Ezzell v. Commissioner of Social Security
Filing
23
MEMORANDUM OPINION AND ORDER. Signed by Magistrate Judge Monte C. Richardson on 1/3/2014. (MOH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
CARLTON EZZELL,
Plaintiff,
vs.
Case No: 3:13-cv-166-J-MCR
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
MEMORANDUM OPINION AND ORDER 1
This cause is before the Court on Plaintiff’s appeal of an administrative decision
denying his application for Social Security benefits. The Court has reviewed the record,
the briefs, and the applicable law. For the reasons set forth herein, the Commissioner’s
decision is AFFIRMED.
I.
PROCEDURAL HISTORY
Plaintiff filed a Title II application for a period of disability and disability insurance
benefits (“DIB”) on April 1, 2010, alleging disability beginning on November 6, 2006.
(Tr. 66). The Social Security Administration (“SSA”) denied his application initially on
June 15, 2010, and upon reconsideration on October 20, 2010. Id. Plaintiff then
requested a hearing before an Administrative Law Judge (the “ALJ”) on November 1,
2010. Id. The hearing was held on October 28, 2011, in Jacksonville, Florida. Id. The
ALJ found Plaintiff not disabled on January 27, 2012. (Tr. 77). Subsequently, Plaintiff
The parties consented to the exercise of jurisdiction by a United States Magistrate
Judge. (Doc. 18).
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requested a review by the Appeals Council, which was denied on January 28, 2013.
(Tr. 5-11). Therefore, having exhausted all administrative remedies, Plaintiff timely filed
his Complaint (Doc. 1) on February 14, 2013, seeking judicial review of the ALJ’s final
decision under 42 U.S.C. § 405(g).
II.
NATURE OF DISABILITY CLAIM
A.
Basis of Claimed Disability
Plaintiff claims to be disabled since November 6, 2006, due to a neck fusion,
Hepatitis C, left knee surgery, and degenerative disc disease. (Tr. 259).
B.
Summary of Evidence Before the ALJ
Plaintiff was forty-nine years old at the time the ALJ rendered his opinion. (Tr.
88). Plaintiff completed school through the tenth grade and received a general
equivalency diploma. Id. Plaintiff had past relevant work as a plumber, pipe fitter,
operating engineer, dump truck driver, and tractor trailer driver. (Tr. 94-97, 103-04, 109,
261-62, 274-77).
On November 6, 2006, Plaintiff suffered a neck injury and a right shoulder injury
when a co-worker put him in a headlock. (Tr. 93-94, 364). On November 27, 2006,
Plaintiff underwent an MRI of his right shoulder and his cervical spine. (Tr. 355-58). The
MRI of Plaintiff’s shoulder revealed some isolated atrophy in the muscle around the right
shoulder and a “probable labral tear of the superior labrum.” Id. The MRI of Plaintiff’s
cervical spine indicated cervical spondylosis with “spinal stenosis most pronounced at
the C6-7 and to a lesser degree C5-6.” (Tr. 358). The MRI also revealed “probable
compression of an existing right C7 nerve root due to a right paracentral disc at the C6-
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7 level,” a “small left paracentral disc protrusion at the C3-4 level,” and “multilevel left
sided neuroforaminal narrowing.” Id.
On December 15, 2006, Plaintiff was evaluated by Dr. Kirby L. Turnage, who
noted that Plaintiff was experiencing “fairly intense pain” in his cervical spine. (Tr. 364).
Plaintiff’s shoulder injury was less severe and only caused “minimal” symptoms. (Tr.
365).
On January 26, 2007, Plaintiff was evaluated by Dr. Robert P. Jensen who
performed a nerve conduction study. (Tr. 376-79). Dr. Jensen found Plaintiff suffered
from right C6-C7 radiculopathy, which was “fairly acute and significant in the setting of
chronic cervical spondylosis.” (Tr. 379). Dr. Jensen opined Plaintiff needed a
neurosurgery referral as he was “very likely to need neck surgery.” Id. On March 29,
2007, Plaintiff underwent cervical fusion without complication by Dr. Cyril T. Sebastian.
(Tr. 412-13).
Plaintiff was seen by Dr. Hung Tran for a consultative medical examination
because of complaints of headache and neck pain on September 3, 2008. (Tr. 461). Dr.
Tran noted Plaintiff had pain in his neck, but no limitations in motion. (Tr. 463).
Additionally, Plaintiff’s upper extremities were normal with no pain and he was able to lift
twenty pounds with both hands. Id. Plaintiff’s lower extremities were also normal with
no pain, he could sit normally bilaterally, and he could squat normally without pain. Id.
