiming priority over the levy to the extent of his fees. His telephone conversation of March 15, 1979, was confirmed by letter the same date, in which he said, "This is also to advise you that I hold an attorney's lien on the Judgment and any payment thereon should be made to my trust account. On payment I will provide you with full satisfaction of judgment and releases of Mechanic's Lien. Please call if you have any questions." Opposing counsel received the letter on March 19, 1979, two days after he had approved the judgment as to form. On March 23, 1979, apparently in a moment of patriotic zeal, Bree felt legally obliged to mail his check to the Internal Revenue Service to satisfy the judgment which was not final (the judgment was filed Mar. 6, 1979) in order to comply with a levy which he had managed to treat with benign neglect for approximately four and one-half months. This record does not indicate why Bree did not respond earlier indicating he was not indebted to Beall, since on the date of the levy he claimed Beall owed him money.
*664 Wheeler's letter requesting opposing counsel to call if he had any questions was in itself sufficient reason for Bree to withhold payment to the IRS. It is not as if this case involved metaphysical issues understood by only those who are able to write on the head of a pin. Lawyering, and the legalese associated with it, hasn't reached that level of complexity where the statement, "I hold an attorney's lien" in the context used here required further clarification. In the jargon customarily used by lawyers that phrase should reasonably have put opposing counsel on notice Wheeler had a lien for fees the amount of which could have been determined with a minimum of effort. A client's triumph should not turn on either his or his lawyer's gamesmanship. At a minimum Bree's counsel had the obligation to telephone Wheeler to explain his client's wish to pay the sum involved directly to the Internal Revenue Service to enable Beall to take appropriate legal steps. If something more formal was required Bree could have done what everyone else does in these situations (e.g. Business Title Corp. v. Division of Labor Law Enforcement (1976) 17 Cal.3d 878 [132 Cal. Rptr. 454, 553 P.2d 614]) namely file a stakeholder's action, deposit the money and let the Internal Revenue Service and the claimants (here, Wheeler) fight it out. To say that Bree was between a rock and a hard place is to ignore the innumerable legal options, including the basic characteristic of good manners, which were available to him.
Even the trial court did not rest its decision on the fact that notice of Wheeler's lien was inadequate. The court found as a matter of law that the letter, "an unfiled and unrecorded document, [cannot] under the existing Internal Revenue Code, take priority." I am reluctant to join the majority in upholding a factual determination based on the substantial evidence rule when none was made.
I would remand to the trial court for a further hearing to determine the extent of Wheeler's reasonable compensation in obtaining Beal's judgment against Bree and impose liability against Bree accordingly.
NOTES
[1]  Internal Revenue Code section 6323(b)(8) provides: "Even though notice of a lien imposed by section 6321 has been filed, such lien shall not be valid  (8) With respect to a judgment or other amount in settlement of a claim or of a cause of action, as against an attorney who, under local law, holds a lien upon or a contract enforcible against such judgment or amount, to the extent of his reasonable compensation for obtaining such judgment or procuring such settlement, ..."
[2]  Senate Report No. 1708, 3 U.S. Code Congressional and Administrative News (1966) (p. 3727), with respect to attorneys' liens states: "A sixth new category of superpriority added by the bill relates to attorneys' fees. Federal tax liens cover all of a taxpayer's property, including causes of action and any amounts which may be owed to him under judgments or settlements of suits or other proceedings. It is believed that attorneys whose efforts result in obtaining or collecting judgments or settlements should be protected as to their reasonable fees to the extent that the fees are protected under local law. An attorney's fee in such a case can be thought of as similar in concept to the repairman's charge in that it can be expected to enhance the value of the taxpayer's property."
[*]   Assigned by the Chairperson of the Judicial Council.


935 F.2d 271
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Betty F. SENTER, Plaintiff-Appellant,v.SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
No. 90-5981.
United States Court of Appeals, Sixth Circuit.
June 11, 1991.

Before BOYCE F. MARTIN, Jr. and BOGGS, Circuit Judges, and ENGEL, Senior Circuit Judge.
PER CURIAM.

1
Betty Senter appeals from the denial of her application for disability benefits by the Secretary and the district court.  Because substantial evidence supports the Secretary's determination, we affirm the denial of benefits.

