962 A.2d 679 (2008)
S.T., Petitioner
v.
DEPARTMENT OF PUBLIC WELFARE, Respondent.
No. 91 C.D. 2008.
Commonwealth Court of Pennsylvania.
Submitted on Briefs August 15, 2008.
Decided September 24, 2008.
Publication Ordered December 4, 2008.
*680 William J. Faust, II, Philadelphia, for petitioner.
Michael Angelotti, Philadelphia, for intervenor, Philadelphia Department of Human Services.
BEFORE: PELLEGRINI, Judge, and LEAVITT, Judge, and McCLOSKEY, Senior Judge.
OPINION BY Senior Judge McCLOSKEY.
S.T. (Petitioner) petitions for review of an order of the Department of Public Welfare, Bureau of Hearings and Appeals (Bureau) sustaining the decision of the Department of Public Welfare (Department) denying expungement of Petitioner's name from the ChildLine Registry.[1] We affirm.
The Philadelphia Department of Human Services, Children and Youth Division (C & Y) received a report of suspected child abuse as to S.P. S.P. was seven years old at the time the alleged abuse occurred. Following an investigation, C & Y determined that the report was indicated. C & Y found that Petitioner, the mother of S.P., was a perpetrator of child abuse.
Petitioner requested administrative review of the report. Following review, the Department sustained that finding that an indicated report of child abuse had been established. Petitioner then appealed to the Bureau seeking expungement on the basis that substantial evidence was not presented to support the findings. The Bureau held a hearing on this matter.
A hearing was held before an Administrative Law Judge (ALJ). At the hearing, C & Y sought to have S.P.'s oral statements admitted into evidence as S.P. was unavailable as a witness. S.P. had died as the result of injuries sustained in an automobile *681 accident. The ALJ determined that all the statements made by S.P. constituted inadmissible hearsay.
In support of its claim of abuse, C & Y then introduced four pictures of S.P. taken at his school. Karen Montgomery, a social worker, testified that she photographed S.P. on May 18, 2006, and that the photographs represent a fair and accurate representation of his condition at that time.
Ms. Montgomery stated that she also spoke to Petitioner. Petitioner informed her that S.P. was physically disciplined approximately once a month. He was either spanked by hand or with a belt. Petitioner claimed that her boyfriend, A.S., was usually in charge of the discipline.
Petitioner further informed her that on May 17, 2006, S.P. did not behave in school. As such, S.P. was disciplined with a belt by A.S. A.S. hit the child a number of times with the belt. Petitioner became angry that S.P. was screaming and crying. She then hit S.P. with the belt and returned the belt to A.S. so he could continue hitting S.P.
Petitioner presented the testimony of A.S.[2] He testified that S.P. had discipline problems in school, so he and Petitioner decided S.P. should be disciplined. S.P. was told to go to his room and remove his clothing, except for his underwear. A.S. then began hitting S.P. with the belt. He stated that Petitioner entered the room and hit S.P. twice with the belt. He was not sure how many times S.P. was hit.
Petitioner also testified. She stated that S.P. received a "bad note" in school. (R.R. at 35). She told S.P. that he had to be disciplined. Then, she and A.S. discussed the matter and agreed that A.S. would physically discipline the child. Petitioner claimed that A.S. took off his belt and went to the child's room. She went into the kitchen. She heard A.S. hitting the child and heard the child crying. She went to S.P.'s room and asked why he was crying. Petitioner stated that she "got beatings" when she was a child and she was not permitted to cry during the beatings. (R.R. at 36). Petitioner explained that if she cried during a beating, she was hit additional times. So in response the child's cries, she hit him twice with the belt. She then returned the belt to A.S. and "told him not too much more." (R.R. at 40).
Petitioner stated that following day she sent S.P. to school. She then received a telephone call from the school informing her that her son was in protective custody and C & Y would be coming to her home for an interview.
At the conclusion of the hearing, the ALJ determined that A.S. and Petitioner agreed to physically discipline S.P. As a result of that discipline, the ALJ further determined that S.P. suffered extensive bruising. Based on the photographic evidence, the ALJ made the following findings of fact:
14. From several inches above his belly button and extending to his genitals, red bruising covered the subject child's skin. (N.T. July 12, 2007; DHS-4).
15. On his backside, red bruising covered the subject child's body from the middle of his torso to his buttocks. (N.T. July 12, 2007; DHS-4).
16. Red bruising also covered almost the entire right side of the subject child's right thigh from hip to knee. (N.T. July 12, 2007; DHS-4).
17. Several spots on the subject child's groin and above his right knee contained *682 dried blood showing where the skin was broken. (N.T. July 12, 2007; DHS-4).
(R.R. 51).
The ALJ further found as follows:
In the instant case, the pictures of the subject child's injuries are powerful evidence that the subject child suffered a serious physical injury. They show bruises over much of the child's body. The picture of the extensive bruising from the child's abdomen to his groin is especially graphic. As such, the pictures depict the result of a savage beating that was far removed from any acceptable corporal punishment. In, sum the only conclusion one can draw from these photographs is that the subject child suffered serious pain and therefore a serious physical injury.
(R.R. at 52).
The ALJ further found that Petitioner fully participated in the beating. The ALJ noted that Petitioner testified that she agreed that A.S. should hit the child with the belt. As the beating progressed, she heard the child crying. She then entered the child's bedroom and hit him with the belt, because she believed it was not appropriate to cry while being disciplined. She then returned the belt to A.S. and told him to continue hitting the child.
Based on his findings, the ALJ recommended that Petitioner's request for expungement be denied. The Bureau agreed, adopting the recommendations of the ALJ in its entirety.
Petitioner now appeals to this Court.[3] Petitioner alleges that the Bureau erred in finding that C & Y presented substantial evidence that S.P. suffered severe pain. Petitioner also argues that the evidence did not establish that she was a perpetrator of child abuse.
The county agency has the burden of proof in an expungement case and the critical issue to be determined is whether or not the indicated report is accurate. A.O. v. Department of Public Welfare, 838 A.2d 35 (Pa.Cmwlth.2003). The county agency must establish by substantial evidence that the indicated report is accurate. Bucks County Children and Youth Social Services Agency v. Department of Public Welfare, 808 A.2d 990 (Pa. Cmwlth.2002).
An "indicated report" is defined as:
A child abuse report made pursuant to this chapter if an investigation by the county agency or the Department of Public Welfare determines that substantial evidence of the alleged abuse exists based on any of the following:
(1) Available medical evidence.
(2) The child protective service investigation.
(3) An admission of the acts of abuse by the perpetrator.
Section 6303(a) of the Child Protective Services Law (the Law), 23 Pa.C.S. § 6303(a).
Section 6303(b)(i) of the Law defines child abuse as "[a]ny recent act or failure to act by a perpetrator which causes nonaccidental serious physical injury to a child under 18 years of age." 23 Pa. C.S § 6303(b)(i), Serious physical injury is defined as "[a]n injury that: (1) causes a child severe pain; or (2) significantly impairs a child's functioning, either temporarily *683 or permanently." 23 Pa.C.S. § 6303(a).
Petitioner claims that the photographic evidence of her son's injuries does not constitute substantial evidence that he suffered severe pain. We disagree. A finding that a child has suffered severe pain does not need to be supported by witness testimony or medical evidence. D.N. v. Department of Public Welfare, 127 Pa.Cmwlth. 580, 562 A.2d 433 (1989). In fact, this Court has concluded that photographs alone of a child's injuries may support a finding that the injuries caused the child severe pain. City of Philadelphia, Office of Children, Youth and Family Services v. Department of Public Welfare, 767 A.2d 10 (Pa.Cmwlth.2001).
"In determining whether substantial evidence exists to support a finding of fact this Court is to give to the party in whose favor the appealed decision was rendered ... the benefit of all inferences that can logically and reasonably be drawn from the evidence." B.J.K. v. Department of Public Welfare, 773 A.2d 1271, 1276 (Pa.Cmwlth.2001). The photographs depict a child with bruises over much of his body. We agree with the ALJ that the extensive bruising from the child's abdomen to his groin is especially graphic. We also agree that the photograph of the child's right leg depicts cuts and dried blood. Following review of the photographs in evidence, one can reasonably infer that the injuries caused severed pain. As such, we hold that the Bureau's determination was supported by substantial evidence of record.
Petitioner also alleges that she does not meet the definition of a "perpetrator" of child abuse in that her acts or her failure to act did not cause serious injury to her child. Petitioner alleges that she had no reason to know that A.S. would spank the child to such an extent, that she only hit the child twice with the belt and that "the obvious inference to be draw from the evidence is that [she] entered the room where her son was being spanked upon hearing his cries, because she sought to diplomatically end the discipline meted out by her fiancé, by taking the belt away from her fiancé, and by suggesting that the fiancé mete out `not too much more' punishment, which ended the spanking." (Appellant's Brief at ii).
The Pennsylvania Supreme Court has determined that the standard to be used when evaluating a perpetrator's actions in administering corporal punishment is whether or not her actions equals that of criminal negligence. P.R. v. Department of Public Welfare, Office of Hearings and Appeals, 569 Pa. 123, 801 A.2d 478 (2002). Criminal negligence is defined as follows:
A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.
18 Pa.C.S. § 302(b)(4).
Petitioner, by her own testimony, decided to abdicate her parental responsibilities regarding discipline to her boyfriend. She then also chose not to be present in the room where she knew her son was being hit with a belt. Upon hearing her son cry, she entered his room. Once in the room, Petitioner did not suggest that she made any attempt to determine whether the punishment her son was receiving was appropriate. She did not *684 raise any questions as to the force being used to hit the child or the location of the blows on his body. Instead, Petitioner's only concern upon entering the room was to further punish S.P. for violating her "no crying while taking a beating" rule. After hitting S.P. herself, she chose to return the belt to her boyfriend so he could continue the punishment. She then left the room, again choosing not to monitor the situation.
As such, Petitioner's acts and omissions equal a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.[4] Therefore, we cannot say that the Bureau erred in concluding that Petitioner was a "perpetrator" of abuse.
Accordingly, the order of the Bureau is affirmed.

