Watts v. Colvin

Filing 19

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner of Social Security be REVERSED and REMANDED pursuant to sentence four of 42:405(g) for further proceedings. Signed by Magistrate Judge Katherine P. Nelson on 12/1/2014. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LILLIE P. WATTS,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)

Civil Action No. 14-00052-N

MEMORANDUM OPINION AND ORDER
Plaintiff Lillie P. Watts (“Watts”) has brought this action under 42 U.S.C. §
405(g) seeking judicial review of a final decision of the Commissioner of Social
Security (“the Commissioner”). (See Doc. 1). By the consent of the parties (see Doc.
17), the Court has designated the undersigned United States Magistrate Judge to
conduct all proceedings and order the entry of judgment in this civil action under 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73.1 (See Doc. 18).
Upon consideration of the parties’ briefs (Docs. 13, 14), the relevant portions
of the administrative record (Doc. 12) (hereinafter cited as “(R. [page number(s)])”),
and oral argument conducted August 26, 2014, the Court finds that the
Commissioner’s decision is due to be REVERSED and REMANDED.
I.

Procedural Background

On January 13, 2011, Watts protectively filed with the Social Security
Administration (“SSA”) an application for a period of disability and disability

Thus, an appeal taken from the judgment entered in this action may be made directly to
the Eleventh Circuit Court of Appeals. See § 636(c)(3); Fed. R. Civ. P. 73(c).

1

insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§
401-433, alleging disability beginning March 14, 2003.2 After her application was
initially denied on June 3, 2011, Watts requested a hearing. A hearing on Watts’s
application was held before an Administrative Law Judge (“ALJ”) in Mobile,
Alabama, on December 4, 2012, at which Watts, represented by counsel, appeared
and testified. (See R. 27).
On January 24, 2013, the ALJ issued an unfavorable decision on Watts’s
application, finding that Watts “was not disabled under sections 216(i) and 223(d) of
the Social Security Act through September 30, 2011, the date last insured.” (R. 2437). Watts requested review of the ALJ’s decision by the Appeals Council for the
SSA’s Office of Disability Adjudication and Review.

On December 9, 2013, the

Appeals Council issued its decision declining review (R. 13-15), thus making the
ALJ’s January 24, 2013 decision the Commissioner’s final decision. See 20 C.F.R. §
404.981 (2014) (“The Appeals Council's decision, or the decision of the
administrative law judge if the request for review is denied, is binding unless you or
another party file an action in Federal district court, or the decision is revised. You
may file an action in a Federal district court within 60 days after the date you
receive notice of the Appeals Council's action.”); Crow v. Comm'r, Soc. Sec. Admin.,
571 F. App’x 802, 805 (11th Cir. 2014) (per curiam)3 (“When the Appeals Council

“The Social Security Act's general disability insurance benefits program (‘DIB’) provides
income to individuals who are forced into involuntary, premature retirement, provided they
are both insured and disabled, regardless of indigence.” Sanders v. Astrue, Civil Action No.
11-0491-N, 2012 WL 4497733, at *3 (S.D. Ala. Sept. 28, 2012) (citing 42 U.S.C. 423(a)).

2

3

In this Circuit, “[u]npublished opinions are not considered binding precedent, but they

2

denies review of the ALJ's decision, we review the ALJ's decision as the
Commissioner's final decision.” (citing Doughty v. Apfel, 245 F.3d 1274, 1278 (11th
Cir. 2001)).
On February 7, 2014, Watts filed this action for judicial review of the
Commissioner’s final decision under § 405(g). (See Doc. 1).
II.

