15 Cal.App.4th 711 (1993)
19 Cal. Rptr.2d 55
THE PEOPLE, Plaintiff and Respondent,
v.
KENNETH NOEL HORD, Defendant and Appellant.
Docket No. F017423.
Court of Appeals of California, Fifth District.
May 4, 1993.
*714 COUNSEL
Pedowitz, Reitz-Braze & Revvill, Neal Hart Pedowitz and Jack Carson Revvill for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Michael Weinberger and Suzanne M. Ambrose, Deputy Attorneys General, for Plaintiff and Respondent.
[Opinion certified for partial publication.[*]]
*715 OPINION
VARTABEDIAN, J.
Defendant, Kenneth Noel Hord, was convicted of one count of lewd and lascivious acts committed by use of force or fear (Pen. Code, § 288, subd. (b))[1] and one count of continuous sexual abuse of a child (§ 288.5), arising from his molestations of his stepdaughter Monica. Defendant appeals, claiming numerous errors. The contentions discussed in the unpublished portion of this opinion are claims of instructional error, prosecutorial misconduct, and improper multiple convictions and consecutive sentences. Our published discussion covers defendant's claims that it was improper to prosecute him for separate offenses under sections 288 and 288.5 and that the jury committed misconduct. We affirm.

FACTS
Lori H. married defendant in 1985. Lori's two children, Monica (born June 19, 1978) and Asa, lived with them. After defendant and Lori were married, defendant began hitting Lori, Monica and Asa.
During 1989, when Monica was 11 years old, defendant threatened to beat her and caused her to remove her clothes. He touched her vaginal area with his hand and fingers. On one occasion in 1989, Monica was coming out of the shower and was covered with only a towel. Defendant told her to take off the towel. She complied out of fear, and defendant touched her while she was standing in her bedroom. On other occasions, Monica got on her bed, as directed by defendant, and defendant touched her on her vagina. While defendant was touching Monica, he told her he was just checking to see if she was a virgin. During 1989, defendant engaged in these touchings whenever Lori and Asa were gone.
In 1990, defendant continued to molest Monica. The touchings occurred sometimes two or three times a day or every couple of days. Monica had her appendix removed on February 24, 1991. The last time defendant touched her was two weeks after the removal of her appendix.
Lori testified that defendant asked her if having sex with a 12- to 13-year-old girl would hurt the girl. Defendant also asked Lori how one could tell if a female was a virgin. One time, defendant remarked to Lori that Satan told him it would not be incest if he had sex with Monica. Defendant also informed Lori that he had lifted up Monica's towel once out of curiosity. He commented to Lori that Monica was "quite a woman."

*716 Defense

Joyce Adams, a medical doctor, examined Monica and found no physical abnormalities which could be associated with sexual molestations.[2]
Several witnesses testified that Monica was not truthful. Edward Foust, defendant's uncle, recalled seeing Monica put her hands all over defendant; defendant pushed her away. Defendant's cousin, Sheryl Lang, testified that Lori commented to her that Lori had made "little liars" out of Monica and Asa. Reverend Robert Culver testified that he did not believe defendant was capable of doing what he was accused of.

Rebuttal
Pamela Murphy saw defendant on the couch one day. He called Monica to him, and Monica got under a blanket with defendant. Pamela heard Monica say, "Don't, stop it."

DISCUSSION

I.
Defendant was convicted of a lewd and lascivious act by force or threat of force (§ 288, subd. (b)) "on or about 1989" and for continuous sexual abuse (§ 288.5) "on or about 1990 to March, 1991." Monica was the victim in each instance.
Defendant asserts that pursuant to In re Williamson (1954) 43 Cal.2d 651 [276 P.2d 593], the People could not charge a violation of section 288 in conjunction with a section 288.5 charge. He contends the language of section 288.5 also precludes such duplication of charges and that section 288.5 is the only count which could properly be charged.
In re Williamson, supra, 43 Cal.2d 651, 654, provides:
"`It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment. Where the special statute is later it will be regarded as an exception to or qualification of the prior general one; and where the general act is later the special statute will *717 be considered as remaining an exception to its terms unless it is repealed in general words or by necessary implication.' [Citations.]"
Section 288, subdivisions (a) and (b) provide:
"(a) Any person who shall willfully and lewdly commit any lewd or lascivious act including any of the acts constituting other crimes provided for in Part 1 of this code upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of the child, shall be guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or eight years.
"(b) Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or eight years."
Section 288.5 provides:
"(a) Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct under Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years.
"To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number.
"(c) No other felony sex offense involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative. A defendant may be charged with only one count under this section unless more than one victim is involved in which case a separate count may be charged for each victim."
As a preliminary matter, we find it helpful to trace the history surrounding the enactment of section 288.5.
*718 People v. Van Hoek (1988) 200 Cal. App.3d 811 [246 Cal. Rptr. 352] was a case involving a resident child molester. The victim gave generic testimony of repeated molestations without specifying a time, place or other particulars. Defendant was found guilty at trial of seven counts of child molestation based on this testimony. We held it was a due process violation to convict a defendant based on only the uncorroborated, unspecific testimony of the victim.
Prior to Van Hoek, the problems presented by resident child molestations under then-existing law were aptly addressed in the dissenting opinion in People v. Martinez (1988) 197 Cal. App.3d 767 [243 Cal. Rptr. 66], also a case from this court:
"If a child has been molested on a regular basis and in a consistent manner, e.g., `every day when my mommy went to work,' `every weekend when I would stay with my dad,' or `two or three times a week when Johnny would come to visit,' the child may have no meaningful reference point of time or detail by which to distinguish one specific act from another. Obviously, the more frequent and repetitive the molestation and the younger the victim, the less likely it becomes that the prosecution can establish one or more specific acts via the testimony of the minor victim. Since many aberrant practices leave no permanent physical evidence and since children are usually molested outside the presence of witnesses, the testimony of the minor victim may be the only evidence on which the prosecution can base its case; rendering such testimony inadequate as a matter of law under circumstances like those here under discussion could effectively insulate the most egregious child molesters from prosecution." (Id. at p. 778 (dis. opn. of Hamlin, J.).)
In People v. Luna (1988) 204 Cal. App.3d 726 [250 Cal. Rptr. 878], we suggested that it might be time for the Legislature to redefine the crimes resulting from acts of child molestation in continuum. (Id. at pp. 738, 749.)
The Legislature did just that in 1989 when it enacted section 288.5. The Legislature's purpose was clear and was expressly stated.
"(a) The Legislature finds and declares that because of the court's decision in People v. Van Hoek, 200 Cal. App.3d 811, there is an immediate need for additional statutory protection for the most vulnerable among our children, those of tender years, some of whom are being subjected to continuing sexual abuse by those commonly referred to as `resident child molesters.' These molesters reside with, or have recurring access to, a child and repeatedly molest the child over a prolonged period of time but the child, *719 because of age or the frequency of the molestations, or both, often is unable to distinguish one incident from another in terms of time, place, or other particulars, and as a consequence prosecutors are unable to provide the specificity of charges necessary to overcome the constitutional due process problems raised in the Van Hoek case within the framework of existing statutory law. As a consequence, some of our most vulnerable children continue to be at risk and some of our worst offenders continue to go unpunished.
"(b) It is the intent of the Legislature in enacting this act to provide additional protection for children subjected to continuing sexual abuse and certain punishment for persons referred to as `resident child molesters' by establishing a new crime of continuing sexual abuse of a child under circumstances where there have been repeated acts of molestation over a period of time, and the perpetrator either resides with or has recurring access to the child. It is the further intent of the Legislature that the penalty for this crime shall be greater than the maximum penalty under existing law for any single felony sex offense." (Stats. 1989, ch. 1402, § 1, p. 6138.)
In 1990, after section 288.5 had been enacted, the California Supreme Court filed the case of People v. Jones (1990) 51 Cal.3d 294 [270 Cal. Rptr. 611, 792 P.2d 643], in which it disapproved People v. Van Hoek, supra, 200 Cal. App.3d 811 and other cases which followed Van Hoek. (Jones, supra, at p. 322.)
"[E]ven generic testimony (e.g., an act of intercourse `once a month for three years') outlines a series of specific, albeit undifferentiated, incidents, each of which amounts to a separate offense, and each of which could support a separate criminal sanction. (Of course, prosecutors should exercise discretion in limiting the number of separate counts charged. No valid purpose would be served by charging hundreds or thousands of separate counts of molestation, when even one count may result in a substantial punishment.)" (People v. Jones, supra, 51 Cal.3d at p. 314.)
The Supreme Court went on to describe the necessary proof for sexual acts against children under the age of 14 years:
"The victim ... must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., *720 `twice a month' or `every time we went camping'). Finally, the victim must be able to describe the general time period in which these acts occurred (e.g., `the summer before my fourth grade,' or `during each Sunday morning after he came to live with us'), to assure the acts were committed within the applicable limitation period. Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim's testimony, but are not essential to sustain a conviction." (People v. Jones, supra, 51 Cal.3d at p. 316.)
In light of the disapproval of Van Hoek in People v. Jones, supra, the People are no longer required to prosecute under section 288.5 in order to gain a conviction against a resident child molester when the conviction is based on "generic testimony." While section 288.5 no longer is the sole vehicle for prosecution of this type of case, prosecution under this section has not been rendered impermissible.
(1) Directing ourselves to defendant's specific argument, we conclude sections 288.5 and 288 are not subject to the Williamson rule. "The doctrine that a specific statute precludes any prosecution under a general statute is a rule designed to ascertain and carry out legislative intent." (People v. Jenkins (1980) 28 Cal.3d 494, 505 [170 Cal. Rptr. 1, 620 P.2d 587].) The Legislature's intent in passing section 288.5 was not to enact a specific statute to apply in lieu of a general statute. The intent was to enact a statute for an area which the Legislature believed was not covered by any other law. That this statute's necessity was nullified by the Jones decision does not transform this statute into a specific statute under the Williamson rule since this was clearly not the Legislature's intent at the time of the enactment.[3]
(2) What occurred here does not violate the language of section 288.5. Section 288.5 requires that a minimum of three proscribed acts be committed against the child victim during a time period of not less than three months. It also requires that no other sex offense be charged involving the same victim unless the offense occurred outside the time period charged under section 288.5. Thus, there is no prohibition against charging a section 288.5 offense for a certain time period as long as that time period is at least three months in duration; nor is the prosecution prohibited from charging other sex crimes which occurred outside the charged time period. Charging additional crimes is not unfair. A defendant who committed a crime during an earlier time-frame or who continues to perpetrate sexual abuse for a longer period of time than that required by section 288.5 is more culpable than a defendant who perpetrates the continued abuse for a limited time.
*721 Based upon the testimony of Monica, the prosecutor could reasonably have charged many more singular acts which would have carried the potential of a substantially greater sentence for defendant. That the prosecutor chose to exercise his discretion and charge defendant under section 288.5, subjecting defendant to a possibly lighter sentence than if the prosecution had charged a multitude of singular offenses for the time period, inures to the defendant's benefit. There is nothing in section 288.5 or in Williamson that precludes the charging of a violation of section 288 in combination with a section 288.5 violation so long as the crimes charged involved different time periods.