ORDER
AND NOW, this 24th day of September, 2008, the order of the Department of Public Welfare, Bureau of Hearings and Appeals is affirmed.
NOTES
[1]  ChildLine is a unit of the Department that operates a statewide toll-free system for receiving and maintaining reports of suspected child abuse, along with making referrals for investigation. 55 Pa.Code § 3490.4.
[2]  At the time of the hearing, Petitioner and A.S. were married.
[3]  Our scope of review is limited to determining whether legal error has been committed, whether constitutional rights have been violated, or whether the necessary findings of fact are supported by substantial evidence. K.J. v. Department of Public Welfare, 767 A.2d 609 (Pa.Cmwlth.), petition for allowance of appeal denied, 567 Pa. 750, 788 A.2d 381 (2001).
[4]  We note that A.S. was only legally authorized to physically punish S.P. based on the authority given to him by Petitioner. See 18 Pa.C.S. § 509(1). If Petitioner is going to provide a non-parent with the authority to physically discipline her child, she cannot purposefully choose to ignore how the discipline is being conducted and then claim ignorance of the situation. Corporal punishment is only permitted where it is "not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain, or mental distress or degradation." 18 Pa.C.S. § 509(1)(ii). As the parent of the child, Petitioner was responsible for determining whether the punishment given to her son was permissible.


736 N.E.2d 1257 (2000)
James E. KINCAID, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 79A04-0004-CR-142.
Court of Appeals of Indiana.
October 20, 2000.
*1258 Michael B. Troemel, Lafayette, Indiana, Attorney for Appellant.
Karen Freeman-Wilson, Attorney General of Indiana, Kostas A. Poulakidas, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION
HOFFMAN, Senior Judge
Appellant-Defendant James E. Kincaid (Defendant) appeals from the trial court's order revoking his probation from his conviction of burglary, a Class B felony.
Defendant pled guilty to burglary, a Class B felony, on September 16, 1988. The trial court sentenced him to a term of ten years for the conviction, but then suspended the sentence and ordered Defendant be placed on supervised probation. One of the terms of Defendant's probation was a prohibition against the use of illegal drugs.
Defendant was arrested for attempted burglary in Ohio on July 8, 1989. Defendant pled guilty to that offense and was sentenced to four and a half years executed on February 23, 1990. Defendant's probation in the instant case was suspended because of the Ohio conviction. On July 11, 1994, Defendant was paroled on the Ohio conviction, and his Indiana probation was reinstated and extended for ten years. On July 7, 1997, while on parole in Ohio, and on probation in Indiana, Defendant tested positive for cocaine use. The Ohio trial court revoked Defendant's parole for testing positive for illegal drugs and ordered him to serve two years for the violation.
On April 7, 1998, the State filed an amended petition to revoke Defendant's probation alleging that Defendant tested positive for cocaine while on probation. After Defendant was released from prison in Ohio, he was transported to Indiana on the petition filed here.
*1259 On October 18, 1999, and December 27, 1999, a probation revocation hearing was held wherein Defendant admitted to cocaine use. The trial court revoked Defendant's probation and ordered him to serve six years in the Department of Correction followed by four years of supervised probation.
Defendant contends that the trial court abused its discretion by ordering Defendant to serve six years executed for the probation violation in the instant case. The petition to revoke Defendant's probation alleged that he had used cocaine. Defendant alleges that because the Ohio parole violation resulted from the same instance of illegal use of cocaine, the trial court could not further punish Defendant for that conduct in Indiana. Defendant argues that the trial court violated Defendant's rights under Ind. Const. article I, § 14.[1]
The authority to fix a sentence within statutorily prescribed parameters is a discretionary power vested in the trial court. Hurst v. State, 717 N.E.2d 883, 886 (Ind.Ct.App.1999). This sentencing authority includes the statutory discretion to suspend and to order probation and establish its terms. Id. Probation is a matter of grace and a conditional liberty that is a favor, not a right. Id. Ultimately, the decision whether to grant probation and to determine the conditions of probation are matters within the sound discretion of the trial court. Id.
The court determines the conditions of probation and may revoke probation if the conditions are violated. Goonen v. State, 705 N.E.2d 209, 211 (Ind.Ct.App. 1999). A revocation hearing is in the nature of a civil proceeding, so the alleged violation need be proven only by a preponderance of the evidence. Id.
We have held previously that a violation of a condition of probation does not constitute an offense within the purview of double jeopardy analysis. See Shumate v. State, 718 N.E.2d 1133, 1134 (Ind.Ct.App.1999). Double jeopardy protection applies only to criminal proceedings, and probation revocation proceedings are not criminal proceedings because violations must be proven only by a preponderance of the evidence. Id. at 1134-35. Moreover, revocation proceedings are based upon violations of probation conditions rather than upon the commission of a crime, and the finding of whether a defendant has complied with these conditions is a question of fact and not an adjudication of guilt. See id. at 1135. Therefore, Defendant's argument that the probation revocation in Indiana violated Ind. Const. art. I, § 14 because Defendant served two years executed in Ohio for the same conduct is of no avail here.
Further, Defendant seems to make the argument that the trial court's decision to order that Defendant serve six years executed in the Department of Correction was excessive in light of the fact that Defendant served two years in Ohio for a parole violation based on the same conduct. One of the options available to a trial court when revoking a person's probation is to order the execution of the sentence that was suspended at the time of the initial sentencing. See Ind.Code § 35-38-2-3(g)(3). In the present case, a ten-year sentence was suspended and later extended. Since the trial court's order that Defendant serve time executed was authorized by statute, the trial court's order was not excessive.
Affirmed.
MATTINGLY, J., and KIRSCH, J., concur.
NOTES
[1]  Because Defendant does not assert a violation of his Fifth Amendment protection against double jeopardy we limit our discussion to the allegation of a violation of the Indiana Constitution.


51 So.3d 1159 (2010)
DIEUDONNE
v.
STATE.
No. 2D10-200.
District Court of Appeal of Florida, Second District.
December 29, 2010.

DECISION WITHOUT PUBLISHED OPINION
Affirmed.


692 F.2d 150
223 U.S.App.D.C. 426
Data Use and Access Laboratoriesv.U. S. Dept. of Commerce
82-1003
UNITED STATES COURT OF APPEALS District of Columbia Circuit
10/6/82

1
D.C.D.C.

2
AFFIRMED*

*
 The judgment or order is accompanied by a Memorandum explanatory of the judgment.  Such memorandum is not included with the opinions of the Court that are printed, and it may not be cited in briefs or memoranda of counsel as precedents, under local rule


903 F.Supp. 293 (1995)
Mark GRAY, Plaintiff,
v.
Shirley S. CHATER, Commissioner of Social Security,[1] Defendant.
No. 94 Civ. 0082 (TJM) (RWS).
United States District Court, N.D. New York.
October 6, 1995.
*294 *295 Peter W. Hill, Oneonta, New York, for Plaintiff.
Thomas J. Maroney, United States Attorney, William H. Pease, Assistant United States Attorney, Office of the United States Attorney for the Northern District of New York, Syracuse, New York, for Defendant.
KOELTL, District Judge:[2]
The plaintiff Mark Gray ("Gray") filed this action on January 24, 1994 pursuant to Section 205(g) of the Social Security Act ("Act"), 42 U.S.C. § 405(g), and Section 1631(c)(3) of the Act, 42 U.S.C. § 1383(c)(3), to review a final determination by the Commissioner of Social Security ("Commissioner") denying him a period of disability, Social Security Disability Insurance ("SSDI") benefits and Supplemental Security Income ("SSI") benefits. On August 18, 1994, the plaintiff submitted his brief, and on September 29, 1994, the Commissioner submitted her brief; pursuant to the Standing Order of the Northern District of New York, the briefs are construed as cross-motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).
The issue in this case is whether substantial evidence supports the finding by the Commissioner that the plaintiff is not entitled to a period of disability, SSDI benefits or SSI benefits.

I.
The plaintiff, who was born on November 29, 1966, (R. at 38), claims that since May 1992, he has suffered from problems with his knees that render him disabled. (R. at 112.) Gray's left knee has a "tendency to sublux out of place." (R. at 43.) When his knee subluxes, or gives out, it causes Gray "stabbing" *296 pain. (R. at 45-46.) At the time of the hearing before the Administrative Law Judge ("ALJ") on May 21, 1993, Gray's knee problems had necessitated seven surgeries, (R. at 43), had resulted in numerous emergency visits to the hospital, (R. at 8, 148, 207, 230, 237, 240), and had continued to cause Gray constant pain. (R. at 45.) The ALJ who conducted the hearing concluded that Gray has a "severe musculoskeletal impairment." (R. at 20.) In detailing Gray's "long history of disorders of his left knee," the ALJ noted that Gray had undergone, among other surgeries, a partial meniscectomy to the left knee in 1982, a transarthroscopic synovectomy in 1983, a left tibia tubricle elevation with left iliac graft in 1988, and exploration of the left patellar tendon with reefing of the patellar tendon mechanism in September 1992. (Id.) The ALJ also observed that Gray has chronic instability of the left patella with patellofemoral arthritis and a disruption of the left quadriceps patellar mechanism, that Gray has been diagnosed as having patellofemoral chondromalacia of the right knee, and that an MRI revealed inflammation of the patellar tendon at the distal aspect of the patella. (Id.)
After completing high school, Gray served in the Navy until he was discharged because of his knee problems. (R. at 39-40.) Following his discharge, Gray was employed continuously at various jobs from 1984 until May 1992. (R. at 103.) Most recently, Gray owned a pet store. (R. at 40.) Prior to that, he had been, among other things, a retail manager in various stores and a laborer. (R. at 41, 104-07.) As with his prior jobs, Gray was forced to stop working at the pet store because of problems with his knees. (R. at 42, 110.)
Gray filed an application for SSDI benefits on June 17, 1992. (R. at 112-19.) Gray's application was denied both initially, (R. at 66-69), and upon reconsideration. (R. at 80-83.) Gray also filed an application for SSI benefits on May 14, 1992, (R. at 84-88), which also was denied initially, (R. at 90-93), and upon reconsideration. (R. at 95-98). Gray then requested a hearing, which was held on May 21, 1993. (R. at 33-50.) At the hearing the ALJ found that Gray was not disabled and, therefore, that he was not entitled to a period of disability or to SSDI benefits under Sections 216(i) and 223 of the Act, 42 U.S.C. §§ 416(i), 423, and that he was not eligible for SSI benefits under Sections 1602 and 1614(a)(3)(A) of the Act, 42 U.S.C. §§ 1381a, 1382c(a)(3)(A). (R. at 25.) When the Appeals Council denied Gray's request for review on November 23, 1993, (R. at 11-12), the ALJ's decision became the final decision of the Commissioner.[3] Gray now appeals to this Court from this decision.