Standard of Review

In all Social Security cases, a plaintiff (sometimes referred to as a claimant)
bears the burden of proving that he or she is unable to perform his or her previous
work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In evaluating whether
that burden has been met, and thus whether a claimant has proven that he or she is
disabled, the examiner (most often an ALJ) must consider the following four factors:
(1) objective medical facts and clinical findings; (2) diagnoses of examining
physicians; (3) evidence of pain; and (4) the plaintiff’s age, education, and work
history, see id.; and, in turn,
uses a five-step sequential evaluation to determine whether the
claimant is disabled, which considers: (1) whether the claimant is
engaged in substantial gainful activity; (2) if not, whether the claimant
has a severe impairment; (3) if so, whether the severe impairment
meets or equals an impairment in the Listing of Impairments in the
regulations; (4) if not, whether the claimant has the [residual
functional capacity, or] RFC[,] to perform her past relevant work; and
(5) if not, whether, in light of the claimant’s RFC, age, education and
work experience, there are other jobs the claimant can perform.
Watkins v. Comm’r of Soc. Sec., 457 F. App’x 868, 870 (11th Cir. Feb. 9, 2012) (per
curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f); Phillips v.

may be cited as persuasive authority.” 11th Cir. R. 36-2 (effective Aug. 1, 2014).

3

Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted).4
If, in steps one through four of the above-articulated five-step evaluation, a
plaintiff proves that he or she cannot do his or her past relevant work, it then
becomes the Commissioner’s burden, at the fifth step, to prove that the plaintiff is
capable—given his or her age, education, and work history—of engaging in another
kind of substantial gainful employment that exists in the national economy. Id.;
Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler, 764 F.2d
834, 836 (11th Cir. 1985). Finally, but importantly, although “the [plaintiff] bears
the burden of demonstrating the inability to return to [his or] her past relevant
work, the Commissioner of Social Security has an obligation to develop a full and
fair record.”

Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations

omitted).
The task for this Court on judicial review is to determine whether the
Commissioner’s decision to deny a plaintiff benefits is supported by substantial
evidence. Substantial evidence is defined as “more than a scintilla” and means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.

Richardson v. Perales, 402 U.S. 389, 401 (1971).

“In determining

whether substantial evidence exists, [a court] must view the record as a whole,
taking

into

account

evidence

favorable

as

well

as

unfavorable

to

the

[Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
Courts are precluded, however, from “deciding the facts anew or re-weighing the

The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing individual
steps of this five-step sequential evaluation.

4

4

evidence.” Davison v. Astrue, 370 F. App’x 995, 996 (11th Cir. 2010) (per curiam)
(citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)). And, “[e]ven if the
evidence preponderates against the Commissioner’s findings, [a court] must affirm
if the decision reached is supported by substantial evidence.” Id. (citing Crawford
v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004)) (emphasis added).
“There is no presumption, however, that the Commissioner followed the appropriate
legal standards in deciding a claim for benefits or that the legal conclusions reached
were valid.

Instead, [the court] conduct[s] ‘an exacting examination’ of these

factors.” Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (per curiam) (citing
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)) (internal citation omitted).
III.

Claims on Appeal

(1)

“The Administrative Law Judge’s residual functional capacity
determination at the fifth step of the sequential evaluation process was
not supported by substantial evidence and entirely abrogated the
medical opinions by Plaintiff’s treating physician that indicated
Plaintiff could not perform substantial gainful activity.” (Doc. 13 at 2).

(2)

“The Administrative Law Judge committed reversible error by failing
to give adequate and controlling weight to the opinion of Plaintiff’s
treating physician, Dr. Cecil Parker, M.D., in violation of 20 C.F.R. §
404.1527 and Social Security Ruling 96-2p.” (Id.).
IV.