II.-V.[*]
.... .... .... .... .... .... .... .

VI.
Defendant filed a motion for new trial based on jury misconduct. Declarations from two jurors were filed in support of the motion by the defense. Juror Alex Burgos stated:
"... During the deliberations, it was discussed among the jurors that the defendant did not say anything and did not testify. One juror stated that the guy didn't say anything. Another juror remarked that you don't say anything to protect yourself.
"... Also during the deliberations jurors were speculating regarding how much time the defendant would receive based on a guilty verdict.
"... When I was approached by a family member or a friend of the defendant after the trial and was told that everyone was against the defendant, I replied that this was because the defendant did not testify."
Juror Vernon Jones stated:
"During these deliberations several jurors discussed why the defendant did not take the stand and testify. In addition, several jurors also discussed what the defendant's possible sentence would be. This was in direct contradiction to what the judge instructed the jury prior to beginning our deliberations."
The People filed points and authorities in opposition to the motion for new trial. As part of their opposition, the People obtained and filed declarations from each of the 12 trial jurors. Burgos made a new declaration and it stated in pertinent part:
*722 "... During the deliberations, the fact that the defendant did not testify was mentioned but not discussed.
"... Also during the deliberations, we had already reached a verdict on at least one charge or count prior to what was said about if he would have have [sic] said anything maybe things would have been different." Jones also made a new declaration. It stated in pertinent part:
"During the Deliberations, there was a comment made about the defendant not testifying for himself. Also a Comment was made on what the defendant's sentence might be. However, in my opinion that if a man did not do what he was accused of he should say so."
The foreperson of the jury, James Bellamy, declared as follows:
"... During the deliberations, the comment was made as to why the defendant did not take the stand.
"... I, being foreman of the jury, interrupted and informed the jury that whether the defendant testified or not had no bearing on his guilt or innocence. This was not to be used in our decision making process. Any further discussion or talk whatsoever regarding testimony of the defendant was stopped."
Of the remaining jurors, five did not recall any comments during deliberations regarding defendant's not testifying. Of those five jurors, two did not recall any talk regarding defendant's possible sentence. The other three jurors did not mention the sentencing aspect in their declarations.
The final four jurors all recalled that a comment was made during deliberations on the fact defendant did not testify. Of those four jurors, three recalled that the foreperson advised them they could not use the information. Of those four jurors, one specifically stated he did not recall a comment on defendant's possible sentence, the other three jurors did not mention the sentencing comment in their discussions.
(3) In People v. Hedgecock (1990) 51 Cal.3d 395 [272 Cal. Rptr. 803, 795 P.2d 1260], the California Supreme Court held, "[W]hen a new trial motion in a criminal case is based on allegations of juror misconduct, the trial court may conduct an evidentiary hearing to determine the truth of the allegations." (Id. at p. 415.) The defendant is not entitled to such a hearing as a matter of right; the trial court has discretion to hold such a hearing. (Ibid.) An evidentiary hearing need not be conducted in every instance of alleged *723 juror misconduct. (Id. at p. 419.) "The hearing should not be used as a `fishing expedition' to search for possible misconduct, but should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred. Even upon such a showing, an evidentiary hearing will generally be unnecessary unless the parties' evidence presents a material conflict that can only be resolved at such a hearing." (Ibid.) The California Supreme Court emphasized that "a trial court must take great care not to overstep the boundaries set forth in Evidence Code section 1150." (Id. at p. 418.) Section 1150 of the Evidence Code provides:
"(a) Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined."
Here, defendant asserts the trial court abused its discretion in denying his request for a Hedgecock hearing and erred in denying his motion for new trial. Defendant contends Evidence Code section 1150 should not shield Juror Jones's statement of bias toward a nontestifying defendant. Defendant argues that the jurors' deliberate discussions of prohibited issues were misconduct that was not rebutted.
In denying the motion for a Hedgecock hearing, the trial court found it was undisputed that someone mentioned the issue of sentencing during the course of deliberations. Similarly, it found that during the course of deliberations someone mentioned the fact defendant did not testify. The trial court also found it undisputed the foreperson immediately and correctly advised the jurors that these issues were not proper subjects to consider or discuss. The trial court acknowledged not everyone heard these statements.
As stated by the trial court, there was no material conflict that the statements were made. The trial court accepted as true that the two improper topics were mentioned during deliberations and that some of the jurors heard the statements. The trial court also found the foreperson admonished the jury not to consider these matters.
The question here was not whether the jurors' affidavits were true; with the exception of an inadmissible statement in Jones's second declaration, the court accepted all statements made by the jurors as true, and no one disputed *724 them. Because the truth of the material allegations was not in question, the trial court did not abuse its discretion in denying defendant's motion for a Hedgecock hearing.
(4) "When a party seeks a new trial based upon jury misconduct, a court must undertake a three-step inquiry. The court must first determine whether the affidavits supporting the motion are admissible. (See Evid. Code, § 1150, subd. (a).) If the evidence is admissible, the court must then consider whether the facts establish misconduct. [Citation.] Finally, assuming misconduct, the court must determine whether the misconduct was prejudicial. [Citations.] A trial court has broad discretion in ruling on each of these questions and its rulings will not be disturbed absent a clear abuse of discretion. [Citation.]" (People v. Perez (1992) 4 Cal. App.4th 893, 906 [6 Cal. Rptr.2d 141].)
As a preliminary matter we must discuss the admissibility of the affidavits on the question of jury misconduct. (5a) The trial court found all the declarations were admissible with the exception of Jones's statement "in my opinion that if a man did not do what he was accused of he should say so." The trial court found this remark to be an after-the-fact statement of the juror's subjective mental processes and thus inadmissible pursuant to Evidence Code section 1150. First, we discuss whether the excluded statement of Juror Jones was admissible.
Defendant asserts Jones's entire statement should have been considered by the trial court because it demonstrated concealment of bias or prejudice. Defendant contends that "Vernon Jones made it plain that for [defendant] to receive his unbiased consideration, he had to take the stand and testify that he did not do what he was accused of doing."
(6) A defendant has a right to an unbiased and unprejudiced jury. (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 110 [95 Cal. Rptr. 516, 485 P.2d 1132].) Juror affidavits may be used to prove that one or more of the jurors concealed bias or prejudice on voir dire. (People v. Hutchinson (1969) 71 Cal.2d 342, 348 [78 Cal. Rptr. 196, 455 P.2d 132].) Affidavits can be used when the bias was revealed by false answers on voir dire. (People v. Murphy (1973) 35 Cal. App.3d 905, 931 [111 Cal. Rptr. 295].)
(5b) Defendant's argument fails. To start, the defendant has not requested that the voir dire in this case be made a part of the record. Thus, we have no way of knowing what questions were asked of Jones during jury selection or what his answers were. On the record now before us, actual concealment of bias cannot be shown.
*725 Additionally, Jones's statement was after the fact concerning his particular state of mind and is not the type of statement which is allowed to impeach a verdict. Furthermore, Jones's statement was merely his personal opinion that an innocent person should profess his innocence. This statement does not, without speculation, imply that Jones believed a nontestifying defendant is automatically guilty or tends to be guilty. There is no indication Jones's personal opinion about how one should behave influenced his decision regarding this particular defendant. "Where the alleged misconduct is entirely speculative in nature, it is settled that the denial of a constitutional right resulting in essential unfairness must be established as a demonstrable reality, not as a matter of speculation." (People v. Murphy, supra, 35 Cal. App.3d at p. 932.) The trial court properly did not consider the after-the-fact statement by Juror Jones.