2
* Senter worked as a dog groomer out of her own home from 1970 to March 9, 1984.  She alleges that she stopped work permanently on that date because pain in her neck and arm had become intolerable.  Senter had two operations in early 1984 that successfully relieved that pain.

3
Senter had already applied for disability benefits by the time of her operations.  She visited her treating neurosurgeon, Dr. Harold Smith, on June 12, 1984, before the first disability hearing.  She stated then that she had no shoulder, neck or radicular arm pain, but that she had some lower back pain.  Dr. Smith believed she was depressed and anxious about her lower back pain, which was not improving despite exercise.

4
Senter's original attorney requested information from Dr. Smith in connection with this first application.  Dr. Smith replied that he did not believe Senter was totally disabled.  While he said "she cannot perform a job where she either has to stand for a prolonged period of time, or walk for any extended period of time," he noted "she could do a sedentary type job quite easily where she was not lifting or doing heavy labor."    Smith repeated that assessment in a letter given to Senter, addressed "To Whom It May Concern" and dated July 31, 1984.  Relying in large part on Dr. Smith's assessment, an ALJ denied her application on October 26, 1984.  Senter did not appeal.

5
Senter continued to feel uncomfortable, and saw doctors and a psychologist.  She saw Dr. Smith on numerous occasions, and his assessment did not significantly change.  On October 12, 1984, he noted that she was experiencing "a little pain and numbness in the arm," but "was doing about the same overall."    On June 26, 1985, he discounted her complaints of pain with the following statement:

6
If you question Mrs. Senter in the office, she does indeed have a myriad of complaints....  Her numerous complaints of body aches are completely unrelated in my opinion and I think she definitely has a strong component of anxiety.  My observations are immediately clouded by the fact that on the same day that she is seen in my office, I also get a request from the Disability Determination Section requesting her records.  I therefore cannot help but be mildly skeptical of her complaints as she previously had a flare-up of complaints when she was awaiting another disability hearing.

7
On July 11, 1985, he stated that many of her complaints are consistent with her depression, and on September 5, 1985 he wrote her a letter telling her that rating her impairments according to AMA guidelines, as he would be required to do, "will not put you on complete disability."

8
Senter also visited three other doctors before the expiration of her insured status on September 30, 1985.  Dr. William Clark stated that Senter's spinal stenosis would make it difficult for her to stand for "an extended period of time," but he filled out a residual functional capacity (RFC) assessment form stating she could sit for eight hours a day and had no limitations on her ability to reach, handle, or finger things.  Drs. Edmund Benz and Louise Patrhan also filled out RFC forms, with both doctors concurring that Senter could sit about six hours out of an eight-hour day and had no limitations on her handling, reaching or fingering abilities.

9
Dr. Scott Gale performed a psychological examination on Senter on July 5, 1985.  He found that she felt trapped in life and unable to change her condition.  Despite her fears, she was active.

10
She generally awakens at 8:00 in the morning and is able to take care of her personal needs without assistance....  She tries to wash some clothes, though she noted that some days she cannot do any housework at all whereas other days she can do light housework.  She tries to wash dishes, though she is prone to cut herself because of the numbness in her hand.  She walks in the yard two or three times a day for exercise.  She feeds chickens about her farm.  She often lies on the couch and watches television.  She enjoys soap operas such as As The World Turns and The Young and The Restless.    She used to enjoy crocheting and occasionally tries to now but finds she lacks the dexterity required.  She is able to drive and will drive short distances if no one is available to drive her.  She and her husband go shopping every two weeks.  She generally does the shopping, then gets her husband to stand in the checkout line as she cannot endure the pain involved in standing.  She visits her mother-in-law about twice a week for an hour or two each visit.

11
Senter's own descriptions of her activities on her benefit applications mention many of these activities in less detail.

12
A great deal of evidence regarding her physical condition was generated after the expiration of her insured status.  After examining Senter in February 1986, Dr. John Sergent opined that Senter had fibrositis, a condition of generalized aches and pains.  He further opined that her problems stemmed mostly from an inability to sleep well because of her pain.  Dr. Smith also assessed Senter's capacities in 1986 when he filled out an RFC form for Senter's new attorney on July 14, 1986, and referred the attorney to a letter he wrote to Dr. Sergent on February 13, 1986.  The RFC form stated that Senter could only sit up to four hours in an eight-hour day, that she could stand only two hours in such a day, and was completely capable of using her hands for simple grasping and fine manipulation.  His February 13 letter states that "[s]he certainly continues to have bilateral radicular arm pain" and "that this lady in my opinion does have a significant component of anxiety and depression."