Analysis

At Step Four,
the ALJ must assess: (1) the claimant's residual functional capacity
(“RFC”); and (2) the claimant's ability to return to her past relevant
work. 20 C.F.R. § 404.1520(a)(4)(iv). As for the claimant's RFC, the
regulations define RFC as that which an individual is still able to do
despite the limitations caused by his or her impairments. 20 C.F.R. §
404.1545(a). Moreover, the ALJ will “assess and make a finding about
[the claimant's] residual functional capacity based on all the relevant
medical and other evidence” in the case. 20 C.F.R. § 404.1520(e).
5

Furthermore, the RFC determination is used both to determine
whether the claimant: (1) can return to her past relevant work under
the fourth step; and (2) can adjust to other work under the fifth step,
discussed below. 20 C.F.R. § 404.1520(e).
If the claimant can return to her past relevant work, the ALJ will
conclude that the claimant is not disabled. 20 C.F.R. §
404.1520(a)(4)(iv) & (f). If the claimant cannot return to her past
relevant work, the ALJ moves on to step five.
In determining whether [a claimant] can return to her past relevant
work, the ALJ must determine the claimant's RFC using all relevant
medical and other evidence in the case. 20 C.F.R. § 404.1520(e). That
is, the ALJ must determine if the claimant is limited to a particular
work level. See 20 C.F.R. § 404.1567.4 Once the ALJ assesses the
claimant's RFC and determines that the claimant cannot return to her
prior relevant work, the ALJ moves on to the fifth, and final, step.
Phillips, 357 F.3d at 1238-39 (footnote omitted).
“For DIB claims, a claimant is eligible for benefits where she demonstrates
disability on or before the last date for which she were insured.” Moore v. Barnhart,
405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam) (citing 42 U.S.C. § 423(a)(1)(A)
(2005)). “Because [Watts]’s last insured date was [September 30, 20115], her DIB
appeal requires a showing of disability on or before that date.” Id.
The ALJ, “[a]fter careful consideration of the entire record,…f[ound] that,
through the date last insured, [Watts] had the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) except she can perform only
frequent reaching both overhead and other reaching. She can only occasionally
balance, stoop, kneel, crouch, and crawl. [She] can never climb ladders, scaffolds,
and ropes.

She can perform no work around unprotected heights or dangerous

moving equipment. She must avoid crowds, and can have only occasional contact
5

(R. 27, 37).

6

with the public. She must avoid tasks involving a variety of instructions or tasks
but is able to understand to carry out simple one- or two-step instructions and is
able to understand to carry out ‘detailed but uninvolved’ written or oral instructions
involving a few concrete variables in or from standardized situations.

She can

manage only minimal changes in the work setting and routines. She can be called
on to make judgments on only simple, work-related decisions.”6 (R. 32).
Watts argues that the ALJ, in making this determination, erred in
discounting the medical opinions of her treating physician, Dr. Cecil L. Parker, Jr.,
M.D. 7

Dr. Parker completed two form evaluations – a Physical Capabilities

Evaluation (R. 410) (“PCE”) and a Clinical Assessment of Pain Form (R. 411-12)
(“CAP Form”) – regarding Watts on September 14, 2012. Regarding Dr. Parker’s
opinions, the ALJ’s decision in Step Four states as follows:
Treatment notes from Cecil L Parker Jr., M.D., between April 6, 2009
and January 20, 2012, indicate that the claimant presented with minor
complaints of back pain. Dr. Parker noted that the claimant was obese
and had performed heavy work in the past. Dr. Parker’s notes do
indicate a reference to arthropathy, as well as a reference to elbow
tendinitis in 2009 (8F/24[ 8 ]). However, Dr. Parker’s notes do not
contain specific diagnoses. The records do not support the claimant’s
allegations of disability.
“To determine the physical exertion requirements of different types of employment in the
national economy, the Commissioner classifies jobs as sedentary, light, medium, heavy, and
very heavy.” Phillips, 357 F.3d at 1239 n.4.

6

“ ‘Medical opinions are statements from physicians and psychologists or other acceptable
medical sources that reflect judgments about the nature and severity of [the claimant's]
impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the
claimant] can still do despite impairment(s), and [the claimant's] physical or mental
restrictions.’ ” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178-79 (11th Cir. 2011)
(quoting 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2)).

7

8

(R. 376 [Dr. Parker’s 9-29-09 Treatment Notes]).