(7) Next, it must be determined if the declarations, absent Juror Jones's statement of personal belief, were admissible. "[E]vidence of a jury discussion on an improper topic [is] admissible as an `overt act' provided the evidence is not directed to the subjective reasoning processes of the individual juror." (People v. Perez, supra, 4 Cal. App.4th at p. 907.) The jurors here were expressly instructed not to discuss the fact defendant did not testify and not to discuss the possible sentence. Evidence Code section 1150 expressly allows jurors to present evidence of statements made within the jury room of such a character as is likely to influence the verdicts improperly. The remaining affidavits were admissible as evidence of a jury discussion on an improper topic.
The affidavits demonstrated that two forbidden topics were brought up in jury deliberations; this constituted misconduct. (8a) The question remains whether the misconduct was prejudicial. (9) Although misconduct raises the presumption of prejudice "[t]he presumption of prejudice may be rebutted, inter alia, by a reviewing court's determination, upon examining the entire record, that there is no substantial likelihood that the complaining party suffered actual harm." (People v. Hardy (1992) 2 Cal.4th 86, 174 [5 Cal. Rptr.2d 796, 825 P.2d 781].)
In People v. Perez, supra, 4 Cal. App.4th at page 905:
"After the jury returned its verdict, [defendant] moved for funding to investigate possible jury misconduct. In support of his motion, defense counsel submitted points and authorities, stating he had questioned `one of the jury members upon their discharge. One juror either Mr. Daniel Carr or Mr. Burt Le Vine related to defense counsel that the jury based its decision *726 of guilt on the fact that the defendant did not testify during the course of the defendant's trial. One of these two jurors stated that several of the jurors mentioned this fact during their deliberations.' Neither defense counsel nor any juror submitted a declaration or affidavit stating these or similar facts."
The trial court in Perez initially found the affidavits would not be admissible and then assumed, for the sake of argument, that all 12 jurors could say that a discussion regarding defendant's failure to testify took place. After making this assumption, the trial court in Perez denied defendant's motion for mistrial based on jury misconduct. The appellate court found error.
"Here, the court was asked to exercise its discretion in ruling on Perez's new trial motion. In so doing the court accepted a worst case scenario, explicitly assuming all jurors discussed Perez's failure to testify. In effect, the court envisioned the jury had explicitly or implicitly agreed to disregard the court's express instruction not to consider or discuss Perez's failure to take the witness stand.... [E]vidence of a jury's explicit or implicit agreement to violate a court's instruction does not touch upon the juror's subjective reasoning processes, since ... such agreement in and of itself constitutes misconduct. (See DiRosario v. Havens [(1987)] 196 Cal. App.3d [1224, 1235 (242 Cal. Rptr. 423)] [`if the jurors in this case made their decision based upon an intentional collective disregard of [a jury instruction] ... then such activity would be grounds for seriously considering reversal of the judgment']; People v. Elkins (1981) 123 Cal. App.3d 632, 638 ... [finding juror affidavits inadmissible since the declarations failed to `indicat[e] ... any open discussion or agreement among the jurors evidencing a deliberate refusal to follow the court's instructions']; ...)" (People v. Perez, supra, 4 Cal. App.4th at p. 908, fns. omitted.)
The appellate court reversed, finding the trial court "denied the motion on a factual scenario presumptively establishing prejudicial jury misconduct." (Perez, supra, 4 Cal. App.4th at p. 909.) The cause was remanded for further proceedings; the opinion directed the trial court not to assume that 12 jurors actually discussed defendant's failure to testify but to require defense counsel to obtain declarations from the jurors on the subject of inquiry. (Ibid.)
The present case is distinguishable from Perez. (8b) Here, some but not all jurors heard mentioned during deliberations that defendant did not testify, and some but not all jurors heard mention of defendant's possible sentence. There is no indication in the declarations presented to the trial court here "of any open discussion or agreement among the jurors evidencing a deliberate refusal to follow the court's instructions." (People v. Elkins (1981) 123 Cal. App.3d 632, 638 [176 Cal. Rptr. 729].)
*727 When jury deliberations have been infiltrated with a matter which is prohibited, one must look at the nature of what has improperly infiltrated the procedure and the possibility of prejudice. In Johns v. City of Los Angeles (1978) 78 Cal. App.3d 983 [144 Cal. Rptr. 629], a juror said he wondered how long the lawyers shopped around to get a Black judge. (Id. at p. 991.) The appellate court found no error. The juror's comment was a "transitory or momentary expression of pique with the judge." (Id. at pp. 995-996.) No bias against the defendant was demonstrated by the comment.
A passing reference to an inappropriate matter was held not to be prejudicial in Stark v. City of Los Angeles (1985) 168 Cal. App.3d 276, 288 [214 Cal. Rptr. 216], a personal injury case involving a collision between a police pursuit vehicle and plaintiff's car. There, the affidavit of one juror showed another juror had made passing reference to her knowledge of the existence of other police codes. (Ibid.)
In Young v. Brunicardi (1986) 187 Cal. App.3d 1344, 1352 [232 Cal. Rptr. 588], jurors' comments wondering where the money would come from if the jury found in favor of plaintiff were found not to be prejudicial. By contrast, a juror who was a former police officer informed the other jurors of his understanding on a point of law, which happened to be erroneous; this extrarecord material was held to be prejudicial. (Id. at pp. 1349-1352.)
Where the misconduct is not "inherently likely" to have affected the vote of any of the jurors, prejudice is not shown. (People v. Hill (1992) 3 Cal. App.4th 16, 38 [4 Cal. Rptr.2d 258], citing People v. Marshall (1990) 50 Cal.3d 907, 950-951 [269 Cal. Rptr. 269, 790 P.2d 676].) In Hill, the appellate court determined that references in the jury room to penalty were not material to the issues presented to the jury. (People v. Hill, supra, at p. 37.)
Here, during deliberations there was a comment or comments made about defendant's not testifying and a comment regarding defendant's sentence. Although these matters were not to be discussed, the discussion was very different than when a juror performs experiments or brings in new law or facts into deliberations. The jury was obviously well aware here that defendant did not testify and equally aware that he would be punished if the jury found him to be guilty. Thus the comments did not interject any new material into deliberations that was not already known by the jury from the trial itself. Transitory comments of wonderment and curiosity, although *728 misconduct, are normally innocuous, particularly when a comment stands alone without any further discussion. The fact that only some of the jurors recalled the comments tends to indicate that this was not a discussion of any length or significance.
When comments go beyond natural curiosity and their content suggests inferences from forbidden areas, the chance of prejudice increases. For example, if a juror were to say, "The defendant didn't testify so he is guilty," or "we will have to find the defendant guilty of the greatest charges to ensure he will be adequately punished," the comments go beyond mere curiosity and lean more toward a juror's drawing inappropriate inferences from areas which are off limits. Such comments are more likely to influence that juror and other jurors.
In Burgos's initial declaration, he recited a juror's oblique remark about a party not saying anything to protect himself. Although this comment may have carried a greater potential for prejudice than a mere statement of curiosity, in light of the record before us it does not require reversal. It does not appear that there was a lengthy discussion about the two inappropriate areas or that there was a movement to disobey the court's instructions. The comments did not involve extra record material but were regarding matters already obvious to the jurors. More importantly, the foreperson admonished his fellow jurors and reminded them they could not consider defendant's not testifying during deliberations.
In Krouse v. Graham (1977) 19 Cal.3d 59 [137 Cal. Rptr. 863, 562 P.2d 1022], Justice Mosk, in a concurring and dissenting opinion, expressed his concerns with this area:
"I foresee the likelihood of all unsuccessful litigants, plaintiffs and defendants alike, canvassing jurors hereafter as a matter of policy, in the fond hope of discovering some forbidden element that may have inadvertently crept into jury discussions. Motions thereafter made on the basis of such discovery will seriously impede the expeditious administration of justice." (Id. at p. 85 (conc. and dis. opn. of Mosk, J.).)
Here, forbidden elements inadvertently crept into jury discussions. However, there is no substantial likelihood that defendant suffered actual harm.