II.
Gray contends that the Commissioner's decision that he is not disabled because he has the Residual Functional Capacity ("RFC")[4] to perform a full range of sedentary work activity is not supported by substantial evidence. He argues that: (1) his impairment, as described by a physician examining him for purposes of determining his entitlement to Workers' Compensation benefits, renders him unable to perform a full range of sedentary work according to the Commissioner's own definition of sedentary work; (2) the Commissioner did not properly consider the effect of pain on his RFC; (3) the Commissioner improperly considered his attempts to find work as an indication that he could perform a full range of sedentary work; and (4) the testimony of a vocational expert was necessary for the Commissioner to sustain her burden of proof.

A.
The standards governing entitlement to disability benefits and supplemental security *297 income benefits are well settled. A claimant seeking social security benefits is considered disabled if the claimant is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
The analytical framework for evaluating claims of disability is defined by regulations of the Commissioner, which set forth a five-step inquiry. See 20 C.F.R. §§ 404.1520, 416.920. As the Court of Appeals has explained:
The first step in the sequential process is a decision whether the claimant is engaged in `substantial gainful activity.' If so, benefits are denied. If not, the second step is a decision whether the claimant's medical condition or impairment is `severe.' If not, benefits are denied. If the impairment is `severe,' the third step is a decision whether the claimant's impairments meet or equal the `Listing of Impairments' set forth in subpart P, app. 1, of the social security regulations. These are impairments acknowledged by the [Commissioner] to be of sufficient severity to preclude gainful employment. If a claimant's condition meets or equals the `listed' impairments, he or she is conclusively presumed to be disabled and entitled to benefits. If the claimant's impairments do not satisfy the `Listing of Impairments,' the fourth step is assessment of the individual's `residual functional capacity,' i.e., his capacity to engage in basic work activities, and a decision whether the claimant's residual functional capacity permits him to engage in his prior work. If the residual functional capacity is consistent with prior employment, benefits are denied. If not, the fifth and final step is a decision whether a claimant, in light of his residual functional capacity, age, education, and work experience, has the capacity to perform `alternative occupations available in the national economy.'
Dixon v. Heckler, 785 F.2d 1102, 1103 (2d Cir.1986) (citations omitted), vacated on other grounds sub nom. Bowen v. Dixon, 482 U.S. 922, 107 S.Ct. 3203, 96 L.Ed.2d 690 (1987); see also Diaz v. Shalala, 59 F.3d 307, 312 n. 2 (2d Cir.1995); Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir.1995).
The initial burden is on the claimant to prove that he is disabled within the meaning of the Act. 42 U.S.C. § 423(d)(5); see also Reyes v. Secretary of Health and Human Servs., 807 F.Supp. 293, 298 (S.D.N.Y. 1992) (Motley, J.). This burden encompasses the first four steps described above. Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir.1983). Once the claimant carries the burden of proving disability by showing that his impairment prevents his return to his prior employment, he has established a prima facie case and the burden shifts to the Commissioner to prove the fifth step  that there exists alternative substantial gainful employment in the national economy that the claimant can perform considering not only his physical capacity but also his age, education, experience, and training. Id. 717 F.2d at 722-23; see also Reyes, 807 F.Supp. at 298; Crean v. Sullivan, No. 91 Civ. 7038, 1992 WL 183421, at *4 (S.D.N.Y. July 22, 1992) (Leisure, J.).
In determining whether a claimant is disabled, the Commissioner must consider: (1) objective medical facts and clinical findings; (2) diagnoses and medical opinions of examining physicians; (3) the claimant's subjective evidence of pain and physical incapacity as testified to by himself and others who observed him; and (4) the claimant's age, educational background, and work history. Carroll v. Secretary of Health and Human Servs., 705 F.2d 638, 642 (2d Cir.1983). Moreover, the opinion of a treating physician is entitled to considerable weight and is, in the absence of contradictory evidence, binding on the Commissioner. Id.
In meeting her burden of proof on the fifth step of the sequential evaluation process described above, the Commissioner, under appropriate circumstances, may rely on the medical-vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, commonly *298 referred to as "the Grid".[5] The Grid takes into account the claimant's RFC in conjunction with the claimant's age, education and work experience. Based on these factors, the Grid indicates whether the claimant can engage in any other substantial gainful work which exists in the national economy. Generally the result listed in the Grid is dispositive on the issue of disability. Crean, 1992 WL 183421, at *4.
Exclusive reliance on the Grid, however, is inappropriate where the medical-vocational guidelines fail to accurately describe a claimant's particular limitations. See 20 C.F.R. Part 404, Subpart P, App. 2, § 200.00(e); Crean, 1992 WL 183421, at *4. Where there are discrepancies between the claimant's profile and the Grid factors, all relevant facts are to be considered in light of the vocational considerations outlined in 20 C.F.R. §§ 404.1560-404.1569a; see Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir.1986). For example, sole reliance on the Grid may be precluded where the claimant's exertional impairments are compounded by significant nonexertional impairments that limit the range of sedentary work that the claimant can perform. See 20 C.F.R. Part 404, Subpart P, App. 2, §§ 200.00(e)(2), 201.00(h); see also Bapp, 802 F.2d at 605; Crean, 1992 WL 183421, at *4-*5.[6] This is also the case where there is not substantial evidence that a claimant can perform a full exertional range of work. See Nelson v. Bowen, 882 F.2d 45, 49 (2d Cir.1989) (individual assessment required where there is insufficient proof that a claimant can perform a full range sedentary work).

B.
In the present case, the ALJ performed the five-step evaluation process in determining that Gray is not entitled to benefits. He concluded that since May 1992, Gray had not been engaged in substantial gainful activity because of his knee problems and that he had a severe impairment that did not meet or equal the level of severity of a listed impairment. (R. at 20-21.) He then determined, based both on Gray's testimony and the medical evidence, that Gray could not perform his past relevant work. (R. at 21.) Finally, based on the doctors' reports, the medical evidence, Gray's testimony about his symptoms and limitations, and the fact that Gray had applied for sedentary jobs and intended to go to college, the ALJ determined that Gray retained an RFC that enabled him to perform a full range of sedentary work. (R. at 22-24.) Consulting the Grid, the ALJ concluded that Gray was not disabled. (R. at 24.)

C.
A court may set aside a determination by the Commissioner only if it is based on legal error or is not supported by substantial evidence in the record. 42 U.S.C. §§ 405(g), 1383(c)(3); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982); Dousewicz v. Harris, 646 F.2d 771, 773 (2d Cir.1981). Substantial evidence is "more than a mere scintilla"; it is "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, 1427, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)); Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir.1995); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir.1991).
Here, Gray sustained his burden of proving that his impairment prevents him *299 from performing his past relevant work. Both the record and the ALJ's decision support this conclusion. Therefore, the burden shifted to the Commissioner to prove, with specific reference to the medical evidence, that Gray can perform alternative substantial gainful employment that exists in the national economy. See, e.g., White v. Secretary of Health and Servs., 910 F.2d 64, 65 (2d Cir. 1990).