7

…
Dr. Parker submitted a physical capacities evaluation dated
September 14, 2012, in which he opined that the claimant could
perform no sitting [sic] standing or walking during an eight hour day,
that she could lift a total of up to 5 pounds for one hour during an eight
hour workday, that she could perform no grasping, pushing [sic]
pulling, or fine manipulation on a repetitive basis, and that she could
not use her legs or feet for repetitive action such as pushing or pulling
of leg controls. Dr. Parker also found that the claimant was unable to
perform any bending, squatting, crawling, climbing, or reaching in an
eight hour workday. Dr. Parker opined that the claimant had been
thus impaired since December 29, 2009 (12F[9]). Dr. Parker’s opinion
as a treating physician is considered. However his opinion is not
reflective of his earlier prepared treatment notes.
While it is
understandable that a treating physician may be sympathetic to the
claimant, when the treating physician’s opinion is inconsistent with
other evidence, including his own treatment findings, the opinion must
be disregarded. In this case, Dr. Parker’s assessment is completely
inconsistent with not only the other evidence of record, including other
examinations of the claimant, but is also totally inconsistent with his
prior treatment findings. Thus Dr. Parker’s opinion rendered on
September 14, 2012 is given no weight…
(R. 34-36).
Social Security Ruling 96-2p, 1996 WL 374188 (effective July 2, 1996), 10
states: “If a treating source's medical opinion is well-supported and not inconsistent
with the other substantial evidence in the case record, it must be given controlling
weight; i.e., it must be adopted.”

9

However, “[i]t is an error to give an opinion

(R. 410 [Dr. Parker’s PCE]).

“ ‘Social Security Rulings are agency rulings published under the authority of the
Commissioner of Social Security and are binding on all components of the Administration.’
Sullivan v. Zebley, 493 U.S. 521, 531 n.9, 110 S. Ct. 885, 891 n.9, 107 L. Ed. 2d 967 (1990)
(internal quotations omitted). Although SSA rulings are not binding on this Court, we
accord the rulings deference. See Fair v. Shalala, 37 F.3d 1466, 1468–69 (11th Cir. 1994).”
De Olazabal v. Soc. Sec. Admin., Com'r, No. 13-15285, 2014 WL 4364889, at *4 (11th Cir.
Sept. 4, 2014) (per curiam) (unpublished).

10

8

controlling weight simply because it is the opinion of a treating source if it is not
well-supported

by

medically

acceptable

clinical

and

laboratory

diagnostic

techniques or if it is inconsistent with the other substantial evidence in the case
record.” SSR 96-2p, 1996 WL 374188.
Moreover, “a finding that a treating source medical opinion is not wellsupported by medically acceptable clinical and laboratory diagnostic techniques or
is inconsistent with the other substantial evidence in the case record means only
that the opinion is not entitled to ‘controlling weight,’ not that the opinion should be
rejected. Treating source medical opinions are still entitled to deference and must
be weighed using all of the factors provided in 20 CFR 404.1527 and 416.927. In
many cases, a treating source's medical opinion will be entitled to the greatest
weight and should be adopted, even if it does not meet the test for controlling
weight.” Id.
The Eleventh Circuit has held:
Absent “good cause,” an ALJ is to give the medical opinions of treating
physicians “substantial or considerable weight.” Lewis[ v. Callahan],
125 F.3d [1436,] 1440[ (11th Cir. 1997)]; see also 20 C.F.R. §§
404.1527(d)(1)-(2), 416.927(d)(1)-(2). Good cause exists “when the: (1)
treating physician's opinion was not bolstered by the evidence; (2)
evidence supported a contrary finding; or (3) treating physician's
opinion was conclusory or inconsistent with the doctor's own medical
records.” Phillips[ v. Barnhart], 357 F.3d [1232,] 1241[ (11th Cir.
2004)]. With good cause, an ALJ may disregard a treating physician's
opinion, but he “must clearly articulate [the] reasons” for doing so. Id.
at 1240–41.
Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178-79 (11th Cir. 2011). The
Court will not find reversible error “when the ALJ articulated specific reasons for

