Bach v. Commissioner of Social Security
OPINION AND ORDER affirming the decision of the Commissioner. The Clerk of Court is directed to enter judgment consistent with this opinion, terminate all deadlines, and close the case. Signed by Magistrate Judge Douglas N. Frazier on 8/1/2022. (brh)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
STEVEN J. BACH,
Case No.: 6:20-cv-2406-DNF
COMMISSIONER OF SOCIAL
OPINION AND ORDER
Plaintiff Steven J. Bach seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“SSA”) denying his claim for
a period of disability and disability insurance benefits and for supplemental security
income benefits. The Commissioner filed the Transcript of the proceedings
(hereinafter referred to as “Tr.” followed by the appropriate page number), and the
parties filed legal memoranda setting forth their respective positions. For the reasons
set out herein, the decision of the Commissioner is AFFIRMED pursuant to §
205(g) of the Social Security Act, 42 U.S.C. § 405(g).
Social Security Act Eligibility, Standard of Review, Procedural
History, and the ALJ’s Decision
Social Security Eligibility
The law defines disability as the inability to do 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. §§ 416(i), 423(d)(1)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). The impairment must be
severe, making the claimant unable to do his previous work, or any other substantial
gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505–404.1511, 416.905–416.911.
Standard of Review
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 and is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion. Even if the evidence preponderated against the
Commissioner’s findings, we must affirm if the decision reached is supported by
substantial evidence.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th
Cir. 2004). In conducting this review, this Court may not reweigh the evidence or
substitute its judgment for that of the ALJ, but must consider the evidence as a whole,
taking into account evidence favorable as well as unfavorable to the decision.
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citation
omitted); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); Martin v. Sullivan,
894 F.2d 1520, 1529 (11th Cir. 1990). Unlike findings of fact, the Commissioner’s
conclusions of law are not presumed valid and are reviewed under a de novo
standard. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir.
1994); Maldonado v. Comm’r of Soc. Sec., No. 20-14331, 2021 WL 2838362, at *2
(11th Cir. July 8, 2021); Martin, 894 F.2d at 1529. “The [Commissioner’s] failure
to apply the correct law or to provide the reviewing court with sufficient reasoning
for determining that the proper legal analysis has been conducted mandates
reversal.” Keeton, 21 F.3d at 1066.
The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R.
§§ 404.1520, 416.920. At the first step, the ALJ must determine whether the claimant
§ 404.1520(a)(4)(i), (b); 20 C.F.R. § 416.920(a)(4)(i), (b). At step two, the ALJ must
determine whether the impairment or combination of impairments from which the
claimant allegedly suffers is “severe.” 20 C.F.R. § 404.1520(a)(4)(ii), (c); 20 C.F.R.
§ 416.920(a)(4)(ii), (c). At step three, the ALJ must decide whether the claimant’s
severe impairments meet or medically equal a listed impairment. 20 C.F.R.
§ 404.1520(a)(4)(iii), (d); 20 C.F.R. § 416.920(a)(4)(iii), (d). If the ALJ finds the
claimant’s severe impairments do not meet or medically equal a listed impairment,
then the ALJ must determine whether the claimant has the residual functional
capacity (“RFC”) to perform his past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv),
(e)–(f); 20 C.F.R. § 416.920(a)(4)(iv), (e)–(f).
If the claimant cannot perform his past relevant work, the ALJ must determine
at step five whether the claimant’s RFC permits him to perform other work that
exists in the national economy. 20 C.F.R. § 404.1520(a)(4)(v), (g); 20 C.F.R.
§ 416.920(a)(4)(v), (g). At the fifth step, there are two ways in which the ALJ may
establish whether the claimant is capable of performing other work available in the
national economy. The first is by applying the Medical Vocational Guidelines, and
the second is by the use of a vocational expert. Phillips v. Barnhart, 357 F.3d 1232,
1239-40 (11th Cir. 2004); Atha v. Comm’r, Soc. Sec. Admin., 616 F. App’x 931, 933
(11th Cir. 2015).