III.
Gray complains about three aspects of the ALJ's determination that he retains the RFC to perform a full range of sedentary work. First, Gray argues that the very evidence upon which the ALJ relied demonstrates that he cannot perform a full range of sedentary work under the Commissioner's definition of sedentary work. Second, he argues that the ALJ failed to consider properly the effect of pain on his RFC. Third, he argues that the ALJ improperly considered his testimony that he had applied for sedentary jobs and that he intends to go to college. In addition, Gray argues that because he cannot perform the full range of sedentary work, the ALJ was required to introduce the testimony of a vocational expert. The plaintiff's first three arguments are particularized aspects of his contention that the Commissioner's decision that he possesses an RFC that enables him to perform a full range of sedentary work is not supported by substantial evidence. A careful review of the evidence demonstrates that the plaintiff is correct, and therefore the Commissioner's decision should be reversed and remanded for the calculation of benefits.
In concluding that Gray retained the RFC to perform a full range of sedentary work activity, the ALJ relied heavily on the fact that Dr. Jones, who examined the claimant on two occasions in connection with determining whether Gray was eligible for Workers' Compensation benefits, found that while Gray is unable to stand for prolonged periods, he can perform sedentary work. (R. at 22.)[7]
In the regulations, the Commissioner defines sedentary work as follows:
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.
20 C.F.R. § 404.1567(a). In Social Security Ruling 83-10, the Commissioner explained that "occasionally" means "occurring from very little up to 1/3 of the time" and that, therefore, in a sedentary job, standing or walking generally should not total more than two hours of an eight-hour work day, and sitting generally should total approximately six hours of an eight-hour work day. West Soc.Sec.Rep.Serv., SSR 83-10, at 29. Moreover, the Commissioner has explained that sedentary work requires a worker to be in a certain place or posture for at least a certain length of time to accomplish a certain task and that unskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand at will. Carroll, 705 F.2d at 643; see also Nelson, 882 F.2d at 48-49.
In a report dated July 22, 1992, Dr. Jones concluded that Gray had a "marked partial degree of causally related disability" and that the "only type of work [Gray] could do at this time would be sedentary which would not involve any standing of more than five or ten minutes." (R. at 178.) Dr. Jones further concluded: "[Gray] would not be able to climb any stairs to get work or climb any ladders at work. In addition, he would be unable to bend since his left knee prevents *300 him from doing this properly." (Id.) After reexamining Gray in February 1993, Dr. Jones concluded that Gray "continues to have a marked, partial disability" and that Gray "can only do sedentary work." (R. at 201.) Dr. Jones found Gray's prognosis for recovery to be poor. (Id.)
The ALJ relied explicitly on Dr. Jones conclusion that Gray could perform sedentary work, but he did not consider how Gray's inability to stand for more than five or ten minutes, which was documented in Dr. Jones' report, would impact Gray's RFC. While the Commissioner argues that Dr. Jones's report "apparent[ly]" means that Gray could only stand for five or ten minutes at a time and not five or ten minutes per day, and that such an interpretation is consistent with Dr. Jones's opinion that Gray could perform sedentary work, (Def.'s Brief at 17), this argument is unavailing. While the Commissioner argues that each period of standing or walking in a sedentary job would be "quite brief in duration," so that the plaintiff, even with his restrictions, could perform sedentary work, (id.), there is no evidence that the plaintiff could stand for two hours a day, as might be required in a sedentary job. See Nelson, 882 F.2d at 48-49 (reversing the Secretary's determination that the claimant was not disabled because he could perform at least sedentary work where the Secretary had not shown that the claimant engaged in activity for sustained periods of time comparable to those required to maintain a sedentary job); see also Ferraris v. Heckler, 728 F.2d 582, 585-86 (2d Cir.1984); Koseck v. Secretary of Health and Human Servs., 865 F.Supp. 1000, 1013 (W.D.N.Y.1994) ("To sustain her burden, the Secretary must proffer specific medical evidence that the plaintiff can meet the exertional demands necessary to maintain sedentary work.") (citing Nelson, 882 F.2d at 48); Martin v. Shalala, No. 91-CV-0730E, 1994 WL 263818, at *4 (W.D.N.Y. June 13, 1994) (same); Irvine v. Sullivan, No. CV-91-500, 1992 WL 245581, at *4 (E.D.N.Y. Aug. 11, 1992) ("The RFC assessment focuses on the type of work activity a claimant can perform `on a regular and continuing basis,' and must measure physical activities such as walking, standing, lifting, carrying, pushing, pulling, reaching and handling.... The Secretary bears the burden of demonstrating that a plaintiff is able to perform `substantially all of these activities.'" (citing 20 C.F.R. §§ 416.945(b), 404.1567(c))); Morris v. Bowen, No. 88 Civ. 0591, 1989 WL 270108, at *6 (S.D.N.Y. Jan. 12, 1989) (Wood, J.) ("The ALJ must ... outline with specificity the crucial factors in a determination that claimant is capable of sedentary work. The Secretary bears the burden of showing that the claimant is capable of sedentary work.") (citations omitted); Camasto v. Bowen, No. 88 Civ. 1119, 1989 WL 25251, at *3 (S.D.N.Y. Mar. 17, 1989) (Sweet, J.) (remanding where there was an "absence of evidence" indicating that the claimant could sit long enough to perform sedentary work).
Moreover, perhaps because of a notable lack of relevant medical evidence on the plaintiff's ability to sit and stand for particular amounts of time, the ALJ resorted to distinguishing away the evidence provided by the plaintiff's treating physicians. These reports, rather than providing substantial evidence that the plaintiff can perform sedentary work, only provide, at best, a lack of definitive evidence that the plaintiff cannot perform sedentary work.
For example, the letter dated June 3, 1993 from Dr. Elting, one of Gray's treating physicians, to Gray's attorney states that Gray has a "profound disability." (R. at 236.) The ALJ treated this conclusion as "binding," but concluded that it did not show that Dr. Elting found Gray to be incapable of performing sedentary work. (R. at 23.) This is not evidence, however, that Gray can perform sedentary work.
Similarly, the Commissioner notes that while Dr. Elting opined several times between June 1992 and February 1993 that Gray was totally disabled for purposes of entitlement to Workers' Compensation, when he saw the plaintiff on March 10, 1993, he assessed only a partial disability. (Def.'s Brief at 15-16.) Noting that there is no concept of partial disability under the Act, see, e.g., Stephens v. Heckler, 766 F.2d 284, 285 (7th Cir.1985), the Commissioner argues that Elting's revised diagnosis is "not inconsistent *301 with the [Commissioner]'s determination that plaintiff was not disabled." (Def.'s Brief at 16.) While this finding may not be inconsistent with the ALJ's determination, it also is not evidence of the plaintiff's ability to perform sedentary work.[8]
Similarly, the ALJ noted that the fact that two of the plaintiff's treating physicians, Dr. Boman and Dr. Elting, had found Gray unable to perform his past work did "not necessarily preclud[e] the performance of all forms of competitive employment." (R. at 22-23.) The ALJ explained: "In other words, these reports do not demonstrate that the claimant's treating physicians found him disabled from performing sedentary work activity." (R. at 23.) But this evidence does not affirmatively support the Commissioner's burden of showing that the plaintiff can perform sedentary work.
As explicitly stated in the regulations, RFC is a medical assessment; therefore, the ALJ is precluded from making his assessment without some expert medical testimony or other medical evidence to support his decision. See 20 C.F.R. § 404.1513(c), (d)(3). In Martin v. Shalala, No. 91-CV-0730E, 1994 WL 263818 (W.D.N.Y. June 13, 1994), where the court determined that the Secretary's decision that the plaintiff could perform a full range of unskilled sedentary work was not supported by substantial evidence, the court noted:
[T]he ALJ stated `nowhere in the medical evidence is there any indication that the claimant would be unable to meet the exertional demands of sedentary work.' One does not, of course, sustain a burden of proof by pointing to an absence of proof supporting an adversary's position. But more importantly, this statement highlights the ALJ's failure to introduce specific medical evidence that the plaintiff could hold a sedentary job.
Id. 1994 WL 263818, at *4 (citation omitted).
Lacking appropriate medical evidence upon which to base his determination with respect to the plaintiff's RFC, the ALJ relied on the plaintiff's intention to attend college and his application for sedentary jobs in concluding that the plaintiff could perform sedentary work. Indeed, the record contains evidence that Gray desires to obtain a sedentary job but that he believes he cannot get such a job because he lacks the appropriate training. (R. at 44, 126.)
In Nelson v. Bowen, 882 F.2d 45 (2d Cir. 1989), the Court of Appeals criticized the ALJ for placing "considerable emphasis" on the plaintiff's ability to go to college in determining that he was not disabled. Id., 882 F.2d at 48. The court explained: "When a disabled person gamely chooses to endure pain in order to pursue important goals, it would be a shame to hold this endurance against him in determining benefits unless his conduct truly showed that he is capable of working." Id., 882 F.2d at 49. The Commissioner relies on cases where the claimant actually went to school, demonstrating an ability to perform a particular kind of work. See, e.g., Sorenson v. Weinberger, 514 F.2d 1112, 1118 (9th Cir.1975) (plaintiff was regularly attending school at the university level and working six or seven hours a day in classes, studying at other times, and driving to school); Hofacker v. Weinberger, 382 F.Supp. 572, 576 (S.D.N.Y.1974) (Carter, J.) (plaintiff's attendance at classes for six hours a day supported the Secretary's finding that the plaintiff was not disabled). Here, however, Gray's expressed intention to go to school certainly has not demonstrated that he actually is capable of performing sedentary work. And, while the ALJ noted, without citing to the record, that Dr. Elting supported Gray's educational plans, "further demonstrating that Dr. Elting does not find the claimant to be totally disabled[,]" the only evidence of this is an office note by Dr. Elting dated June 15, 1992 that states:
Mark continues to have a great deal of difficulty. Both his patellae are unstable. *302 He cannot maintain his Pet Store. He is attempting a return to college. We will see him on an as needed basis.
(R. at 156.) This does not demonstrate, in any way, that the plaintiff can perform a full range of sedentary work.[9] There is also a note in the record from Dr. Boman, on a report dated November 24, 1992, that concluded that Gray was totally disabled for purposes of Workers' Compensation, that states: "[Gray] is interested in pursuing college and I support this 100%." (R. at 214.) Again, this cannot suffice to demonstrate that Gray can perform a full range of sedentary work. Similarly, the plaintiff's applying for sedentary work does not demonstrate an actual ability to perform such work. Cf. Ross v. Schweiker, 566 F.Supp. 292, 295 (E.D.Pa.1983) (plaintiff's willingness to work and belief that he could work corroborated the physicians' opinions that obtaining employment would promote the plaintiff's emotional and mental well-being).
The ALJ also considered the plaintiff's testimony about his symptoms. At the hearing, the plaintiff testified that he can sit for about fifteen minutes before he has to move his leg or get up and walk around because of pain in his back. (R. at 44.) During the hearing, which lasted less than twenty minutes, the plaintiff stood up and sat back down again to try to "snap" his knee. (Pl.'s Brief at 10; R. at 47.) He testified that he has constant pain, sometimes consisting of a "dull ache" and other times consisting of a "jabbing, stabbing pain...." (R. at 45.) He testified that he experiences the latter kind of pain when he stands "a little too long" and then he has to "sit right down." (R. at 45-46.) He further testified that he had stopped hunting, fishing, bowling, and hiking and that he has a hard time playing with his daughter, who was four years old at the time of the hearing, because of his knee problems. (R. at 46.) There also was evidence in the record that Gray tries to do the dishes but that "usually" he has to stop and sit "quite often" because of pain in his knees. (R. at 109.) The ALJ explicitly found that the plaintiff's description of his symptoms was credible. (R. at 23.)
The plaintiff complains that the ALJ did not adequately consider the effect of pain on his RFC. While it is incumbent upon the ALJ to evaluate the effect of pain on the claimant's ability to function, see 20 C.F.R. §§ 404.1529, 416.929; see also Martin, 1994 WL 263818, at *5, here, the ALJ considered the pain to which the plaintiff testified; indeed, the ALJ's decision explicitly considered the plaintiff's description of his symptoms in accordance with the regulations and credited it. However, the ALJ found that the plaintiff's pain did not affect his ability to perform a full range of sedentary work.
There is, however, no substantial evidence that supports that conclusion. The Commissioner argues that the finding that the plaintiff could perform sedentary work is supported by "the statements of both Dr. Elting and Dr. Jones...." (Def.'s Brief at 18.) Yet, as discussed above, these statements do not demonstrate that the plaintiff can perform sedentary work. The Commissioner also argues that the fact that the plaintiff had continued to look for sedentary work, had applied for specific jobs, and had planned to attend college demonstrates that the plaintiff believed he could meet the exertional demands of such work. (Id. at 18-19.) Again, as discussed above, all of this evidence, including the reports by the plaintiff's doctors, are insufficient to support a finding that the plaintiff was capable of performing sedentary work.
While the ALJ found that the "evidence as a whole" establishes that Gray can perform sedentary work, (R. at 23), a careful review of the record demonstrates that this is not the case. Because the ALJ's decision itself demonstrates that the record does not contain substantial evidence to support the conclusion that Gray can perform sedentary work, and because the Court's independent review of the record confirms such a lack of evidence, the Commissioner's denial of benefits *303 should be reversed and the case remanded for the calculation of benefits.[10]
A reversal and remand solely for the calculation of benefits is the appropriate disposition in this case. In Shalala v. Schaefer, ___ U.S. ___, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), the Supreme Court explained that the "exclusive methods" by which district courts may remand a case to the Commissioner are set forth in sentence four and sentence six of 42 U.S.C. § 405(g). Sentence four provides:
The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying or reversing the decision of the [Commissioner], with or without remanding the cause for a rehearing.
42 U.S.C. § 405(g). And, sentence six provides, in relevant part:
The court may, on motion of the [Commissioner] made for good cause shown before [she] files [her] answer, remand the case to the [Commissioner] for further action by the [Commissioner], and it may at any time order additional evidence to be taken before the [Commissioner], but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding....
Id.; see also Melkonyan v. Sullivan, 501 U.S. 89, 97-99, 111 S.Ct. 2157, 2162-63, 115 L.Ed.2d 78 (1991) (discussing the two types of remand); Sullivan v. Finkelstein, 496 U.S. 617, 624-27, 110 S.Ct. 2658, 2663-65, 110 L.Ed.2d 563 (1990) (same); Caceres v. Shalala, No. 93 Civ. 7444, 1995 WL 20312, at *2 (S.D.N.Y. Jan. 19, 1995) (McKenna, J.) ("The Court has jurisdiction to affirm, modify, or reverse any final decision of the Secretary.... The Court may remand for good cause shown or to consider additional evidence which is material and not improperly ignored originally.") (citations omitted); Irvine, 1992 WL 245581, at *5 (noting, under the recent Supreme Court cases, the two types of remand that are possible).
Here, there has been no showing of good cause by the Commissioner, nor has there been a proffer of new and material evidence. Indeed, the Commissioner has not sought a remand for the submission of new and material evidence or attempted to show good cause why that evidence was not proffered before the initial determination. Therefore, it is appropriate to grant the plaintiff's motion and deny the Commissioner's motion, reversing the Commissioner's decision that the plaintiff is not entitled to benefits and remanding the case for the calculation of benefits. In Rivera v. Sullivan, 771 F.Supp. 1339 (S.D.N.Y.1991), Magistrate Judge Dollinger's report, accepted by Judge Patterson, discussed the circumstances in which a remand is appropriate. The court explained:
The Second Circuit has noted that `where application of the correct legal principles to the record could lead to only one conclusion, there is no need to require agency reconsideration. In such a case, a remand solely for the purpose of calculating benefits is appropriate. Stated differently, the *304 payment of benefits may be ordered `when the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose.' If, on the other hand, the record would permit a conclusion by the Secretary that the plaintiff is not disabled, the appropriate remedy is to remand for further proceedings rather than for the calculation of benefits.
Id. at 1358-59 (citations omitted). In Rivera, the court remanded solely for the calculation of benefits. Id. at 1359-60; see also Koseck, 865 F.Supp. at 1013-15 (reversing the Secretary's decision and remanding for the calculation of benefits where there was not substantial evidence in the record to support the determination that the plaintiff could perform sedentary unskilled work); Irvine, 1992 WL 245581, at *4-*7 (granting the plaintiff's motion for judgment on the pleadings and remanding for the calculation of benefits where there was not substantial evidence of the plaintiff's ability to perform any substantial gainful activity); Morris, 1989 WL 270108, at *7 (reversing the Secretary's decision to deny benefits and remanding for the calculation of benefits where the Secretary failed to adduce evidence of the claimant's capability of gainful employment and where the Secretary's determination that the claimant could perform sedentary work was not supported by substantial evidence).
As discussed above, the record does not contain evidence that, upon proper consideration, could lead to the conclusion that the plaintiff can perform sedentary work. Therefore, a remand for the calculation of benefits is appropriate. Moreover, the Commissioner has not begun to meet the standards for a remand for additional evidence since she has shown no new material evidence nor shown good cause for having failed to present it at the hearing. See Carroll, 705 F.2d at 644.