Dr. Tran diagnosed Plaintiff with “[o]ld operation on neck” and “headache.” Id.
On December 19, 2009, Plaintiff injured his left knee stepping down from a dump
truck at his job. (Tr. 518). Plaintiff went to the emergency room for treatment the same
day the knee injury occurred. (Tr. 472- 75). Plaintiff was treated and released with
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prescriptions for Lortab and Naprosyn. Id. On December 21, 2009, Plaintiff saw Dr. Ana
Maria Romero at Doctor’s Care for treatment of his knee injury. (Tr. 489-491). He was
diagnosed with a knee strain and released with restrictions of no carrying, climbing
ladders, pulling, squatting, or commercial driving. (Tr. 490-491).
On February 17, 2010, Plaintiff underwent left knee partial meniscectomy and
ACL reconstruction, which was performed by Dr. Steven M. Crenshaw. (Tr. 521-24).
Plaintiff had no complications. (Tr. 515, 523). On March 18, 2010, Plaintiff was seen
for a follow- up where he reported he was not taking any medications. (Tr. 513). On
June 1, 2010, Plaintiff was seen at Hillard Medical Center for headaches. (Tr. 548). It
was noted that it had been a long time since Plaintiff had been seen in their office. Id.
Plaintiff was diagnosed with cervicalgia and referred for pain management. (Tr. 54849).
On June 14, 2010, Plaintiff returned to Dr. Crenshaw for his four month check-up.
(Tr. 556). By this time, Plaintiff had completed physical therapy and was making the
transition to a home program. Id. Dr. Crenshaw recommended Plaintiff return to work
with the restrictions of avoiding climbing and kneeling. Id.
On July 28, 2010, Plaintiff was seen in the Emergency Room at Baptist Medical
Center by Dr. David Pietrasuik with complaints of headaches, neck pain and stiffness,
and twitching in the upper extremities. (Tr. 563-574). Plaintiff remarked that the degree
of pain at the time of the examination was minimal and Dr. Pietrasuik noted Plaintiff was
not in “acute distress.” (Tr. 564-65). A CT scan of Plaintiff’s head was normal. (Tr.
569). Plaintiff was discharged with one prescription for oxycodone without a refill, and
was told he needed to obtain pain management services. (Tr. 570).
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On October 19, 2010, Dr. Nicolas Bancks completed a physical residual
functional capacity assessment on Plaintiff. (Tr. 697- 704). Dr. Bancks opined: In
regard to exertional limitations, Plaintiff could occasionally lift and/or carry (including
upward pulling) twenty pounds, frequently lift and/or carry (including upward pulling) ten
pounds, stand and/or walk (with normal breaks) for a total of about six hours in an eight
hour work day, sit (with normal breaks) for a total of about six hours in an eight hour
workday, push and/or pull (including operation of hand and/or foot controls) on an
unlimited basis (other than shown for lift and/or carry). (Tr. 698). Dr. Bancks also
recommended Plaintiff avoid climbing and kneeling on his left knee. (Tr. 699). With
respect to postural limitations, Plaintiff could occasionally climb ramps, stairs, ladders,
rope, and scaffolds; balance; stoop; kneel; crouch; and crawl. (Tr. 699). For
manipulative limitations, Plaintiff was limited in reaching all directions (including
overhead) and unlimited in handling (gross manipulation), fingering (fine manipulation),
and feeling (skin receptors). (Tr. 700). Plaintiff had no visual or communicative
limitations. (Tr. 700, 701). Finally, in regard to environmental limitations, Plaintiff should
avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation; as
well as hazards (machinery, heights). (Tr. 701).
On October 18, 2010, Plaintiff began treatment at the University of Florida,
Division of Gastroenterology for his Hepatitis C. (Tr. 707). Plaintiff was treated by Dr.
Xiaoyu Li. (Tr. 708). Plaintiff reported that he was taking Lortab for headaches at the
time. (Tr. 707). Dr. Li concluded Plaintiff suffered from chronic hepatitis. (Tr. 708). Dr.
Li recommended Plaintiff reduce or stop his use of Lortab for migraines and use
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Excedrin instead. Id. Dr. Li concluded Plaintiff was healthy with no medical problems.
Id.
On January 20, 2011, Plaintiff was seen by Dr. Day for pain management. (Tr.
714). Dr. Day noted Plaintiff walked from the waiting room and was not in distress
during the evaluation. Id. Plaintiff was given a prescription for Hydrocodone and was
informed he needed to find a pain management clinic he could afford. (Tr. 714-15).