*729 DISPOSITION
The judgment is affirmed.
Martin, Acting P.J., and Harris, J., concurred.
A petition for a rehearing was denied May 24, 1993, and appellant's petition for review by the Supreme Court was denied August 11, 1993.
NOTES
[*]   Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts II through V.
[1]  Further code references are to the Penal Code unless otherwise noted.
[2]  On cross-examination, Dr. Adams testified only 20 to 30 percent of molested children display physical injuries.
[3]  We further note Williamson has not been applied to situations in which the charges involved separate criminal acts. Williamson arises when one act could be charged under one of two applicable statutes.
[*]   See footnote, ante, page 711.


283 F.2d 310
EDWIN RAPHAEL COMPANY, Inc., Plaintiff-Appellant,v.MAHARAM FABRICS CORPORATION, Defendant-Appellee.
No. 13041.
United States Court of Appeals Seventh Circuit.
Nov. 1, 1960.

Curtis F.Prangley, Mark H. Clayton, Chicago, Ill., for appellant.
Milton K. Joseph, Chicago, Ill., Byron G. Toben, Chicago, Ill., of Counsel, for appellee.
Before HASTINGS, Chief Judge, and DUFFY and MAJOR, Circuit Judges.
DUFFY, Circuit Judge.

1
In this suit, based upon diversity of citizenship, plaintiff sought to enjoin defendant from unfairly competing with plaintiff by selling certain drapery material which plaintiff claims contained plaintiff's unique, original and distinctive patterns.  Plaintiff also sought damages.

2
Defendant, Maharam Fabrice Corporation, is a New York Corporation.  Joseph Maharam of New York is the president and Samuel D. Maharam of New York is vice president.  The plaintiff is an Illinois corporation.  Also involved in this suit is another Illinois corporation.  Its corporate name is Maharam Fabrice Corporation of Illinois.  Joseph Maharam of New York is also the president of this corporation, and Samuel D. Maharam of New York is the secretary.  In conducting its business, this corporation customarily does not use the words 'of Illinois', the last two words of its corporate name.  The result if that the name usually used by the Illinois corporation is identical with the corporate name of the New York corporation.  The Illinois corporation will hereinafter be referred to as Maharam (Illinois).

3
Two summonses were issued, the first on June 15, 1959 and the second on July 23, 1959.  Service of the first summons was made on June 17, 1959, by delivery of a copy to Miss Jean Wieck at 420 North Orleans Street, Chicago.  At this address were located the principal offices of Maharam (Illinois) corporation.  Pursuant to an order of the Court, the second summons was served in New York on July 30, 1959, by leaving a copy with Mr. Sam Gorman who was an officer of the New York corporation.  Defendant did not appear within twenty days of the service of the first summons, and on July 29, 1959, on motion of the plaintiff, without notice, the District Court declared the defendant to be in default and on said date a judgment by default was entered.

4
Defendant filed a motion to quash service of summons which had been issued on July 23, 1959, and to dismiss the action for improper venue.  Defendant also moved to vacate the order of default entered July 29, 1959, and to quash the service of summons issued July 15, 1959.  An affidavit of attorney Shulman was filed to show that as defendant's attorney, he failed to answer or plead within twenty days after the service of the first summons, under circumstances that amounted to excusable neglect.

5
The trial court found the default arose due to a misunderstanding to counsel, and was the result of excusable neglect and should be set aside under Rule 60(b), Federal Rules of Civil Procedure, 28 U.S.C.A.  An order was entered vacating the order of default, and quashing the service of summonses issued on June 15, 1959 and July 23, 1959, respectively.  The instant appeal is from that order.

6
Defendant argues the order appealed from is not an appealable order.  However, it is well established that an order granting a motion to quash service is appealable.  Wisconsin Mutual Insurance Co. v. Western Mutual Fire Insurance Company, 7 Cir., 107 F.2d 402; Rosenberg Bros. & Company v. Curtis Brown Co., 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372.