13
More information was developed in 1987 and 1988.  Dr. Smith, in a discharge form from Baptist Hospital dated February 11, 1987, stated again that he thought her problem was related to her depression.  Dr. Sergent filled out an RFC form in March 1988 and opined that Senter could stand no more than one hour in an eight-hour day, and could sit for no more than three of those hours.  Dr. Clark also filled out a medical assessment form in September, 1987 and found neither her sitting nor her manual dexterity impaired in any way.

14
Other information on her condition includes a diagnosis from neurologist Rex Arendall, and letters from her family and friends.  Dr. Arendall saw her for the first time in September 1987, and found chronic lumbar and cervical radiculopathy, cervical spondylosis, and osteosclerosis.  By July 1988, he found her pain had stabilized but that she was depressed about her situation.  He opined that she should not bend, stoop, or lift more than twenty-five pounds on a repetitive basis at home or work.

15
Mr. and Mrs. Seagraveses' letters to the court stated that Senter's physical abilities had markedly declined.  Mrs. Seagraves's letter stated that Senter has been unable to do anything involving physical labor except light housework and cooking since the summer of 1985, and that her condition had markedly declined from November 1987, when the Seagraveses moved to Illinois, through July 12, 1988.  Mr. Seagraves corroborated his wife's statement about Senter's decline after their move to Illinois.  Saucy Penrod wrote to say that Senter had been functionally housebound since her retirement from work in 1984.

16
Senter's application was denied in 1986 by an Administrative Law Judge ("ALJ" ), but was remanded to the ALJ following the decision in Samuels v. Bowen, No. 82-2827-M (W.D.Tenn. March 16, 1987).  Upon re-examination, the ALJ again denied her application for benefits on August 28, 1988.  In both instances, the ALJ found that Senter's pain only prevented her from walking or standing extensively and performing her work as a dog groomer.  The ALJ then applied the grids to find that although Senter could not return to her previous job as a dog groomer, she retained the physical capability to perform sedentary work.  This appeal followed after the Appeals Council and the district court affirmed the ALJ's decision.

II

17
Our review of appeals from the denial of social security disability benefits is limited.  We must affirm the Secretary's determination if it is supported by substantial evidence, Houston v. Secretary of Health and Human Services, 736 F.2d 365 (6th Cir.1984), even if substantial evidence also exists to support the opposite determination.    Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.1986).  An applicant must prove that a disability arose during the time period which the applicant was eligible for social security benefits.  Any previous application that was denied acts as res judicata for any disability claim up to that date.    Siterlet v. Secretary of Health and Human Services, 823 F.2d 918 (6th Cir.1987).  Here, Senter's previous application was denied on October 26, 1984, and her insurance eligibility expired on September 30, 1985.  Thus, she must prove that she became disabled between October 27, 1984 and September 30, 1985.

18
We believe that substantial evidence exists to support the Secretary's determination that Senter was not disabled during the appropriate time period.  Not one doctor opined that she was disabled during that period.  Dr. Smith, her treating neurologist, stated both privately and in letters to Senter and her attorney that she was physically capable of working at a sedentary job without substantial physical demands.  Dr. Gale reported that her daily activities included light housework, feeding chickens, and walking in her yard for exercise.  These activities demonstrate a significant physical capacity.  Additionally, the other doctors who filled out RFC forms all opined that she could sit at least six hours during an eight-hour day, and that she had no limitations on her ability to use her hands and fingers for grasping and manipulation.  Sedentary work is defined as involving lifting no more than ten pounds at one time, standing and walking occasionally, and sitting for at least six hours in an eight-hour day, 20 C.F.R. Sec. 404.1567(a);  Wages v. Secretary of Health and Human Services, 755 F.2d 495, 498 (6th Cir.1985), and requires bimanual dexterity.  Absolutely no medical evidence exists from the relevant time period to suggest that she did not meet the requirements for sedentary work.