On March 1, 2011, Plaintiff was seen by Dr. Carlos Arce, a neurosurgeon, for
headaches, neck pain, arm pain, pain on both sides of his face, pain in his hands,
nausea, and vomiting. (Tr. 728). Plaintiff was taking Roxicet for these pain issues four
times per day. Id. Dr. Arce opined that Plaintiff’s symptoms were “somewhat out of
proportion” with the MRI findings and that surgery would not decrease Plaintiff’s pain.
(Tr. 729). Dr. Arce believed Plaintiff’s main problem was his high intake of pain
medication and recommended that Plaintiff go through a detoxification program to wean
himself off the pain medication and then come back for an evaluation to determine if he
would benefit from any surgical treatment. Id.
On May 19, 2011, Dr. Kenneth Powell, Plaintiff’s treating physician, submitted a
questionnaire form to the Social Security Administration entitled “Medical assessment of
ability to perform work related activities (physical).” (Tr. 740-43). In the questionnaire,
Dr. Powell opined: (1) Plaintiff could occasionally lift and/or carry twenty pounds and
could never lift and/or carry any weight over twenty pounds; (2) Plaintiff could sit for six
hours, stand for three hours, and walk for one hour; (3) Plaintiff could never climb, could
frequently balance, and could only occasionally stoop, crouch, kneel, and crawl; (4)
Plaintiff’s pain would frequently interfere with his attention and concentration; (5) Plaintiff
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would need a job that allowed him to shift positions at will; (6) Plaintiff would need to
take unscheduled breaks; and (7) Plaintiff would be expected to miss more than seven
days per month of work. Id.
On September 24, 2011, Plaintiff was treated in the emergency room for
complaints of back pain since running out of pain medication in August 2011. (Tr. 762).
Plaintiff was discharged with pain medications, but was told that he would not be
prescribed anymore. (Tr. 763).
C.
Summary of the ALJ’s Decision
A plaintiff is entitled to disability benefits when he is unable to engage in
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to either result in death or last for a continuous
period of not less than 12 months. 42 U.S.C. §§ 416(i), 423(d)(1)(A); 20 C.F.R.
§ 404.1505. The ALJ must follow five steps in evaluating a claim of disability. See 20
C.F.R. § 404.1520. First, if a claimant is working at a substantial gainful activity, he is
not disabled. 20 C.F.R. § 404.1520(b). Second, if a claimant does not have any
impairment or combination of impairments which significantly limit his physical or mental
ability to do basic work activities, then he does not have a severe impairment and is not
disabled. 20 C.F.R. § 404.1520(c). Third, if a claimant’s impairments meet or equal an
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is disabled. 20
C.F.R. § 404.1520(d). Fourth, if a claimant’s impairments do not prevent him from
doing past relevant work, he is not disabled. 20 C.F.R. § 404.1520(e). Fifth, if a
claimant’s impairments (considering his residual functional capacity, age, education,
and past work) prevent him from doing other work that exists in the national economy,
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then he is disabled. 20 C.F.R. § 404.1520(f). Plaintiff bears the burden of persuasion
through step four, while at step five, the burden shifts to the Commissioner. Bowen v.
Yuckert, 482 U.S. 137, 146, 107 S.Ct. 2287 n.5 (1987).
In the instant case, the ALJ determined Plaintiff met the insured status
requirements of the Social Security Act through December 31, 2013. (Tr. 68). At step
one, the ALJ found Plaintiff had engaged in substantial gainful activity since November
6, 2006, the alleged onset date. Id. At step two, the ALJ determined Plaintiff had the
following severe impairments: disorder of the spine, disorder of the left knee, and a
substance abuse disorder. Id. In addition, the ALJ noted Plaintiff’s Hepatitis C; yet, she
found it caused no more than a minimal limitation and was therefore, non-severe. Id.
At step three, the ALJ found Plaintiff did not have an impairment or combination
of impairments that met or medically equaled one of the listed impairments in 20 C.F.R.
404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525 and 404.1526). Id. At
step four, the ALJ found Plaintiff had the residual functional capacity (“RFC”) to perform
less than the full range of light or sedentary work activity as defined in 20 C.F.R
§ 404.1567(a) with the following exceptions:
a need to change positions between sitting and standing at
will; no more than occasional bilateral upper extremity
reaching overhead, climbing ramps and stairs, balancing,
stooping, kneeling, crouching, and crawling; no climbing of
ladders, ropes, or scaffolds; no concentrated exposure to
pulmonary irritants and hazards such as unprotected heights
or moving machinery; and no more than simple routine
repetitive tasks.
Id. Based on this RFC, the ALJ found Plaintiff incapable of performing his past relevant
work as an operating engineer. Id. However, at step five, considering the testimony of
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a vocational expert, the ALJ found other jobs existing in significant numbers in the
national economy which Plaintiff could perform. (Tr. 109-11).