7
It is true, an order vacating a default judgment is interlocutory in character.  However, it may be reviewed in a appeal from a final judgment in the same case, since it is merged in the final judgment.  Hamilton-Brown Shoe Co. v. Wolf Brothers & Co., 240 U.S. 251, 36 S.Ct. 269, 60 L.Ed. 629.  We do not regard the point as of controlling importance in the instant case as it is clear from the record that the finding of the court of excusable neglect if based upon substantial evidence, and under no circumstances could such finding be said to be clearly erroneous.

8
On the merits, the principal contention of plaintiff is that Maharam (Illinois) was the agent for defendant, and therefore the latter was thus doing business in Illinois.  Plaintiff argues that service upon an agent is good service on a foreign corporation, and that in the instant case, the service upon Miss Wieck who was an employee of Maharam (Illinois) was, in law, good service upon the defendant.

9
Plaintiff points out that stockholders of the defendant corporation owned 50% Of the stock of Maharam (Illinois) and that the same person was the president of each; also, that the stockholders and directors of each corporation met in New York in 1958 and 1959.  Plaintiff says that Maharam (Illinois), by omitting the last two words of its corporate name, does, in fact, operate under the name of the defendant; and that defendant prepared a sample book to be used by Maharam (Illinois) which had the address of the Illinois corporation imprinted upon the cover.  Plaintiff argues this is a case where corporate entities should be disregarded, and that Maharam (Illinois) be held to be a mere instrumentality or adjunct of the defendant.

10
We think the District Court was correct in finding the separate corporate entities of defendant and Maharam (Illinois) were genuine.  The New York stockholders own 100% Of the stock of the defendant corporation, and 50% Of the stock of Maharam (Illinois).  The other 50% Of the Illinois corporation is owned by Hyman and Irwin Wiener who reside in Illinois.  The Wieners have no interest in the defendant corporation.  Three of the directors of Maharam (Illinois) represent the New York interest, and the other three the Illinois interests.

11
Other factors are, Maharam (Illinois) purchases less than 1% Of its merchandise from the defendant, and the defendant had no customers in Illinois other than Maharam (Illinois).  There is substantial evidence in the record to find that defendant is a buying agent for Maharam (Illinois) but that relationship would not be sufficient to make defendant amenable to process in Illinois.

12
Defendant was never licensed to do business in Illinois and never had a registered office or registered agent in the state.  All orders for merchandise from Maharam (Illinois) to defendant were either by written order mailed to the defendant in New York and there accepted, or by telephone calls initiated in Illinois and completed in New York.  Defendant, as buying agent for Maharam (Illinois), made a service charge for its service.  All the business of defendant with Maharam (Illinois) amounted to about 6% Of the total volume of the defendant's business.

13
We conclude defendant did not do business in Illinois either through Maharam (Illinois) or otherwise.  We hold that under Illinois law, defendant did not have those minimal contacts which are essential to the transaction of any business within the state of Illinois.  Trippe Manufacturing Company v. Spencer Gifts, Inc., 7 Cir., 270 F.2d 821, 823.

14
Affirmed.


280 S.W.3d 796 (2009)
STATE of Missouri, Plaintiff/Respondent,
v.
Michael J. MUGLER, Defendant/Appellant.
No. ED 91482.
Missouri Court of Appeals, Eastern District, Division Three.
April 21, 2009.
Irene Karns, Columbia, MO, for appellant.
Chris Koster, Dora A. Fichter, Jefferson City, MO, for respondent.
Before ROBERT G. DOWD, JR., P.J., CLIFFORD H. AHRENS, J., and SHERRI B. SULLIVAN, J.

ORDER
PER CURIAM.
Michael Mugler (Defendant) appeals the circuit court's judgment upon his conviction after a bench trial on one count of forgery in violation of 566.034 RSMo 2000. Defendant asserts that the court abused its discretion by denying his request for a Frye hearing and permitting law enforcement officers to conduct and opine on a handwriting comparison.
We have reviewed the briefs and the record on appeal, and we conclude that the trial court did not err. No precedential or jurisprudential purpose would be served by an opinion. A memorandum has been provided to the parties for their use only, setting forth the reasons for this order. We affirm pursuant to Rule 30.25(b).


553 F.3d 1093 (2009)
Theodis NELMS, Jr., Plaintiff-Appellant,
v.
Michael J. ASTRUE, Defendant-Appellee.
No. 08-1774.
United States Court of Appeals, Seventh Circuit.
Argued October 16, 2008.
Decided January 28, 2009.
*1094 Nastassia G. Johnson, Attorney (argued), Law Offices of Barry A. Schultz, P.C., Evanston, IL, for Plaintiff-Appellant.
Cristine Bautista, Attorney (argued), Social Security Administration, Office of the General Counsel, Region V, Chicago, IL, for Defendant-Appellee.
Before RIPPLE, EVANS, and TINDER, Circuit Judges.
TINDER, Circuit Judge.
Theodis Nelms, Jr., sought Social Security disability benefits, but an administrative law judge determined that he can perform light work. On appeal Nelms, who was without counsel before the ALJ, contends that the ALJ did not adequately develop the record in violation of his duty to unrepresented claimants. Additionally, Nelms argues that the ALJ ignored certain environmental restrictions when assessing Nelms's residual functional capacity. *1095 We agree with Nelms that the record is inadequate and therefore remand for further proceedings before the agency.

Background
Nelms applied for Supplemental Security Income benefits in June 2002. He listed as impairments pneumonia, recovery from open-heart surgery, and asthma. In his application Nelms wrote, "If I walk, lift or do anything too strenuous I get out of breath." After the Social Security Administration twice denied his application, Nelms requested a hearing.

A. Hearing
Nelms appeared at his hearing in June 2005 without counsel. After a few questions about Nelms's work history, the ALJ addressed the possibility of representation, explaining that "I don't give somebody credit just because they have an attorney"; still, the ALJ continued, the Social Security Administration believes "that having an attorney is a good idea." The ALJ explained the role of an attorney but also noted the ALJ's independent duty to create a record:
I think the thinking must be that an attorney can talk to you, keep you company at the hearing, ask additional questions when I'm done, look over your file, see if it looks reasonably complete and so on. It looks pretty complete. You've brought in additional information here and so on. We do much of that anyway.
After the ALJ described the costs typically associated with an attorney in the Social Security setting, Nelms replied, "I'd rather talk to you."
Proceeding with the hearing, the ALJ asked Nelms to rank his medical problems. Nelms stated that his heart was the worst, followed by his back, his legs, and his asthma, in that order. Regarding his heart Nelms explained, "I have shortness of the breath and, you know, that also happen[s] with asthma and plus they cut me open. I got a stent in my heart, you know." Nelms described an inability to sleep at night because of severe pain, which he believes to be the onset of arthritis. Nelms also reported that his doctor had prescribed Methadone to alleviate the pain in his back and in his legs, although the medication was "not helping that much." Nelms testified, moreover, that he experiences soreness in his lower back "[a]ll day every day," with a brief respite only immediately after taking the medication. As for his respiratory problems, Nelms mentioned that his asthma strikes when he is near dust or pollen outside and when he is hot or cold. Nevertheless, Nelms exercises and walks every day per his doctor's instructions, albeit with limitations. "I can walk probably about a good two blocks before I really get messed up," Nelms testified, "but here lately, you know, since I've been hurting, you know, I can't walk half a block." Furthermore, Nelms stated that since surgery he has done "little odd jobs," including raking leaves and shoveling snow. Nelms described his daily activities in detailhow each morning he cooks himself breakfast, cleans up, goes for a walk, does laundry, and, later, perhaps goes to the grocery store with his step-mother before cooking himself dinner. Although Nelms "used to party a lot," he testified that his drinking is down to two or three beers each day and he is generally home by 9:00 p.m.
After approximately twenty minutes of questioning, the ALJ remarked, "I can't think of anything else to ask. Anything else I should know?" Nelms clarified a few points about his education and work history, and with that the hearing ended.