IV.
For the reasons explained above, the plaintiff's motion for judgment on the pleadings is granted, the Commissioner's motion for judgment on pleadings is denied, and the Commissioner's denial of benefits is reversed and the case is remanded to the Commissioner solely for the calculation of benefits.
SO ORDERED.
NOTES
[1]  Pursuant to Public Law No. 103-296, §§ 105(a)(1), 106(d), 106(f), the function of the Secretary of Health and Human Services in Social Security cases was transferred to the Commissioner of Social Security effective March 31, 1995, and the Court may enter an order for substitution of parties. Accordingly, Shirley S. Chater, Commissioner of Social Security, has been substituted as the defendant in this action for the Secretary of Health and Human Services and the title Commissioner has been used for any references to the Secretary in the context of this case throughout this opinion.
[2]  Pursuant to the authorization of Chief Judge Jon O. Newman of the Court of Appeals for the Second Circuit, this case was transferred from the Northern District of New York to this Court for the purpose of disposing of the pending motion by order of Chief Judge Thomas J. McAvoy of the Northern District of New York dated November 5, 1994.
[3]  Accordingly, references to the determinations and findings that are at issue in this appeal are interchangeably referred to as those of the ALJ and those of the Commissioner.
[4]  RFC is defined as follows:

A medical assessment of what an individual can do in a work setting in spite of the functional limitations and environmental restrictions imposed by all of his or her medically determinable impairment(s). RFC is the maximum degree to which the individual retains the capacity for sustained performance of the physical-mental requirements of jobs.
Soc.Sec.Rep.Serv., SSR 83-10, at 31.
[5]  The Grid classifies work into five categories based on the exertional requirements of the different jobs. Specifically, it divides work into sedentary, light, medium, heavy and very heavy, based on the extent of requirements in the primary strength activities of sitting, standing, walking, lifting, carrying, pushing, and pulling.
[6]  An "exertional limitation" is a limitation or restriction imposed by impairments and related symptoms, such as pain, that affect only a claimant's ability to meet the strength demands of jobs (i.e. sitting, standing, walking, lifting, carrying, pushing, and pulling). 20 C.F.R. § 404.1569a(b). A "nonexertional limitation" is a limitation or restriction imposed by impairments and related symptoms, such as pain, that affect only the claimant's ability to meet the demands of jobs other than the strength demands. 20 C.F.R. § 404.1569a(c). Examples of nonexertional limitations are nervousness, difficulties with sight or vision, and an inability to tolerate dust or fumes. 20 C.F.R. § 404.1569a(c)(1)(i), (iv), (v).
[7]  A finding of disability for purposes of entitlement to Workers' Compensation is not dispositive on the issue of entitlement to Social Security benefits. See, e.g., Sims v. Sullivan, No. CV-91-1668, 1992 WL 138409, at *5 (E.D.N.Y. May 28, 1992) (report made in the context of the plaintiff's application for Workers' Compensation is not dispositive on the issue of disability under the Act); Bennett v. Secretary of the U.S. Dep't of Health and Human Servs., 769 F.Supp. 457, 461 (E.D.N.Y.1991) (indication of a "total" disability on a Workers' Compensation form was not sufficient, under the Act, to allow the Court to rule on the plaintiff's entitlement to benefits).
[8]  The issue of disability for purposes of workers' compensation is different from the issue of disability for purposes of Social Security disability benefits and SSI benefits. Workers' compensation determinators are directed to the worker's prior employment and measure the ability to perform that employment rather than using the definition of disability in the Social Security Act. Moreover, there is no such thing as partial disability for purposes of the Social Security Act. See Stephens, 766 F.2d at 285; Goodman v. Bowen, No. 87 CV 1251, 1988 WL 138281, at *3 (E.D.N.Y. Dec. 9, 1988). See also cases cited supra note 7.
[9]  In a letter dated February 23, 1993, Dr. Jones noted: "[Gray] continues to work with VESID and is looking for a sedentary job. He does not feel that he can attend college with his continuing knee problems, however." (R. at 200.)
[10]  Given the Court's decision to reverse the Commissioner's decision on the grounds discussed above, it is unnecessary to address the plaintiff's argument that because he has an unusual limitation on his ability to sit or stand, and because he suffers from nonexertional limitations with respect to the pain he experiences, the Commissioner was required to introduce the testimony of a vocational expert to sustain her burden of proving that jobs exist in the national economy that the plaintiff could perform. In arguing that there was no need for the testimony of a vocational expert, the Commissioner asserts: "Dr. Jones gave no indication that plaintiff could not sit for extended periods." (Def.'s Brief at 17.) It is useful to note that this argument misses the point and serves to underscore the lack of evidence supporting the Commissioner's burden to show that the plaintiff could perform sedentary work. See, e.g., Martin, 1994 WL 263818, at *4 (remanding the case where, among other things, there was no specific finding with respect to the ability to sit because "[t]he ability to sit for prolonged periods is an essential inquiry in determining whether a claimant has the residual functional capacity to perform sedentary work[]") (citing Ferraris v. Heckler, 728 F.2d 582, 586-87 (2d Cir.1984)); Camasto, 1989 WL 25251, at *3 (remanding for further consideration of the plaintiff's ability to sit for prolonged periods).

Also, because the decision of the Commissioner has been reversed it is unnecessary to consider the plaintiff's request that the Court consider the medical report relating to the knee surgery that he underwent on December 23, 1993.


                                     IN THE
                             TENTH COURT OF APPEALS

                                  No. 10-14-00216-CR

                          EX PARTE JUAN CARLOS MOREJON

                           From the County Court at Law No. 2
                               McLennan County, Texas
                              Trial Court No. 20140002HC2

                                         ORDER

        Juan Carlos Morejon filed an application for writ of habeas corpus, pursuant to

article 11.072 of the Texas Code of Criminal Procedure, challenging his misdemeanor

conviction for theft. After a hearing, the trial court denied relief. The State’s brief in this

appeal was originally due on January 9, 2015. The State has requested and been granted

two extensions of time to file its brief. It has now filed a third motion for extension of

time to file its brief.