III.
ANALYSIS
A.
The Standard of Review
The scope of this Court’s review is limited to determining whether the ALJ
applied the correct legal standards, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir.
1988), and whether the findings are supported by substantial evidence. Richardson v.
Perales, 402 U.S. 389, 390, 91 S.Ct. 1420 (1971). The Commissioner’s findings of fact
are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial
evidence is more than a scintilla – i.e., the evidence must do more than merely create a
suspicion of the existence of a fact, and must include such relevant evidence as a
reasonable person would accept as adequate to support the conclusion. Foote v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835,
838 (11th Cir. 1982) and Richardson, 402 U.S. at 401).
Where the Commissioner’s decision is supported by substantial evidence, the
district court will affirm, even if the reviewer would have reached a contrary result as
finder of fact, and even if the reviewer finds that the evidence preponderates against the
Commissioner’s decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991);
Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The district court must view
the evidence as a whole, taking into account evidence favorable as well as unfavorable
to the decision. Foote, 67 F.3d at 1560; accord Lowery v. Sullivan, 979 F.2d 835, 837
(11th Cir. 1992) (court must scrutinize the entire record to determine reasonableness of
factual findings).
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B.
Issue on Appeal
Plaintiff argues one issue on appeal: that the ALJ erred by not giving appropriate
weight to the opinions of Plaintiff’s treating physician, Dr. Kenneth Powell. (Doc. 21, p.
5). Specifically, Plaintiff takes the position that the ALJ failed to provide adequate
reasons for giving no significant weight to the opinions provided by Dr. Powell in a
questionnaire dated May 19, 2011. The Commissioner contends substantial evidence
supports the ALJ’s decision to assign minimal weight to Dr. Powell’s opinion. (Doc. 22,
p. 4). The Court will examine Plaintiff’s claims.
On May 19, 2011, Dr. Powell, Plaintiff’s treating physician for pain management,
completed a questionnaire provided by Plaintiff’s attorney. (Tr. 740-43). In the
questionnaire, Dr. Powell opined: (1) Plaintiff could occasionally lift and/or carry twenty
pounds and could never lift and/or carry any weight over twenty pounds; (2) Plaintiff
could sit for six hours, stand for three hours, and walk for one hour; (3) Plaintiff could
never climb, could frequently balance, and could only occasionally stoop, crouch, kneel,
and crawl; (4) Plaintiff’s pain would frequently interfere with his attention and
concentration; (5) Plaintiff would need a job that allowed him to shift positions at will; (6)
Plaintiff would need to take unscheduled breaks; and (7) Plaintiff would be expected to
miss more than seven days per month of work. Id. Plaintiff argues the ALJ did not
properly consider these opinions.
As an initial matter, the Court notes Plaintiff is correct that a treating physician’s
opinion will be granted controlling weight if it is consistent with other medical evidence
and is well-supported by acceptable clinical and diagnostic techniques. 20 C.F.R.
§ 404.1527(d)(2). Treating physicians are granted such deference because they are
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most able to provide a detailed, longitudinal picture of the patient’s medical status. Id.
Indeed, an ALJ is required to give a treating physician’s opinion “substantial or
considerable” weight unless “good cause” is shown to the contrary. Lewis v. Callahan,
125 F.3d 1436, 1140 (11th Cir. 1997); accord 20 C.F.R. § 404.1527(d)(2). The Eleventh
Circuit has found “good cause” to exist where: (1) the opinion was not bolstered by the
evidence; (2) the evidence supported a contrary finding; or (3) the opinion was
conclusory or inconsistent with the doctor’s own medical records. Wright v. Barnhart,
153 F.App’x 678, 684 (11th Cir. 2005). Further, if the ALJ decides to grant less than
substantial or considerable weight to a treating physician, he must clearly articulate the
reasons for doing so. MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986).
Failure to do so is reversible error. Id.
In the instant case, the ALJ referenced the opinions of Dr. Powell and set forth, in
detail, the limitations imposed by Dr. Powell. (Tr. 74, n. 2). Additionally, the ALJ
indicated the weight she gave Dr. Powell’s opinions as follows:
Although it has been carefully considered, no significant
weight is given to the opinion of Dr. Kenneth Powell, as it is
not corroborated by treatment record [sic], or supported by
the rational [sic].
(Tr. 74). While the Court finds the typos contained in the above passage somewhat
disconcerting, it is satisfied that the ALJ’s decision to discount Dr. Powell’s opinion is
sufficient to satisfy the good cause requirement.