19
Senter relies on evidence that came into existence after the expiration of her insured status for her claim that the grids were improperly applied.  She notes that Dr. Smith's assessment, dated July 14, 1986, stated that she could sit no more than four hours in each eight-hour day and that she was unable to use her hands and feet for pushing and pulling on arm controls or repetitive movements.  She contends that Dr. Smith's statement in July, 1984 that she could perform sedentary work should be discounted because Dr. Smith did not know the definition of "sedentary."    She arrives at this conclusion by pointing out that Dr. Smith stated that she could not perform "light work in a sedentary setting," and "light work" and "sedentary work" are two different terms with different definitions according to the grids.

20
Senter's argument requires us to interpret our holding in Blankenship v. Bowen, 874 F.2d 1116 (6th Cir.1989).  In Blankenship, we relied on evidence of a psychiatric exam that occurred four and one-half months after the expiration of the applicant's insured status to reverse the district court's determination that the applicant was not disabled.  Accordingly, we are not legally precluded from examining evidence that arises after the expiration date to establish that a claimant was disabled before the expiration date.

21
We view Blankenship as establishing that evidence of disability arising subsequent to the expiration date may be relied upon by a court when that evidence leads to a solid conclusion that the claimant was disabled during the claimant's insured status.  This principle provides a fair way to reconcile the rule that benefits are granted only for disabilities arising during the insured period with the fact that a claimant may not understand the rules so as to arrange medical examinations to coincide with the expiration of insured status.

22
The evidence we considered in Blankenship fit these guidelines perfectly.  The claimant suffered from a progressive mental impairment that had been increasing in severity over a number of years.  The psychologist examining Blankenship on November 13, 1985, specifically noted that he was 100% disabled, and that he suffered from a progressive disease that had been diagnosed at three previous exams in 1980, 1981, and 1982.    Blankenship, 874 F.2d at 1119-20.  Upon these facts, we concluded that Blankenship could not possibly have become wholly disabled on November 13 as the progressive nature of the mental disease must have disabled him at some earlier date.    Id. at 1121.  We noted that a physician who examined Blankenship in September 1985, only a little over two months after his expiration date, had found him sullen, hostile, and uncooperative, symptoms that were consistent with Blankenship's mental disorder of a schizophreniform or schizophrenic disorder.  As Blankenship's insured status only expired on June 30, 1985, there was no psychological evidence covering the period between September 1982 and November 13, 1985, and the Secretary did not contest the final determination that he was disabled on November 13, 1985, we held that the Secretary's determination that Blankenship was not disabled until that date was not supported by substantial evidence.

23
None of the factors that led us to consider the subsequently developed evidence in Blankenship are present here.  First, Blankenship's disease was a slowly progressive one.  His impairment progressed over time at a slow and fairly constant rate.  In mathematical terms, the progress of the disease over the time elapsed, if plotted on a graph, would show a line with a small slope.  That small slope permitted us to infer that it was almost certain that Blankenship was disabled as of his expiration date because Blankenship's condition could not have significantly changed over the small amount of time between the expiration date and November 13.

24
Of course, this approach is also applicable to cases involving rapid deterioration.  For example, a claimant suffering from rapidly spreading cancer who presented evidence of a physical evaluation establishing disability shortly after the expiration date might also qualify for disability under the Blankenship framework.

25
Here, Senter has not established that she has a progressive disease with a slope that would permit us to infer with substantial certainty that she was disabled as of September 30, 1985.  No medical evidence exists that shows a deterioration in her condition.  In fact, the medical evidence shows a remarkable stability in her condition.  Dr. Smith continued to opine that her problem was related to anxiety and depression, and never stated that her range of movement or reported pain had significantly increased.  Even Dr. Arendall, who saw her first in 1987, opined that her pain had stabilized by July 1988.  He also stated only that Senter should not stoop, bend, or lift more than twenty-five pounds at work.  This assessment is not significantly different than arrived at by Dr. Smith in mid-1984.

26
The letters from family and friends offered by Senter also do not paint a picture of a woman with a slowly progressive disease whose status had changed little since September 1985.  Mrs. Seagraves specifically remarks that Senter has markedly declined between November 1987 and July 1988.  If anything, this suggests that Senter's impairments have approached disability only lately, which unfortunately for Senter is well outside the legal cutoff date for eligibility.