        The State’s motion is denied. Its brief is ORDERED to be filed no later than 5:00

p.m. on April 13, 2015.

                                           PER CURIAM
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Motion denied
Order issued and filed March 26, 2015

Ex parte Morejon                        Page 2


35 Cal.Rptr.3d 917 (2005)
134 Cal.App.4th 262
In re Debra L. KOVEN, On Contempt.
Nos. B184017, B184018.
Court of Appeal, Second District, Division Six.
November 22, 2005.
*918 Eric S. Multhaup, Mill Valley, for Respondent.
THE COURT.[*]
These contempt proceedings arise from two petitions for rehearing filed by attorney Debra L. Koven (Koven) on behalf of her client, Paul Bashkin (Bashkin). In no uncertain terms Koven accuses us of "deliberate judicial dishonesty." (In re Buckley (1973) 10 Cal.3d 237, 250, 110 Cal.Rptr. 121, 514 P.2d 1201.) These accusations are not only false: they are "insolent, offensive, insulting, and [impugn] *919 the integrity of [this] court." (Ibid.) After we issued the orders to show cause and apparently after some reflection, Koven now concedes that the accusations "are both improper and inexcusable on their face. . . ." She "apologizes for the improper statements in the petitions, [and] expresses deep regret for impugning the [integrity of this] Court, and accepts the embarrassment she has brought upon herself."
We accept Koven's apology. Nevertheless, we do not purge Koven of the contempts she committed because her unsupported accusations of judicial misconduct are patently outrageous. Moreover, there is an aggravating factor. Koven has engaged in a pattern of abuse. She has also impugned the integrity of the trial judge, opposing counsel, and counsel's expert witnesses. (See Infra, at pp. 926-928.)
The Court of Appeal will not quietly suffer an attack upon its integrity. Our obligation to preserve the integrity of the judiciary compels us to find Koven guilty of two counts of direct criminal contempt of this court. We need not decide whether Koven could be found guilty on more than two counts of contempt because of the multiple contemptuous statements in both petitions. In view of her apology, we do not impose any jail time. It is sufficient to fine her $2,000: $1,000 for each of the two petitions for rehearing. We refer Koven to the State Bar for investigation and, if appropriate, the imposition of disciplinary sanctions. (Bus. & Prof.Code, § 6086.7.)

Factual and Procedural Background
Koven represented Bashkin in a legal malpractice action brought against DeWitt F. Blase and Heily & Blase (hereafter defendants). (Bashkin v. Blase et al., Ventura Super. Ct. No. CIV183660.) This action arose from defendants' representation of Bashkin in a combined legal malpractice and medical malpractice action against Bashkin's former attorney (Stephen Marpet) and a psychiatrist (Arthur Sorosky). (Bashkin v. Sorosky & Marpet, Los Angeles Super. Ct. No. LC026201.)
On Bashkin's behalf, Koven filed three appeals. We take judicial notice of the records in these cases. (Evid.Code, § 452, subd. (d).) The first appeal (No. B143004), filed on July 10, 2000, was from the trial court's order denying Bashkin's motion to disqualify defendants' counsel, Musick, Peeler & Garrett. This appeal is hereafter referred to as the "first disqualification appeal." On March 22, 2001, we filed our opinion affirming the trial court's order. (Nonpublished opinion by Yegan, J.; Gilbert, P.J. and Perren, J. concurring.)
The second appeal (No. B159344), filed on May 20, 2002, was from the trial court's order denying a new motion by Bashkin to disqualify defendants' counsel and an expert witness (David R. Glickman) retained by counsel. This appeal is hereafter referred to as the "second disqualification appeal."
On December 24, 2002, summary judgment was entered in favor of defendants. The third appeal (No. B168013), filed on June 17, 2003, was from that judgment. This appeal is hereafter referred to as the "summary judgment appeal."
On June 18, 2003, Koven filed a letter requesting that all of the justices of this division (Division Six, Second District Court of Appeal) recuse themselves in the second disqualification appeal. The justices of this division are Gilbert, Yegan, Coffee and Perren. Koven alleged that a reasonable person aware of the facts would "`doubt [their] ability to be impartial.'"
As to Justice Coffee, Koven asserted: "I have just been informed that Justice Coffee, while in private practice, represented [defendants] in an action entitled, Buckley *920 v. Heily & Blase. As a result of the representation, Justice Coffee clearly owes a continuing duty of loyalty to [defendants], which would make it difficult for him to be fair to my client. . . ."
Koven alleged that Justices Yegan and Perren were not impartial because they had "sat on the bench of the Ventura County Superior Court during the time that [defendant] DeWitt Blase was actively trying cases in that venue." Koven claimed that a Ventura County Superior Court judge-Barbara A. Lane-had "voluntarily recused herself [in the instant action], ruling sua sponte, that all Ventura County Superior Court judges had `intimate knowledge' of [defendants], and as such, it would be `very awkward' to have the case remain in Ventura and be heard by judges who knew `intimately both of the defendants.'" "Given [the judge's] statements," Koven asserted, "[Justices Yegan and Perren] would necessarily be included amongst those who could not be impartial in hearing a matter between [defendants] and [Bashkin]." But Judge Lane did not "rule" that all Ventura County Superior Court judges had intimate knowledge of defendants. She gratuitously said: "There's probably no judge in this courthouse who doesn't know the defendant [DeWitt Blase]." "[T]hat might make this case awkward. He's a character and very well-known in Ventura County."
Furthermore, Koven maintained that the justices of this division were not impartial because they had ruled against Bashkin in previous matters, including his request to stay the trial court proceedings pending the resolution of the second disqualification appeal. Koven alleged: "By failing to grant the stay request, this Division has predetermined its ruling against my client in the instant appeal." Koven accused the justices of Division Six of having "repeatedly denied" her client the "right to equal protection under the law. . . ."
Defendants filed opposition to the request for recusal. Defendants' counsel noted that it had "submitted respondents' brief, which addresses every one of the arguments made in appellant's 47-page opening brief." Defendants' counsel stated: "Spending this kind of time and money on briefing is hardly consistent with knowledge that `the fix is in' before this Division. As each of you certainly knows, I have no such knowledge."
In an order signed by Presiding Justice Gilbert and filed on July 2, 2003, this court denied the request for recusal "as frivolous."
On July 17, 2003, this court ordered, on its own motion, that the second disqualification appeal "be considered and heard together" with the summary judgment appeal.
On April 22, 2005, Bashkin filed his reply brief in the summary judgment appeal. Oral argument in the second disqualification and summary judgment appeals was heard on May 11, 2005. Because Bashkin's appeals were the last matter on the afternoon calendar and Justice Coffee was not on the panel of justices hearing the appeals, he left the bench before oral argument began.
On May 31, 2005, this court filed its opinions in both appeals. (Nonpublished opinions by Yegan, J.; Gilbert, P.J. and Perren, J. concurring.) We affirmed the trial court's order denying Bashkin's new motion to disqualify defendant's counsel and the expert witness. In addition, we affirmed the summary judgment. Koven filed petitions for rehearing in both appeals. We denied the petitions.
Before denying the petitions for rehearing, we issued two orders, one for each appeal, requiring Koven to show cause *921 why she "should not be adjudged guilty of contempt and punished for impugning the integrity of this court." The order to show cause arising out of the second disqualification appeal was assigned case No. B184017. The order to show cause arising out of the summary judgment appeal was assigned case No. B184018.
The order to show cause arising out of the second disqualification appeal stated that it was "based on the petition for rehearing..., including but not limited to the following statements:
1. `After reading the Opinion, it became painfully obvious that this Court worked backwards in reviewing the issues to ensure that the "ends justified the means." . . . [¶] It is clear from the Opinion that this Court neither reviewed the controlling cases, nor read [Bashkin's] Reply Brief, which contained the authority mandating reversal. And why would this Court look at cases cited by [Bashkin], anyhow, when it has concealed its own conflicts with defendants resulting from their prior relationships! How could [Bashkin] possibly convince this Court to follow the governing law requiring expert's and counsel's disqualification, when this Court engaged in the same type of "loyalty-breaching" activities that [Bashkin] was complaining about in his motion to disqualify them?! [Bashkin] never stood a chance to succeed on this appeal. If this Court dared to disqualify an expert and a defense firm that failed to disclose conflicts, its own conduct could be called into question! The cards were not only stacked against [Bashkin], but the Jokers were wild!'
2. `THE COURT CONSPIRED WITH [DEFENDANTS] TO DEFEAT [BASHKIN'S] INTEREST.'
3. `In fact, the justices of this Court refused to disclose their conflicts of interest; refused to respond to [Bashkin's] charges; and refused to recuse themselves, precisely because "the fix was in," to quote [defendants'] counsel.'
4. `Despite its obvious "window-dressing," this Court's elaborate "staging" of the removal of Justice Coffee from the panel hearing oral argument on [Bashkin's] two appeals, ironically proved three things: First, that Justice Gilbert knew full well that [Bashkin's] charges against the other three justices were anything but "frivolous." Second, that all of the prior rulings against [Bashkin] in which at least Justice Coffee participated were tainted. And, third, that there were still at least two justices comprising the panel (Yegan and Perren), with personal biases in favor of [defendants], who had failed to respond to [Bashkin's] recusal demands, that were going to perpetuate the "fix." [¶] . . . An independent review of the totality of the circumstances would disclose a "personal bias or prejudice" by the conflicted justices in favor of [defendants] and against [Bashkin]. . . . This Court's rulings against [Bashkin] in this appeal, each of which had no basis whatsoever in fact or law, were merely a reaffirmation that the "fix" was proceeding full bore.'
5. `A reasonable person, aware of the facts, would believe that this Court purposely denied [Bashkin's] stay request and purposely delayed the hearing on this interim appeal . . ., since it had already predetermined that it could "kill-two-birds-with-one-stone" by first affirming the *922 summary judgment, and then claiming that its affirmance somehow `mooted' the Glickman disqualification. This fix was not only "in," but proceeding at full throttle.'
6. `This Court's predilection for prejudicial posturing. . . .'
7. `THIS COURT MANIPULATED AN AFFIRMANCE. . . .'
8. `If this Court had conducted an honest and impartial review of [Bashkin's] willful suppression claim, it would have to have found, as a matter of law, a willful suppression of evidence by MP & G [Musick, Peeler & Garrett]. . . .'
9. `The bottom line: the record establishes the "presence of judicial partiality" in . . . this Court's review of [Bashkin's] motion.' `In fact, this Court's finding is a complete red herring. This court purposely concocted a flimsy excuse not to rule on the merits of this issue, because it knew that to do so would have required it to reverse. . . .'"
The order to show cause arising out of the summary judgment appeal stated that it was "based on the petition for rehearing,. . . including but not limited to the following statements:
1. `[I]t is difficult to remain focused on what is "just" when faced with an unfair and biased Court that predetermined its findings and worked backwards to get there, by deciding the instant appeal before the interim disqualification appeal. In light of their own inherent conflicts of interest pertaining to prior relationships with [defendants]  not to mention, the home-town factor of the "Ventura Good-Old Boy" [defendants]  in combination with the personal animus this Court has toward [Bashkin], even with Clarence Darrow as his representative, [Bashkin] did not stand a chance of prevailing in this Court. The fix was most assuredly "in."'
2. `In order to manipulate an affirmance, this Court ignored issues that mandated reversal; refused to apply the law that supported [Bashkin's] position; failed to view the facts and inferences in the light most favorable to [Bashkin], all to his detriment and prejudice, and employed an "end-justify-the-means" approach in order to push this litigant out of the court system.'
3. `[This court] refused to afford [Bashkin] an opportunity to address these additional grounds upon which his appeal was rejected, because its intent was to deny [Bashkin] his constitutional right to equal protection under the law.'
4. `This Court's finding was not simply a flagrant, reprehensible breach of its ethical and legal obligations to afford every litigant, including [Bashkin], equal protection under the law, but it is contrary to all published legal authority in this state. Moreover, it demonstrates a profound lack of integrity, by directly assaulting . . . [Bashkin's] right to have each of his appeals reviewed by a non-prejudicial court that had not enjoyed prior relationships with [defendants] which it kept concealed for the entirety of [Bashkin's] lawsuits involving them!'
5. `When this Court chose to engage in a betrayal of the fundamental values and principles of the law, in order to defeat the interests of a "Bashkin," it undertook an "ends-justifies-the-means" approach. The "ends" was to eliminate [Bashkin] from the judicial system, whatever *923 the cost  the cost being this Court's integrity and continuing viability as a depository of the public trust.'
6. `Far from viewing the evidence in the light most favorable to [Bashkin], this Court spent two pages of its Opinion trashing [Bashkin] as the "patient-from-hell"[[1]] who allegedly ordered his doctor to alter his medical records. . . . How convenient for this Court to concoct a trumped-up review of this issue that fits so snugly into its own predetermined perception of this litigant!'
7. `THIS COURT MISREPRESENTED THE EVIDENCE IN ORDER TO MANIPULATE AN AFFIRMANCE ON THE SOROSKY FRAUD THEORY OF LIABILITY.'