B. Medical Evidence
In May 2002 Nelms was admitted to a hospital in Milwaukee, Wisconsin, after he *1096 was found unresponsive in his home. He was diagnosed with pneumonia, respiratory failure, overheating (hyperthermia), inflammation of the heart (endocarditis), delirium likely caused by alcohol withdrawal (delirium tremens), an abnormally low concentration of sodium in the blood (hyponatremia), and low blood pressure (hypotension). During his hospital stay, Nelms's doctors replaced his mitral valve (a heart valve) with a mechanical substitute, and the surgery was a success. Nelms was discharged from the hospital in June 2002.
Over the next four months Nelms attended cardiopulmonary rehabilitation sessions, where he would walk on a treadmill, lift weights, and ride a stationary bicycle. The parties agree that "Mr. Nelms generally tolerated the exercises well."
In December 2002 Dr. Patricia Chan, a non-examining state-agency physician, assessed Nelms's residual functional capacity. Dr. Chan opined that Nelms could perform the lifting, sitting, and standing exertions associated with light work.
Nelms was hospitalized again in March 2003this time for intra-abdominal bleeding, over-anticoagulation, and kidney failure (renal insufficiency) resulting from a mixture of alcohol and prescription anticoagulants. He was discharged one week later with instructions to abstain from alcohol and "not to double dose."
Five months later Dr. Robert Callear, another non-examining state-agency physician, assessed Nelms's residual functional capacity. Like Dr. Chan, Dr. Callear concluded that Nelms could perform the duties associated with light work. Dr. Callear did note, however, that Nelms should avoid concentrated exposure to fumes, odors, dust, gases, and poor ventilation.
From 2002 to 2003 Nelms met with a number of other doctors, often to seek pain relief or for check-ups related to his surgery. Of those visits, two appear to be significant. In April 2003 Dr. Ijaz Malik reported that Nelms was not yet ready to return to work following several episodes of internal bleeding. And in May 2003 Dr. Marcin Turecki prescribed a stronger prescription pain medication when Tylenol proved insufficient to treat Nelms's back pain.
The record is silent on Nelms's condition from mid-2003 to 2005 (his hearing date) with one exceptiona four-line report from Nelms's primary-care physician, Dr. Pablo Bozovich, dated April 2005. Dr. Bozovich wrote that Nelms's condition is "stable" with respect to his mitralvalve replacement. Furthermore, Dr. Bozovich noted, Nelms suffers from mild spinal stenosis and chronic back pain, but his pain is "controlled w/ oral medication," and his asthma is stable as well.

C. ALJ Decision
The ALJ began his written decision by acknowledging that Nelms had not engaged in substantial gainful activity since his alleged onset date. Still, the ALJ noted that Nelms's heart surgery went "beautifully well," that his rehabilitation indicated a smooth recovery, and that his complaints of debilitating pain were sporadic. According to the ALJ, the medical record documented steady improvement since Nelms's hospitalization in 2002:
[The record] paints a picture of a bad medical episode in the Spring of 2002, which lasted much less than a year. It also paints a picture of recovered capacity for work even with the continued substance abuse and paints a picture of a situation well within the scope of the light capacity vocational rules. It also shows strong causal contributions of substance abuse to the claimant's reduced condition but not anything like a disabling condition even with the substance abuse. More than that, the record *1097 shows that, were the claimant not to drink and not to smoke, to follow a better diet, and to use his medicines as prescribed, his capacity might even approach full medium exertional levels.
The ALJ compared the favorable reports of Drs. Chan and Callear with the lesser capacity alleged by Nelms but discounted Nelms's testimony because "he is not very credible." Nelms's testimony regarding his symptoms was unconvincing and inconsistent, the ALJ wrote. According to the ALJ, Nelms's resistance to medical advice and his continued drinkinghowever reducedalso undermined his claim.
Ultimately the ALJ agreed with Nelms that his heart condition, his asthma, his alcohol abuse, and his back pain are severe impairmentsbut these impairments do not, according to the ALJ, meet or otherwise equal a listed impairment. Next the ALJ found that Nelms cannot perform any of his past relevant work, which was "medium or greater in exertional demands and had other demands." But, the ALJ continued, Nelms retains the residual functional capacity "for a full range or nearly full range of light jobs and for some medium jobs at the exertionally lower end of the medium range."
The ALJ concluded that Nelms's asthma does not prevent him from light work because it is "slight" and not a "significant environmental impairment." Nelms listed his asthma as the least significant of his impairments. And it is not a new problem, according to the ALJ, nor did it prevent Nelms from working in the past. The ALJ did, however, acknowledge that heat and some outdoor conditions can aggravate Nelms's condition. "[E]ven if the claimant should avoid outdoor work on warm, humid days or avoid work in hot work places," the ALJ wrote, "nevertheless the sedentary and light categories of work contain great numbers of jobs and many occupational opportunities still open to the claimant." Thus, the ALJ found that Nelms is not disabled on account of his ability to perform light work found in the national economy.
The Appeals Council denied Nelms's subsequent request for review. The district court affirmed the decision of the Commissioner.