27
Nor does Senter's evidence lead us to a solid conclusion that she was disabled during the relevant period.  Neither Dr. Smith nor Dr. Sergent explains why their assessments had changed since their examinations during the insured period.  Unlike in Blankenship, where there was no evidence regarding the progression of his mental impairment for the last three years of the insured period, here there is a wealth of medical evidence from the insured period supporting the Secretary's finding of no disability.  Also, Dr. Clark's assessment from 1987 contradicts Dr. Smith's and Dr. Sergent's in finding Senter capable of performing sedentary work, and Dr. Arendall's 1988 statement agrees with that assessment.  On this evidence, we cannot state that the subsequent evidence offered by Senter precludes a finding that substantial evidence supports the Secretary's conclusion that Senter had the physical capability to perform sedentary work as of September 30, 1985.

III

28
Senter also contends that she suffers from disabling pain arising out of her cervical and spinal problems.  She argues that the ALJ wrongly required her to demonstrate the existence of "an impairment so severe that it can reasonably be the basis of the pain."    Instead, she contends that the law only requires her to show the existence of "an impairment which could be the basis for the pain."

29
Senter is mistaken.  While pain alone can establish eligibility for disability benefits, McCormick v. Secretary of Health and Human Services, 861 F.2d 998 (6th Cir.1988), that pain must be severe.  A claimant's pain will only be found disabling when:

30
There [is] evidence of an underlying medical condition and (1) there must be objective medical evidence to confirm the severity of the alleged pain arising from that condition or (2) the objectively determined medical condition must be of a severity which can reasonably be expected to give rise to the alleged pain.

31
Duncan v. Secretary of Health and Human Services, 801 F.2d 847, 853 (6th Cir.1986).

32
Thus, the Secretary must try to gauge the severity of either the condition or the pain rather than simply trust claimant's testimony and see if something is wrong with her.

33
The Secretary's determination that Senter does not suffer from severe and disabling pain is supported by substantial evidence.  None of Senter's physicians have ever opined that she suffered from disabling pain.  Dr. Smith, her treating neurologist during the insured period, clearly thought that Senter's pain was attributable to nervousness or anxiety, and noted the coincidence between flare-ups in her complaints and the onset of her disability hearings.  While he said she did suffer from radicular arm pain, Senter does not show that such pain is inherently disabling and none of her neurologists considered it disabling.  Senter's underlying medical condition was not of the sort that could reasonably be expected to cause disabling pain.

IV

34
Senter also argues that the ALJ improperly discredited her testimony that she was disabled by pain, thereby understating the severity of her pain.  The ALJ stated that he did not "question [Senter's] integrity or honesty but the record suggests that the claimant tends to underestimate her abilities and to unconsciously perhaps exaggerate her discomfort."    The ALJ determined that Senter could not suffer from disabling pain and maintain the activities related by Dr. Gale.

35
This court will not lightly overturn the credibility determination of an ALJ.    Houston, 736 F.2d at 367;  Gooch v. Secretary of Health and Human Services, 833 F.2d 589, 592 (6th Cir.1987).  An ALJ can take the daily living activities of a claimant into account when making his determination.    Crisp v. Secretary of Health and Human Services, 790 F.2d 450, 453 (6th Cir.1986).  It is reasonable to infer that a person doing everything that Dr. Gale found in his psychological evaluation is not suffering from disabling pain.  The ALJ's credibility determination was not so incorrect as to permit reversal.

V

36
For the foregoing reasons, the district court's judgment and the Secretary's determination is AFFIRMED.


424 F.2d 633
HESS SHIPPING CORPORATION, Plaintiff-Appellee,v.The SS CHARLES LYKES, in rem and Lykes Bros. Steamship Co.,Inc.,Defendant-Appellant.LYKES BROS. STEAMSHIP CO., Inc., Plaintiff-Appellant,v.HESS SHIPPING CORPORATION and the ST. HESS VOYAGER, in rem,Defendant-Appellee.
No. 26703.
United States Court of Appeals, Fifth Circuit.
April 28, 1970, Rehearing En Banc Denied June 17, 1970.