8. `[I]f this panel remains steadfast to its unique interpretation of the proper review of unchallenged theories, it must publish its Opinion, so that [Bashkin] will not be singled out for special treatment (which, of course, was this Court's intention from the outset).'
9. `The bottom line is: this Court refused to apply the governing principles and law to it[s] analysis of the facts in order to manipulate an affirmance on this issue in favor of a litigant with whom the Court had a personal relationship and against a litigant it views with disdain. . . . Therefore, it must now rehear and reverse the summary judgment on these fraud theories of liability, or be guilty of itself having committed fraud in betraying its duty to uphold the public trust in a fair, impartial judiciary.'"
On September 21, 2005, the California Supreme Court denied Bashkin's petitions for review in the second disqualification and summary judgment appeals. On September 26, 2005, Koven filed a consolidated return to the orders to show cause. Koven apologized for her statements in the petitions for rehearing. On October 14, 2005, we conducted a hearing on the orders to show cause. Koven and her counsel personally appeared at the hearing. Koven's counsel suggested, among other things, that in light of her sincere apology, we should vacate the orders to show cause and not find Koven in contempt.

Contempt: Impugning the Integrity of the Court
A direct contempt "is committed in the immediate view and presence of the court, or of the judge at chambers. . . ." (Code Civ. Proc., § 1211, subd. (a).)[2] It may be punished "summarily." (Ibid.) "[I]t is the settled law of this state that an attorney commits a direct contempt when he impugns the integrity of the court by statements made in open court either orally or in writing. [Citations.] Insolence to the judge in the form of insulting words or conduct in court has traditionally been recognized in the common law as constituting grounds for contempt. [Citation.]" (In re Buckley, supra, 10 Cal.3d at p. 248, 110 Cal.Rptr. 121, 514 P.2d 1201.)
An attorney also commits a direct contempt by impugning the integrity of the court in a document filed with the court. "The California Supreme Court has long held that the inclusion of a contemptuous statement in a document filed in a court is a contempt committed in the immediate *924 presence of the court and thus constitutes a direct contempt. [Citations.]" (In re White (2004) 121 Cal.App.4th 1453, 1478, fn. 19, 18 Cal.Rptr.3d 444.) For example, in Blodgett v. Superior Court (1930) 210 Cal. 1, 9, 290 P. 293, the California Supreme Court held that the filing of points and authorities containing contemptuous statements constituted a direct contempt. "[T]he fact that the alleged contemptuous statements were contained in pleadings or other papers filed in court does not furnish any excuse or defense against the charge of contempt. It is well settled that contempt may be committed by incorporating impertinent, scandalous, insulting or contemptuous language reflecting on the integrity of the court in pleadings, motions, notice of motions, affidavits, and other papers filed in court. [Citations.]" (Hume v. Superior Court in and for Los Angeles County (1941) 17 Cal.2d 506, 513-514, 110 P.2d 669.)
"`The judge of a court is well within his rights in protecting his own reputation from groundless attacks upon his judicial integrity and it is his bounden duty to protect the integrity of his court.' [Citation.] `However willing he may be to forego the private injury, the obligation is upon him by his oath to maintain the respect due to the court over which he presides.' [Citation.]" (In re Ciraolo (1969) 70 Cal.2d 389, 394-395, 74 Cal.Rptr. 865, 450 P.2d 241.)
Contempt proceedings for impugning a court's integrity are criminal in nature. "Where the primary object of contempt proceedings is to protect the rights of litigants, the proceedings are regarded as civil in character. On the other hand, where the object of the proceedings is to vindicate the dignity or authority of the court, they are regarded as criminal in character even though they arise from, or are ancillary to, a civil action. [Citation.]" (Morelli v. Superior Court (1970) 1 Cal.3d 328, 333, 82 Cal.Rptr. 375, 461 P.2d 655.)
An act of contempt is punishable by a fine not exceeding $1,000, or by imprisonment not exceeding five days, or by both fine and imprisonment. (§ 1218, subd. (a).)
Koven's statements in the petitions for rehearing are contemptuous on their face. In In re Buckley, supra, 10 Cal.3d at p. 250, 110 Cal.Rptr. 121, 514 P.2d 1201, our Supreme Court concluded that an attorney's statement  "`[t]his Court obviously doesn't want to apply the law'"  was "contemptuous on its face" because it could be fairly taken to mean "that the judge knew the law but deliberately chose to ignore it." In In re White, supra, 121 Cal.App.4th at p. 1478, 18 Cal.Rptr.3d 444, the court found language in a petition for writ of habeas corpus to be contemptuous because it implied "both that the court knowingly ignored the law and that it acted out of bias toward a party." In Hanson v. Superior Court (2001) 91 Cal.App.4th 75, 84-85, 109 Cal.Rptr.2d 782, the court held that counsel's statement "that his client `has not received a fair trial' was contemptuous on its face because it impugned [the trial judge's] integrity by suggesting he had failed in his duty to guarantee a fair trial."
Koven's statements impugning the integrity of this court are far more egregious than the statements in Buckley, White, and Hanson. She alleges that, because of this court's personal relationship with defendants and bias in their favor, we "fixed" the appeals so that defendants would prevail. The word "fix" means "to influence or arrange the outcome of by unlawful means." (The American Heritage Dictionary (2d ed.1982) p. 508, col. 2.) As it relates to the outcome of a lawsuit, the term carries the connotation that for money consideration, a certain result can be purchased from a judge of the court. (See *925 Willens v. Superior Court (1971) 19 Cal.App.3d 356, 359, 96 Cal.Rptr. 922.) This is also known as bribery. (See Pen.Code § 92, et seq.) Koven accuses us of ignoring the law and misrepresenting the evidence "[i]n order to manipulate an affirmance." According to Koven, "in order to defeat the interests of a `Bashkin', [we] undertook an `ends-justifies the means' approach. The `ends' was to eliminate [Bashkin] from the judicial system, whatever the cost-the cost being this Court's integrity and continuing viability as a depository of the public trust." Justice Coffee's departure from the bench before oral argument was "`window-dressing'" and an "elaborate `staging'" perpetrated by this court. We "refused to disclose [our] conflicts of interest; refused to respond to [Bashkin's] charges; and refused to recuse [ourselves], precisely because `the fix was in'. . . ." Our rulings "were merely a reaffirmation that the `fix' was proceeding full bore." "The cards were not only stacked against [Bashkin], but the Jokers were wild!" We "purposely concocted a flimsy excuse not to rule on the merits of [an] issue, because [we] knew that to do so would have required [us] to reverse. . . ." Our "intent was to deny [Bashkin] his constitutional right to equal protection under the law." We "concoct[ed] a trumped-up review of [an] issue that fits so snugly into [our] own predetermined perception of [Bashkin]!" The "fix was not only `in,' but proceeding at full throttle."
Koven claims that this court and defendants "conspired" together to defeat Bashkin's appeals. "A conspiracy is an agreement entered into between two or more persons with the specific intent to agree to commit the crime of _____ and with the further specific intent to commit that crime, followed by an overt act. . . ." (CALJIC No. 6.10.) She argued that, if we did not grant a rehearing and reverse the summary judgment, we would be "guilty of . . . having committed fraud in betraying [our] duty to uphold the public trust in a fair, impartial judiciary."
Koven's statements impugning the integrity of this court are devoid of any factual support. Her request to recuse Justice Coffee was frivolous. The basis for her request was that she had "just been informed that . . ., while in private practice, [he had] represented [defendants] in an action entitled, Buckley v. Heily & Blase." Other than the case title, Koven provided no information about the prior matter. She did not say when or where the Buckley action had been filed, nor did she describe the issues in that action. She did not even give the action's case number. Koven presented no evidence to support her concern that Justice Coffee would not be impartial.
Koven's mere recitation of the case title was insufficient to require Justice Coffee to recuse himself even if he had represented the defendants in the prior matter. Recusal would have been required if the prior matter had "related to the same contested issues of fact and law as the present matter," or if he had represented the defendants within the previous two years. (Cal.Code Jud. Ethics, canon 3E(5)(a) & (b).) Justice Coffee's representation of defendants could not have occurred within two years of Koven's request for recusal. Pursuant to Evidence Code section 452, subdivision (h), we take judicial notice that Justice Coffee has continuously served as a member of the judiciary since January 1992. In any event, Justice Coffee was not on any of the panels that heard Bashkin's three appeals. The panels consisted of Justices Gilbert, Yegan, and Perren. The denial of the request to recuse Justice Coffee, therefore, could not have prejudiced Bashkin.
*926 As to Justices Yegan and Perren, Koven's sole basis for alleging the existence of a personal relationship with defendants is that these justices were on the Ventura County Superior Court when DeWitt Blase was practicing law before that court. It is illogical to assume that an attorney who regularly practices before a court develops personal ties with all of the judges assigned to that court. Koven has presented no evidence supporting the existence of any relationship, personal or otherwise, between these justices and Blase. Thus, her request to recuse Justices Yegan and Perren was also frivolous.
If Koven truly believed that Justices Yegan and Perren were biased against her client because of a personal relationship with defendants, she should have requested that they recuse themselves before she lost the first disqualification appeal. In her letter seeking recusal filed on June 18, 2003, Koven relied on Judge Lane's gratutious comments concerning knowledge of DeWitt Blase by Ventura County judges. But Judge Lane's comments were made in Koven's presence on August 19, 1999, approximately 11 months before Koven filed the notice of appeal in the first disqualification appeal. Koven never explained why, despite her knowledge of Judge Lane's comments, she waited until the second disqualification appeal to seek the recusal of Justices Yegan and Perren.
"[W]e can conceive of only one purpose, i.e., `judge-shopping,' for [Koven's] attempt . . . to cause this court to recuse itself. . . ." (First Western Development Corp. v. Superior Court (1989) 212 Cal.App.3d 860, 867, 261 Cal.Rptr. 116.) Koven lost the first disqualification appeal, and the second disqualification appeal involved similar issues. Koven must have concluded that she would fare better before a different division.
Accordingly, Koven is in direct contempt of this court. (See In re White, supra, 121 Cal.App.4th at p. 1478, fn. 19, 18 Cal.Rptr.3d 444.)