The claimant bears the burden of proof through step four. Atha, 616 F. App’x
at 933. If the claimant meets this burden, then the burden temporarily shifts to the
Commissioner to establish the fifth step. Id.; 20 C.F.R. § 404.1520(a)(4)(v), (g); 20
C.F.R. § 416.920(a)(4)(v), (g). If the Commissioner presents evidence of other work
that exists in significant numbers in the national economy that the claimant is able
to perform, only then does the burden shift back to the claimant to prove he is unable
to perform these jobs. Atha, 616 F. App’x at 993.
On May 10, 2018, Plaintiff filed an application for a period of disability and
disability insurance benefits and for supplemental security income, alleging
disability beginning November 1, 2016. (Tr. 75, 76, 249-64). The applications were
denied initially and on reconsideration. (Tr. 75, 76, 111, 112). Plaintiff requested a
hearing and on April 14, 2020, a hearing was held before Administrative Law Judge
John Loughlin (“ALJ”). (Tr. 40-66). On April 28, 2020, the ALJ entered a decision
finding Plaintiff not under a disability from November 1, 2016, through the date of
the decision. (Tr. 18-31).
Plaintiff requested review of the decision, but the Appeals Council denied
Plaintiff’s request on November 2, 2020. (Tr. 1-6). Plaintiff initiated the instant
action by Complaint (Doc. 1) filed on December 31, 2020, and the case is ripe for
review. The parties consented to proceed before a United States Magistrate Judge
for all proceedings. (Doc. 25).
Summary of ALJ’s Decision
In this matter, the ALJ found Plaintiff met the insured status requirements of
the Social Security Act through March 30, 2017. (Tr. 20). At step one of the
sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial
gainful activity since November 1, 2016, the alleged onset date. (Tr. 20). At step
two, the ALJ found that Plaintiff had the following severe impairments: “lumbar
spine ankylosis and spondylolisthesis, status-post laminectomy and fusion; anxiety
disorder; bipolar disorder; major depressive disorder; opioid use disorder; somatic
symptoms disorder.” (Tr. 20). At step three, the ALJ found that Plaintiff did not have
an impairment or combination of impairments that meets or medically equals the
severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and
416.926). (Tr. 21).
Before proceeding to step four, the ALJ found that Plaintiff had the following
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform light
work as defined in 20 [C.F.R. §§] 404.1567(b) and 416.967(b)
except he can stand and/or walk for up to 4 hours in an 8[-]hour
workday and can occasionally push, pull and/or operate foot
controls with both lower extremities. He can frequently
balance, can occasionally stoop, kneel, crouch, and crawl, can
occasionally climb stairs and ramps, can never climb ladders,
ropes and scaffolds, and can occasionally be exposed to
vibrations, unprotected heights and moving machinery parts.
He is able to understand and remember simple instructions,
make simple work[-]related decisions, carry out simple
instructions, can occasionally deal with changes in a routine
work setting, and can occasionally deal with coworkers and the
At step four, the ALJ found Plaintiff was unable to perform any past relevant
work. (Tr. 29). At step five, the ALJ relied on the testimony of a vocational expert
to find that considering Plaintiff’s age (30 years old on the alleged onset date),
education (at least high school), work experience, and RFC, there are jobs that
existed in significant numbers in the national economy that Plaintiff could perform.
(Tr. 29-30). Specifically, the ALJ found that Plaintiff could perform such
(1) silverware wrapper, DOT 318.687-018,1 light, unskilled, SVP 2
(2) mail sorter, DOT 209.687-026, light, unskilled, SVP 2
(3) folder, DOT 369.687-018, light, unskilled, SVP 2
(Tr. 30). The ALJ concluded that Plaintiff had not been under a disability from
November 1, 2016, through the date of the decision. (Tr. 31).
On appeal, Plaintiff raises one issue: whether the ALJ properly weighed the
medical opinions of record based on an adequate rationale and substantial evidence
when determining a residual functional capacity for light work. (Doc. 28, p. 13).
Specifically, Plaintiff argues that the RFC for light work conflicts with the opinions
of: (1) neurologist Gary Weiss, M.D.; (2) psychiatrist Amir Mirsajadi, M.D. and
David Flett, LMHC; (3) orthopedic physician assistant Damien Velez, PA-C; and
(4) emergency medicine specialist Mary Buggia, M.D. (Doc. 28, p. 14). In essence,
Plaintiff argues that the ALJ did not properly consider these opinions and adopt their
findings in the RFC.