George F. Wood, Mobile, Ala., Benjamin Yancey, Edward S. Bagley, New Orleans, La., for appellant.
Theodore K. Jackson, Jr., Rae M. Crowe, Mobile, Ala., for appellee.
Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, and INGRAHAM, Circuit Judges.
PER CURIAM:

1
On rehearing of this case en banc the court stands evenly divided, therefore the judgment of affirmance is adhered to by operation of law.

2
ON PETITION FOR REHEARING EN BANC OF THE EN BANC DECISION

3
No member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on the Petition for Rehearing of the En Banc decision (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for such Rehearing En Banc with oral argument is denied.


862 P.2d 529 (1993)
124 Or. App. 253
STATE of Oregon, Appellant,
v.
Pablo VENEGAS, Respondent.
DA 452178; CA A73138.
Court of Appeals of Oregon.
Argued and Submitted May 28, 1993.
Decided November 3, 1993.
*530 Janet A. Klapstein, Asst. Atty. Gen., argued the cause for appellant. With her on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.
Louis R. Miles, Deputy Public Defender, argued the cause for respondent. With him on the brief was Sally L. Avera, Public Defender.
Before ROSSMAN, P.J., and DE MUNIZ and LEESON, JJ.
ROSSMAN, Presiding Judge.
The issue presented in this case is whether a trial court may, under OEC 609, limit the introduction of impeachment evidence regarding a witness' prior felony conviction by allowing the state to prove the existence of a prior conviction, but preventing it from disclosing to the jury the name of the crime for which the witness was convicted. We hold that the court may not limit evidence under OEC 609 to such an extent. Accordingly, we reverse.
Defendant was charged with prostitution. ORS 167.007. Before jury selection, he moved to limit the introduction of evidence regarding the nature of his prior felony conviction for possession of a controlled substance. He asked that evidence of the existence of that conviction be admitted under OEC 609, but that the jury not be told the specific crime for which he had been convicted. The court concluded that the nature of defendant's felony conviction was prejudicial and without any probative value. It allowed defendant's motion and prohibited the state "from offering evidence of the name of the offense of which the defendant was convicted[.]" The state appeals. ORS 138.060(3).
OEC 609 provides:
"(1) For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record, but only if the crime (a) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, or (b) involved false statement or dishonesty.
"(2) Evidence of a conviction under this section is not admissible if:
"(a) A period of more than 15 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date; or
"(b) The conviction has been expunged by pardon, reversed, set aside or otherwise rendered nugatory.
"(3) When the credibility of a witness is attacked by evidence that the witness has been convicted of a crime, the witness shall be allowed to explain briefly the circumstances of the crime or former conviction; once the witness explains the circumstances, the opposing side shall have the opportunity to rebut the explanation." (Emphasis supplied.)
In sum, OEC 609(1) requires evidence of a prior felony conviction to be admitted in order to impeach a witness, provided that *531 the conviction is not stale and has not been set aside, and subject to the witness' right to explain the circumstances surrounding the conviction. The rule does not allow trial courts to engage in a process of weighing the probative value of the evidence against its prejudicial effect before admitting impeachment evidence of prior convictions. State v. Minnieweather, 99 Or.App. 166, 170-71, 781 P.2d 401 (1989); State v. Dick, 91 Or.App. 294, 298-99, 754 P.2d 628, rev. den. 306 Or. 528, 761 P.2d 929 (1988).
Evidence of a witness' prior felony convictions can be elicited from the witness or established by public record, e.g., the judgment of conviction. OEC 609(1). Although an extensive inquiry into the facts behind a judgment of conviction may in some cases be too time-consuming, cumulative or confusing to the jury, and therefore may be limited by the trial judge, see Boger v. Norris & Stevens, Inc., 109 Or.App. 90, 96, 818 P.2d 947 (1991), rev. den. 312 Or. 588, 824 P.2d 417 (1992), OEC 609 does not prevent the state from showing the nature of prior felony convictions that meet the other requirements of that rule.
Given that OEC 609(1) allows evidence of prior convictions to be admitted without resort to the judicial process of weighing probative value against prejudicial effect, the trial court erred when it excluded evidence of the nature of defendant's prior felony conviction on the ground that it was prejudicial and without any probative value. See OEC 403. As the Supreme Court held in State v. King, 307 Or. 332, 337, 768 P.2d 391 (1989), "[i]n the context of evidence presented pursuant to OEC 609, * * * [such] balancing is impermissible."
Reversed and remanded.