Koven's Apology
"[I]n instances of direct contempt an apology to the judge should be given serious consideration. [Citation.]" (In re Buckley, supra, 10 Cal.3d at p. 257, 110 Cal.Rptr. 121, 514 P.2d 1201.) We have given serious consideration to Koven's apology but, for the following reasons, we conclude that it is insufficient to purge her of the contempts she has committed:
1. Koven is an experienced attorney. She has been practicing law in California for 15 years.
2. Koven's charges are not only false, they are outrageous. We can think of no accusation more serious or injurious to a court's reputation than that it "conspired" with a party to "fix" the case.
3. The lack of any support whatsoever for Koven's charges, together with the timing of the charges, compels the conclusion that she was not acting in good faith. Koven waited to make her allegations of bias and misconduct until after she had lost the first disqualification appeal and after Blase died in 2002.[3] Whether or not she knew of his death when we decided the second and third appeals, it is inconceivable that this court, or any court, would engage in judicial dishonesty out of loyalty to a dead man. Since Blase had been dead for three years when this court decided the second disqualification and summary judgment appeals, it was legally impossible *927 for us to have "conspired" with him to defeat these appeals.
4. The tone of Koven's petitions for rehearing is spiteful and malicious. Our impression is that she was more concerned with venting her anger upon this court than advancing the interests of her client.
5. Koven's contemptuous statements were not blurted out inadvertently in the heat of a courtroom battle. They were deliberately made in petitions for rehearing after consideration of the issues. Her thinking capacity was not impaired by any physical or psychological problem. In her return to the order to show cause, Koven declared: "I have no issues as far as medical problems, substance abuse, prescription drug usage, or other physiological or psychological factor that contributed to my lapse of judgment."
6. This is not the first time in this litigation that Koven has impugned a court's integrity. Koven is a repeat offender. In her opening brief in the second disqualification appeal, Koven impugned the integrity of the trial judge, Kent M. Kellegrew. In the trial court, Koven had filed a written verified statement challenging Judge Kellegrew's impartiality after he had denied Bashkin's motion to disqualify opposing counsel and counsel's expert witness. (§ 170.3, subd. (c)(1).) In denying the motion, Judge Kellegrew found that Bashkin was "engaging in gamesmanship."[4] The issue of Judge Kellegrew's disqualification was heard and determined by Judge David T. McEachen of the Orange County Superior Court. Judge McEachen concluded that Judge Kellegrew was not disqualified. He found "that no reasonable person aware of the facts in this case would entertain a doubt as to Judge Kellegrew's ability to be impartial."
In her opening brief in the second disqualification appeal, Koven alleged that Judge Kellegrew had "escape[d] disqualification through his willful misconduct." She accused him of attempting "to cover up [his] malfeasance by proffering . . . [a] fraudulent excuse," of refusing to apply the law, and of "manufactur[ing] new law designed to defeat the interests of `a Mr. Bashkin,' in order to punish him for having exposed the judge's own appearance of impropriety." "As a result of [Baskin's] embarrassing revelations of the judge's appearance of impropriety, Judge Kellegrew shot the messenger, stripping [Bashkin] of his constitutional right to due process and equal protection, while becoming an advocate for the defense." Koven alleged that Judge Kellegrew had deliberately made Bashkin "the exception to the rules governing disqualification. . . ." Judge Kellegrew's "despicable conduct" and "contemptible" ruling had resulted from his "personal prejudices and abject refusal to apply controlling and dispositive authority. . . ." Koven claimed that Judge Kellegrew had "ignored . . . evidence since he had already predetermined that [Bashkin] should be treated as the `exception that proves the rule,' since these rules never `contemplated a Mr. Bashkin.'" "Judge Kellegrew predetermined his findings against [Bashkin] and then manipulated the facts to support them." Furthermore, *928 Koven maintained that "outrageous comments" by Judge Kellegrew had "established [his] desire to treat [Bashkin] differently than all other litigants and to deprive him of his constitutional guaranty to equal protection under the law." Finally, Koven alleged that Judge Kellegrew had submitted a "fraudulent" response to her written verified statement challenging his impartiality. Koven asserted that "Judge Kellegrew's deceit [had] deprived Judge McEachen `of the opportunity to exercise his informed discretion.'"
7. In her briefs in the second disqualification appeal, Koven also impugned the integrity of opposing counsel and of counsel's expert witnesses. She accused counsel of having perpetrated "a fraud on the public trust" by hiring "two conflicted experts" and of having "destroyed the public trust in the integrity of the bar." Koven also accused counsel of committing "fraud on the court regarding its willful suppression of evidence" and of engaging in "purposeful misconduct" to "manipulate[] the outcome of the case. . . ." Koven asserted that counsel had "admitted to willfully suppressing evidence and fraudulently deceiving both [Bashkin] and the trial court in order to prevent [Bashkin] from prevailing on the Motion [to disqualify counsel and counsel's expert witness]." Counsel's alleged misconduct had resulted in the "corruption of the judicial process." In addition, Koven claimed that counsel had committed perjury and had "suborned its experts' perjury regarding their conflicts-check systems, in order to escape disqualification." Perjury and subornation of perjury are felony offenses. (Pen.Code, §§ 118, 126, 127.)
It appears to us that Koven's approach to litigation focuses upon impugning the integrity of everyone in the legal system, whether judges, justices, attorneys, or expert witnesses, who obstruct the achievement of her goals. This shows a pattern of abuse which serves to aggravate the contempts committed here.

Disposition
We find Debra L. Koven guilty of two counts of direct criminal contempt of this court: one count for each petition for rehearing. She is ordered to pay a total fine of $2,000: $1,000 for each count of contempt, payable in the clerk's office of this court within 60 days after this decision becomes final for all purposes. Pursuant to Business and Professions Code section 6086.7, the clerk of this court is directed to forward to the State Bar a copy of this judgment of contempt. Upon the finality of judgment the clerk shall issue the remittiturs in case numbers B159344 and B168013.
NOTES
[*]  Before GILBERT, P.J.; YEGAN J. and PERREN J.
[1]  This court's opinion never referred to Bashkin as the "patient-from-hell."
[2]  All further statutory references are to the Code of Civil Procedure unless otherwise stated.
[3]  Pursuant to Evidence Code section 452, subdivision (h), we take judicial notice that Blase died on May 29, 2002. A death notice for Blase was published on page B7 of the June 1, 2002 edition of the Ventura County Star.
[4]  "`[A]s courts are increasingly aware, motions to disqualify counsel often pose the very threat to the integrity of the judicial process that they purport to prevent. [Citation.] Such motions can be misused to harass opposing counsel [citation], to delay the litigation [citation], or to intimidate an adversary into accepting settlement on terms that would not otherwise be acceptable. [Citations.] In short, it is widely understood by judges that "attorneys now commonly use disqualification motions for purely strategic purposes. . . ." [Citations.]' [Citation.]" (Adams v. Aerojet-General Corp. (2001) 86 Cal.App.4th 1324, 1339-1340, 104 Cal.Rptr.2d 116.)


537 F.2d 1141
Jacobsenv.Wagner*
No. 76-1945
United States Court of Appeals, Fifth Circuit
8/12/76

1
N.D.Tex.

2
VACATED AND REMANDED***

*
 Summary Calendar case; Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, et al., 5 Cir. 1970, 431 F.2d 409

***
 Opinion contains citation(s) or special notations