Analysis
If the Appeals Council denies a request for review, as it did here, the ALJ's decision becomes the final decision of the Commissioner of Social Security. Getch v. Astrue, 539 F.3d 473, 480 (7th Cir.2008). This court will reverse an ALJ's denial of disability benefits only if the decision is not supported by substantial evidence or is based on an error of law. 42 U.S.C. § 405(g); Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir.2007); Rice v. Barnhart, 384 F.3d 363, 368-69 (7th Cir.2004). Substantial evidence includes "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (citation and quotation marks omitted); see Getch, 539 F.3d at 480.
Nelms first asserts that the ALJ did not adequately develop the recordan obligation that was heightened by Nelms's decision to proceed without counsel. In particular Nelms takes issue with the absence, save for Dr. Bozovich's note, of any medical records from mid-2003 to 2005a period in which, Nelms argues, some of his impairments worsened. Medical documents from that period, Nelms contends, attest to severe degenerative changes in Nelms's back and hips and "strongly support" a finding of disability. Nelms also points to the length of the hearing25 minutesas further proof that the ALJ did not fully and fairly develop the record in this case.
*1098 While a claimant bears the burden of proving disability, the ALJ in a Social Security hearing has a duty to develop a full and fair record. See Smith v. Apfel, 231 F.3d 433, 437 (7th Cir.2000); Thompson v. Sullivan, 933 F.2d 581, 585 (7th Cir.1991). This duty is enhanced when a claimant appears without counsel; then the ALJ must "`scrupulously and conscientiously [] probe into, inquire of, and explore for all the relevant facts.'" Thompson, 933 F.2d at 585-86 (quoting Smith v. Sec. of Health, Educ. & Welfare, 587 F.2d 857, 860 (7th Cir.1978)); see Nelson v. Apfel, 131 F.3d 1228, 1235 (7th Cir.1997). Although pro se litigants must furnish some medical evidence to support their claim, see Johnson v. Barnhart, 449 F.3d 804, 808 (7th Cir.2006), the ALJ is required to supplement the record, as necessary, by asking detailed questions, ordering additional examinations, and contacting treating physicians and medical sources to request additional records and information. 20 C.F.R. §§ 416.912(d)-(f), 416.919, 416.927(c)(3); see Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir.2003) (holding 700-page record inadequate because it lacked detail about certain impairments); Thompson, 933 F.2d at 587.
This court generally upholds the reasoned judgment of the Commissioner on how much evidence to gather, even when the claimant lacks representation. See Luna v. Shalala, 22 F.3d 687, 692 (7th Cir.1994); Binion v. Shalala, 13 F.3d 243, 246 (7th Cir.1994). Accordingly, "a significant omission is usually required before this court will find that the [Commissioner] failed to assist pro se claimants in developing the record fully and fairly." Luna, 22 F.3d at 692. And an omission is significant only if it is prejudicial. See Nelson, 131 F.3d at 1235. "Mere conjecture or speculation that additional evidence might have been obtained in the case is insufficient to warrant a remand." Binion, 13 F.3d at 246. Instead a claimant must set forth specific, relevant factssuch as medical evidencethat the ALJ did not consider. Nelson, 131 F.3d at 1235; see Binion, 13 F.3d at 245 ("Prejudice may be demonstrated by showing that the ALJ failed to elicit all of the relevant information from the claimant."); Echevarria v. Sec'y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir.1982) (significant gaps in the record may preclude a fair and adequate hearing).
Nelms argues that the two-year evidentiary gap is a significant omission, and we agree. Nelms filed, in this court, a separate appendix of medical records from 2003, 2004, and 2005 for the limited purpose of demonstrating prejudice. That appendix contains various examination reports and diagnoses from the same Wisconsin hospital where Nelms had his surgery. The documents, moreover, support Nelms's theory that the ALJ likely would have found Nelms disabled had he considered them[1]or even if he had simply asked more questions about recent developments. See Binion, 13 F.3d at 246. For example, a CT scan in January 2004 revealed, for the first time, degeneration of Nelms's thoracic and lumbar spine with a "diffuse disk bulge" and "posterior spurring." Although subsequent notes convey that Nelms "has good control [of his back pain] with Ultran 50 mg once daily as needed" and "this pain is getting better," *1099 Nelms later reported that "[i]t is worse when [he] sits and gets better when he stands up." And by February 2005, Nelms's back pain was acute, "especially when he stands up. He feels weak, especially when he has to do that.... This is due to disc disease." Moreover, Nelms began to experience a limited range of motion in his hips sometime in 2004, which turned out to be from "[s]evere degenerative changes of both hips." An examination revealed "severe joint space narrowing, along with spurring of the femoral head" in Nelms's left hip, as well as "marked joint space narrowing, along with femoral spurring" in Nelms's right hip.
These are precisely the sort of specific, relevant facts that an ALJ is expected to consider when determining disability in a pro se claimant. See Binion, 13 F.3d at 246. No doubt a "complete" record is always elusive, see Johnson, 449 F.3d at 808; Luna, 22 F.3d at 692; Kendrick v. Shalala, 998 F.2d 455, 456-57 (7th Cir. 1993), and there is no absolute requirement that an ALJ update the medical records to the time of the hearing, see Luna, 22 F.3d at 692-93. But here the ALJ was aware that Nelms was still receiving treatment in 2005 and that his back pain was severe and continuing. His leg pain persisted as well. Yet the ALJ did not probe, in any depth, Nelms's recent past at the hearing or gather any medical evidence to fill the two-year gap in the record. Had the ALJ done so, he would have uncovered documentation of orthopedic decline. This is particularly troubling in light of the ALJ's assurances that he would independently assemble a "reasonably complete" record. Unlike in previous cases, this was not a "marginal hearing" that nevertheless provided "a fairly complete picture" of Nelms's impairments. See Nelson, 131 F.3d at 1236. Nor was it a situation in which an unrepresented claimant reassured the ALJ that no additional medical records exist. See Johnson, 449 F.3d at 808. Thus, we cannot say that the ALJ adequately developed the record.
There is a secondary matter that also deserves comment. Nelms also argues that the ALJ did not consider the combined effects of Nelms's impairments when determining disability. He asserts in his brief, "it was illogical for the ALJ to on one hand find Plaintiff's asthma was a severe impairment, but on the other hand, include no symptoms or limitations related to asthma in Plaintiff's RFC." Nelms insists further that "the ALJ included no environmental restrictions in[] Plaintiff's residual functional capacity assessment." But the ALJ's opinion devotes considerable attention to Nelms's respiratory limitationsand concludes that "even if the claimant should avoid outdoor work on warm, humid days or avoid work in hot work places, nevertheless the sedentary and light categories of work contain great numbers of jobs and many occupational opportunities still open to the claimant." To this Nelms offers essentially two responses: first, that the ALJ should have explicitly addressed his need to avoid concentrated exposure to dust, pollen, fumes, odors, and gases, and second, that the ALJ could not assume that such jobs exist without the assistance of a vocational expert.
Nelms's arguments on this point are unpersuasive. The ALJ pressed Nelms on his environmental restrictions at length and Nelms himself emphasized that his asthma manifests when he is exposed to dust and pollen outside. When it does, Nelms overheats, and his solution is to go inside. The ALJ's discussion of restrictions on outside work in warm environments speaks directly to these respiratory limitations, and it is clear from the record that the ALJ considered Nelms's environmental restrictions in tandem with his other impairments. See Getch, 539 F.3d at 481 (ALJ does not have to provide complete *1100 written evaluation of every piece of testimony and evidence).
Nelms cites Warmoth v. Bowen, 798 F.2d 1109 (7th Cir.1986), in support of his argument that a vocational expert was needed. In Warmoth this court rejected an ALJ's conclusory determination that most sedentary jobs do not expose workers to any environmental irritants. Id. at 1110. After an accident in which an industrial machine spilled toxic chemicals on his face, Warmoth was unable to tolerate even the slightest amount of second-hand smoke or perfume. Id. at 1110-11. Notably, though, this court did not require that the ALJ consult a vocational expert on remand: "we only require that there be reliable evidence of some kind that would persuade a reasonable person that the limitations in question do not significantly diminish the employment opportunities otherwise available." Id. at 1112; see also 20 C.F.R. § 416.966(e); Binion, 13 F.3d at 246 (explaining that use of a vocational expert is discretionary).
This case is not so severe. In essence the ALJ assumed that some light work exists in the national economy that does not present a threat of concentrated exposure to dust, pollen, fumes, gases, odors, or poor ventilation. Of course, a vocational expert would be uniquely qualified to answer this questionand the ALJ may wish to enlist one on remandbut the ALJ's assumption alone is not so outlandish as to warrant reversal. See Luna, 22 F.3d at 691 ("this court has said that in cases where a nonexertional limitation might substantially reduce a range of work an individual can perform, the ALJ must consult a vocational expert.") (emphasis added); Social Security Ruling 85-15, 1985 WL 56857, at *8 (Nov. 30, 1984) ("Where a person has a medical restriction to avoid excessive amounts of noise, dust, etc., the impact on the broad world of work would be minimal because most job environments do not involve great noise, amounts of dust, etc.") (emphasis added).
So, although the ALJ's treatment of the combined effects of Nelm's impairments does not justify reversal, his failure to develop the record as discussed above does. Therefore, because substantial evidence does not support the ALJ's decision, we REVERSE the judgment of the district court and REMAND for further proceedings before the agency.
RIPPLE, Circuit Judge, concurring.
I am pleased to join the judgment and the comprehensive opinion of the court. I write separately simply to underline the inherent unfairness in the ALJ's having assured Mr. Nelms that the judge had an independent responsibility to develop the record and then leaving such a wide gap in the development of the relevant medical history.
Although the cold record is difficult to assess on this matter, I am concerned here that the ALJ's colloquy with Mr. Nelms may well have had the unintentional effect of dissuading him from retaining counsel. An ALJ must be very circumspect, and even-handed, in his advice to a litigant and, here, Mr. Nelms may well have interpreted the ALJ's advice as expressing the ALJ's personal view that no attorney was needed.
NOTES
[1]  The government accuses Nelms of "selectively omitt[ing]" some medical evidence from 2003 to 2005 that suggests that his back pain was manageable (with medication). But that charge is baseless, and it misses the point. Nelms does not purport to enter new evidence into the record at this stage; rather, he furnishes just enough evidence to establish that the ALJ did not fulfill his duty to create a fair and full recordone that will include both favorable and unfavorable information once complete.