First, the Court notes that many of the opinions contained in the May 19, 2011
questionnaire are consistent with the RFC established by the ALJ. For example, Dr.
Powell’s opinions that Plaintiff could occasionally lift and/or carry twenty pounds and
could never lift and/or carry any weight over twenty pounds are accounted for in the
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limitation to less than the full range of light or sedentary work. 2 The same is true of Dr.
Powell’s opinions that Plaintiff could sit for six hours, stand for three hours, and walk for
one hour and would need a job which allowed him to shift positions at will. Those
limitations are accounted for in the restriction to sedentary and/or light work with the
need to change positions from standing and sitting at will. Additionally, Dr. Powell’s
restrictions on Plaintiff’s abilities to balance, stoop, crouch, kneel, and crawl are
accounted for in the RFC where the ALJ limited Plaintiff no more than occasional
balancing, stooping, kneeling, crouching, and crawling.
As for the remaining limitations imposed by Dr. Powell, namely that: Plaintiff’s
pain would frequently interfere with his ability to concentrate, 3 Plaintiff could never
climb, 4 Plaintiff would need to take unscheduled breaks, and Plaintiff would be expected
to miss more than seven days per month of work, the undersigned finds the ALJ’s
decision that such are not corroborated by the medical records is sufficient to establish
good cause. Although Plaintiff argues Dr. Powell is in a better position than Dr.
Crenshaw to opine on Plaintiff’s head and neck pain, the Court observes no treatment
“Sedentary” work is defined as work which “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). “Light”
work is defined as work which “involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be
very little, a job is in this category when it requires a good deal of walking or standing, or when it
involves sitting most of the time with some pushing and pulling of arm or leg controls.” 20
C.F.R. § 404.1567(b).
3 It is arguable, as the Commissioner notes, that the ALJ also accepted Dr. Powell’s limitation on
Plaintiff’s ability to concentrate due to pain by limiting Plaintiff to work requiring no more than
simple, routine, repetitive tasks. However, in an abundance of caution, the undersigned will
also consider whether the ALJ’s decision to discount this limitation is supported by substantial
evidence.
4 The ALJ found Plaintiff should never climb ladders, ropes, or scaffolds, but could occasionally
climb ramps or stairs. (Tr. 69).
2
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records from Dr. Powell in the transcript. 5 Instead, the Court notes that the treatment
records for Plaintiff’s pain associated with his head and neck come from the following
providers: Dr. Hung V. Tran (Tr. 461-64), Dr. David Pietrasiuk (Tr. 563-570, 591-97),
Dr. Charles Day (Tr. 714- 715), and Dr. Carlos A. Arce (Tr. 728-29). A review of those
records, as well as the other records in the transcript, reveal no support for the extreme
limitations from Dr. Powell that Plaintiff would need to take unscheduled breaks and
would be expected to miss more than seven days per month of work, that Plaintiff’s pain
would frequently interfere with his attention and concentration, or that Plaintiff could
never climb. Indeed, Plaintiff does not point to any record evidence supporting these
limitations and the undersigned was unable to locate any.
As there is no evidence corroborating Dr. Powell’s opinions that Plaintiff would
need to take unscheduled breaks and would be expected to miss more than seven days
per month of work, that his pain would frequently interfere with his attention and
concentration, or that he could never climb, the Court finds the ALJ’s discounting of
these opinions to be supported by substantial evidence. See e.g. Deihl v. Comm’r Soc.
Sec., No. 1:07-cv-149, 2008 WL 408463, at *15 (W.D. Mich. Feb. 12, 2008) (not error
for the ALJ to discredit treating doctor’s opinion that plaintiff would be required to take 23 unscheduled breaks each day as doctor’s own records did not support same nor did
other medical records); Jacobs v. Astrue, No. 07-cv-681, 2008 WL 4601767, at *9-10
(W.D. Wis. June 20, 2008) (ALJ did not commit error in discrediting treating doctor’s
opinions, including opinion that plaintiff would need to take unscheduled breaks, as
As neither the ALJ nor Defendant argued Dr. Powell was not a treating physician, the Court
will accept Dr. Powell as such.
5
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being inconsistent with treatment notes even though ALJ did not point out specific
inconsistencies).
IV.
CONCLUSION
For the foregoing reasons, the undersigned finds the ALJ’s decision is supported
by substantial evidence. Accordingly, the Clerk of the Court is directed to enter
judgment AFFIRMING the Commissioner’s decision and, thereafter, to close the file.
DONE and ORDERED in Jacksonville, Florida this
Copies furnished to:
Counsel of Record
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3rd
day of January, 2014.
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