9

declining to give the treating physician's opinion controlling weight, and the reasons
were supported by substantial evidence.” Forrester v. Comm'r of Soc. Sec., 455 F.
App'x 899, 902 (11th Cir. 2012) (per curiam) (citing Moore v. Barnhart, 405 F.3d
1208, 1212 (11th Cir. 2005) (per curiam)).
Both parties argue at length why the ALJ correctly or incorrectly discounted
Dr. Parker’s opinions in both the PCE and the CAP Form. It is difficult to address
these arguments as to the CAP Form, however, because, unlike the PCE, the ALJ
does not specifically reference or discuss the opinions in the CAP Form or indicate
what weight she assigned them. The Court notes that, unlike the PCE, the CAP
Form does not indicate that its findings apply before Watts’s last insured date. (R.
415-16). In fact, in response to Question 9, which asks “How long has the patient’s
pain been at the level indicated above,” Dr. Parker wrote “pain level 8/10 since” but
did not specify a date. (R. 416). Moreover, as the Commissioner notes (see Doc. 14
at 8), in support of his determinations in the CAP Form, Dr. Parker cites only to
clinical and laboratory findings regarding the fracture of Watts’s right tibia and
fibula resulting from a May 2012 automobile accident, which occurred after the last
insured date. (See R. 30 (“The claimant reported having a fracture of the leg in
2012 secondary to a motor vehicle accident. However, this injury occurred after her
date last insured. Therefore, it is found not to be a severe impairment relative to a
determination of disability.”)).
Like the PCE, Dr. Parker’s CAP Form suggests that Watts is burdened by
significant impairments, as it opines that she is experiencing “intractable and

10

virtually incapacitating” pain, that physical activity will cause “[i]ncrease of pain to
such an extent that bed rest is necessary[,]” and that she “will be totally restricted
and thus unable to function at a Productive level of work” due to her level of pain.
(R. 415-16). While it is entirely possible that the ALJ discounted the CAP Form for
the same reasons she rejected the PCE, or because there was no indication Dr.
Parker’s opinions therein applied on or prior to Watts’s date last insured, the ALJ’s
complete failure to reference this opinion of a treating physician is reversible error.
As noted above, while the opinion of a treating physician may be disregarded for
good cause, the ALJ “must clearly articulate his reasons for doing so.” Lawton v.
Comm'r of Soc. Sec., 431 F. App'x 830, 834 (11th Cir. 2011) (per curiam) (citing
Phillips, 357 F.3d at 1240–41).
Moreover, the ALJ must state with particularity the weight given to
different medical opinions and the reasons therefor. Sharfarz v. Bowen,
825 F.2d 278, 279 (11th Cir. 1987) (per curiam). “In the absence of such
a statement, it is impossible for a reviewing court to determine
whether the ultimate decision on the merits of the claim is rational
and supported by substantial evidence.” Cowart v. Schweiker, 662 F.2d
731, 735 (11th Cir. 1981). Therefore, when the ALJ fails to “state with
at least some measure of clarity the grounds for his decision,” we will
decline to affirm “simply because some rationale might have supported
the ALJ's conclusion.” Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir.
1984) (per curiam). In such a situation, “to say that [the ALJ's]
decision is supported by substantial evidence approaches an abdication
of the court's duty to scrutinize the record as a whole to determine
whether the conclusions reached are rational.” Cowart, 662 F.2d at 735
(quoting Stawls v. Califano, 596 F.2d 1209, 1213 (4th Cir. 1979))
(internal quotation marks omitted).
Winschel, 631 F.3d at 1179. See also Davis v. Comm'r of Soc. Sec., 449 F. App'x 828,
833 (11th Cir. 2011) (per curiam) (“The ALJ must clearly articulate his reasons for
disregarding a treating physician's opinion. Moreover, his explanation must include

11

good reasons.