920 N.E.2d 1082 (2009)
234 Ill.2d 554
VETERANS MESSENGER SERVICE, INC.
v.
JORDAN.
No. 109066.
Supreme Court of Illinois.
November 1, 2009.
Disposition of Petition for Leave to Appeal[*] Denied.
NOTES
[*]  For Cumulative Leave to Appeal Tables see preliminary pages of advance sheets and Annual Illinois Cumulative Leave to Appeal Table.


J-S07020-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT A. BITTINGER                        :
                                               :
                       Appellant               :     No. 1741 MDA 2018

            Appeal from the PCRA Order Entered September 18, 2018
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-MD-0000520-1985

BEFORE:      OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY McLAUGHLIN, J.:                      FILED: MAY 22, 2019

        Robert A. Bittinger appeals from the order dismissing his petition filed

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A §§ 9541-9546. We

affirm.

        In 1985, Bittinger pled guilty to first-degree murder and criminal

conspiracy1 in connection with the contract killing of his co-worker’s wife. After

we remanded the case for resentencing, the court sentenced Bittinger to serve

a sentence of life imprisonment followed by a consecutive term of five to ten

years’ imprisonment. We affirmed this judgment of sentence in 1986.

____________________________________________

*    Retired Senior Judge assigned to the Superior Court.

1   See 18 Pa.C.S.A. §§ 2502(a) and 903, respectively.
J-S07020-19

       The following year, Bittinger filed a petition for relief under the

predecessor to the PCRA, the Post Conviction Hearing Act.2 After appointing

counsel and holding a hearing, the PCHA court denied relief. On appeal, this

Court affirmed.

       In 1995, Bittinger filed a pro se “request for certain court records,”

which the court treated as a serial PCRA petition. See PCRA Court Order, filed

1/24/95, at 1. The court dismissed the petition without a hearing. In 1997,

Bittinger filed another PCRA petition that the court dismissed. Bittinger did not

appeal from the dismissal of his 1995 or 1997 petitions.

       In 2016, Bittinger filed another PCRA petition, which the court dismissed

as untimely. We affirmed the dismissal in September 2017.

       On August 29, 2018, Bittinger filed the pro se PCRA Petition which gives

rise to the instant appeal. In the Petition, Bittinger launched several attacks

on the validity of his judgment of sentence that we need not repeat here.

Relevant to our disposition, Bittinger asserted the Petition was timely under

the   “governmental       interference”        exception   to   the   PCRA’s   timeliness

limitations. See 42 Pa.C.S.A. § 9545(b)(1)(i). Bittinger argued that his 1995

petition was timely and that the PCRA court judge who dismissed that petition

was biased and had a conflict of interest. Specifically, Bittinger asserted that

____________________________________________

2 See Commonwealth v. Brimage, 580 A.2d 877, 878 n.1 (Pa.Super. 1990)
(“Effective April 13, 1988, the Pennsylvania Legislature repealed in part and
substantially modified in part the Post Conviction Hearing Act, renaming it the
Post Conviction Relief Act”).

                                           -2-
J-S07020-19

the Honorable Richard A. Lewis, who was the PCRA court judge that dismissed

his 1995 PCRA petition, had been the District Attorney of Dauphin County and

had prosecuted Bittinger in this case in 1985. Bittinger alleged that as District

Attorney, President Judge Lewis had had a “distinct significant personal

involvement in critical adversary decisions regarding the prosecution.” Supp.

to PCRA Pet., 8/29/18, at ¶ 20. Bittinger requested that the PCRA court re-

open the 1995 petition or allow Bittinger to re-submit it.

       The PCRA court issued an order explaining that the Petition was

untimely, notifying Bittinger of its intention to dismiss the Petition, and

allowing Bittinger 20 days to respond to the notice. See Pa.R.Crim.P. 907.

Bittinger responded, reasserting that President Judge Lewis had had a conflict

of interest when adjudicating his 1995 petition. Bittinger added that President

Judge Lewis had also adjudicated his 1997 and 2016 petitions, and argued

that he “objects” to President Judge Lewis’s failure to recuse himself from

deciding the instant petition. Bittinger’s Response to Rule 907 Notice, 9/14/18,

at 1. The PCRA court denied the Petition as untimely, and Bittinger appealed.3

____________________________________________

3 Although the court dismissed the Petition on September 18, 2018, and
Bittinger’s notice of appeal was not docketed as received by the trial court
until October 19, 2018, 31 days later, we decline to quash the appeal as
untimely. The certified record does not reflect the date Bittinger mailed the
notice of appeal from prison, but we may presume Bittinger delivered it to
prison authorities on or before October 18, 2018, within the appeal period.
See Pa.R.A.P. 121(a); Commonwealth v. Patterson, 931 A.2d 710, 714
(Pa.Super. 2007).

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J-S07020-19

       Bittinger argues we should consider his Petition timely under the

governmental interference exception because “[President] Judge Lewis[’s]

failure to recuse demonstrates a constitutional violation against [Bittinger’s]

due process rights.” Bittinger’s Br. at iii. We need not reach the question of

whether recusal was warranted, whether that issue is waived,4 or the merits

of the underlying attacks on Bittinger’s judgement of sentence because the

Petition is untimely.

       “The PCRA’s time limitations implicate our jurisdiction and may not be

altered or disregarded in order to address the underlying merits of a claim.”

Commonwealth v. Greco, --- A.3d ----, 2019 PA Super 30 (Feb. 8, 2019).

When a petitioner files a PCRA petition more than one year after his or her

judgment of sentence has become final, the petitioner must plead and prove

that one of three enumerated exceptions applies. 42 Pa.C.S.A. § 9545(b)(1)(i-

iii). The first of these, known as the “governmental interference exception,”

allows for the filing of a petition when “the failure to raise the claim previously

was the result of interference by government officials . . . in violation of the

Constitution or laws of this Commonwealth or the Constitution or laws of the

United States[.]” Id. at (b)(1)(i). The petitioner must file the petition within

____________________________________________

4See Commonwealth v. Luketic, 162 A.3d 1149, 1158-59 (Pa.Super. 2017)
(stating a request for recusal must be timely and specific).

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J-S07020-19

one year of the date he or she could have first presented the claim. Id. at

(b)(2).5

       Here, Bittinger’s judgment of sentence became final in 1986. See id. at

(b)(3). Bittinger argues that his 2018 Petition is timely because President

Judge Lewis presided over his PCRA petitions in 1995, 1997, and 2016, and

the instant Petition. However, Bittinger does not explain how President Judge

Lewis interfered with his ability to file a timely PCRA petition challenging his

judgment of sentence. His claim therefore falls short of a colorable allegation

of governmental interference. Id. at (b)(1)(i). Moreover, Bittinger fails to

assert that he filed the instant Petition within one year of discovering that

President Judge Lewis interfered with the timely presentation of his claims.

Id. at (b)(2). Even assuming his 1995, 1997, and 2016 petitions were timely

and improperly dismissed, Bittinger does not deny he was aware at the time

of those dismissals that President Judge Lewis presided over his case.

       As Bittinger has failed to plead and prove how the governmental

interference exception applies to his Petition, or allege that his Petition was

filed within one year of his discovery of any governmental interference, we

hold that the Petition was untimely filed. The PCRA court was therefore without

____________________________________________

5 This section of the PCRA was amended effective December 24, 2018, to apply
to claims arising on or after December 24, 2017. The amendment applies to
Bittinger’s instant Petition, filed in August 2018.

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J-S07020-19

jurisdiction to entertain the Petition, and we affirm the order of the court

dismissing it.

      Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/22/2018

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