We will not affirm an ALJ's decision without adequate explanation

because, without such an explanation, it is impossible for a reviewing court to
determine whether the ultimate decision on the merits of the claim is rational and
supported by substantial evidence.” (internal citations and quotations omitted)).
Because the ALJ failed to expressly consider and assign weight to the
medical opinion of a treating physician, it is impossible for the Court to determine
whether the ultimate decision on the merits of Watts’s claim is rational and
supported by substantial evidence. 11 Because the Court finds this error alone
requires remand to the Commissioner, there is no need to consider the other
asserted claims of error at this time. Cf. Salter v. Astrue, Civil Action No. 11–
00681–C, 2012 WL 3817791, at *2 (S.D. Ala. Sept. 4, 2012) (“Because the Court
determines that the decision of the Commissioner should be reversed and remanded
for further proceedings based on the plaintiff’s second claim, regarding the RFC
determination, there is no need for the Court to consider the plaintiff’s other
claims.” (citing Robinson v. Massanari, 176 F. Supp. 2d 1278, 1280 & n.2 (S.D. Ala.
2001); Pendley v. Heckler, 767 F.2d 1561, 1563 (11th Cir. 1985) (“Because the
‘misuse of the expert’s testimony alone warrants reversal,’ we do not consider the
appellant’s other claims.”))).
Therefore, the Commissioner’s final decision in this action is due to be
While it could be argued that the ALJ might simply have lumped the opinions in the CAP
Form together with those in Dr. Parker’s PCE and/or treatment notes, the record does not
support such a determination. The ALJ’s opinion specifically references Dr. Parker’s
treatment notes and the CPE, both by name and by the exhibit numbers corresponding to
those particular pieces of evidence (Exs. 8F and 12F, respectively). The CAP Form is not
referenced either by name or exhibit number (13F), and the ALJ’s decision does not discuss
the opinions expressed therein regarding Watts’s level of pain and its impact.

11

12

REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g).12
V.

Conclusion

In accordance with the foregoing analysis, it is ORDERED that the decision
of the Commissioner of Social Security denying Watts benefits is REVERSED and
REMANDED pursuant to sentence four of 42 U.S.C. § 405(g), see Melkonyan v.
Sullivan, 501 U.S. 89 (1991), for further proceedings not inconsistent with this
decision.

The remand pursuant to sentence four of § 405(g) makes Watts a

prevailing party for purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412,
see Shalala v. Schaefer, 509 U.S. 292 (1993), and terminates this Court’s
jurisdiction over this matter.
Final judgment shall issue separately in accordance with this Order and
Federal Rule of Civil Procedure 58.
DONE and ORDERED this the 1st day of December 2014.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

See Lawton, 431 F. App'x at 835 (“There is language in MacGregor v. Bowen, 786 F.2d
1050 (11th Cir. 1986), for the proposition that, if an ALJ fails clearly to articulate reasons
for discounting the opinion of a treating physician, that evidence must be accepted as true
as a matter of law. However, our earlier decisions had remanded cases to the agency when
there was a failure to provide an adequate credibility determination. See, e.g., Owens, 748
F.2d at 1516; Wiggins v. Schweiker, 679 F.2d 1387, 1390 (11th Cir. 1982). Pursuant to the
prior precedent rule, we are bound by the holding of the first panel to address an issue of
law, unless and until it is overruled by this Court sitting en banc or the Supreme Court.
United States v. Steele, 147 F.3d 1316, 1318 (11th Cir.1998) (en banc). Accordingly, rather
than broadly accept the doctors' opinions as true, we will remand to the agency so that it
can make a determination in the first instance of the proper weight to be afforded to those
opinions.”); Davis v. Comm'r of Soc. Sec., 449 F. App'x 828, 833 n.1 (11th Cir. 2011) (per
curiam) (same).

12

13