DOT refers to the Dictionary of Occupational Titles.
The same legal standard applies to all of the medical sources’ opinions. 2 The
regulations for disability cases filed after March 27, 2017 – such as this one –
changed and an ALJ no longer defers or gives any specific evidentiary weight to a
medical opinion. 20 C.F.R. § 404.1520c(a), 20 C.F.R. § 416.920c(a). Thus, an ALJ
no longer uses the term “treating source” and does not defer or give specific
evidentiary weight, including controlling weight, to any medical opinion or prior
administrative medical finding. Torres v. Comm’r of Soc. Sec., No. 6:19-cv-1662ORL-PDB, 2020 WL 5810273, at *2 (M.D. Fla. Sept. 30, 2020) (citing 20 C.F.R.
Instead, an ALJ assesses the persuasiveness of a medical source’s opinions
given the following five factors, with the first two being the most important: (1)
At times, Plaintiff argues that the ALJ must state the particular weight of a given physician’s
opinion and the reasons therefor. (Doc. 28, p. 16). Recently, the Eleventh Circuit decided that the
new regulations, specifically 20 C.F.R. § 404.1520c, apply to cases filed after March 27, 2017.
See Harner v. Soc. Sec. Admin., Comm’r, No. 21-12148, 2022 WL 2298528, at *4 (11th Cir. June
Section 404.1520c falls within the express delegation to the Commissioner to
“adopt reasonable and proper rules and regulations to regulate and provide for the
nature and extent of the proofs and evidence and the method of taking and
furnishing the same” for adjudicating disability claims. See 42 U.S.C. § 405(a). And
although the Act instructs administrative law judges to “make every reasonable
effort to obtain from the individual’s treating physician ... all medical evidence ...
necessary” to make a proper disability determination, 42 U.S.C. § 423(d)(5)(B), the
Act does not specify how this evidence is to be weighed. Because section 404.152c
falls within the express delegation and is not “manifestly contrary to the statute,”
see Chevron, 467 U.S. at 844, 104 S. Ct. 2778, the regulation did not “exceed the
[Commissioner’s] statutory authority.” See Heckler, 461 U.S. at 466, 103 S. Ct.
Id. at *3. Thus, the Court will consider the medical source opinion under the rubric of the new
supportability; (2) consistency; (3) relationship with the claimant, including the
length, frequency, and purpose of the examining and any treatment relationship; (4)
specialization; and (5) other factors, such as the source’s familiarity with other
evidence concerning the claim, that tend to support or contradict the medical
opinion. 20 C.F.R. § 404.1520c(a)-(c); 20 C.F.R. § 404.920c(a)-(c). An ALJ may
but is not required to explain how he considers factors other than supportability and
consistency, unless two or more opinions are equally persuasive on the same issue.
20 C.F.R. § 404.1520c(b)(2); 20 C.F.R. § 416.920c(b)(2).
For supportability, the revised rules provide: “The more relevant the objective
medical evidence and supporting explanations presented by a medical source are to
support his or her medical opinion(s) or prior administrative medical finding(s), the
more persuasive the medical opinions or prior administrative medical finding(s) will
be.” 20 C.F.R. § 404.1520c(c)(1); 20 C.F.R. § 416.920c(c)(1). For consistency, the
revised rules provide: “The more consistent a medical opinion(s) or prior
administrative medical finding(s) is with the evidence from other medical sources
and nonmedical sources in the claim, the more persuasive the medical opinion(s) or
prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(2); 20
C.F.R. § 416.920c(c)(2).
The new regulations also differentiate between medical opinions and “other
medical evidence.” 20 C.F.R. § 404.1513(a)(2)-(3). “A medical opinion is a
statement from a medical source about what you can still do despite your
impairment(s) and whether you have one or more impairment-related limitations or
restrictions” in the abilities listed in paragraphs (a)(2)(i) through (iv). 20 C.F.R.
§ 404.1513(a)(2). “Other medical evidence is evidence from a medical source that
is not objective medical evidence or a medical opinion, including judgments about
the nature and severity of your impairments, your medical history, clinical findings,
diagnosis, treatment prescribed with response, or prognosis.” 20 C.F.R.
Gary M. Weiss, M.D.’s Opinion
On March 23, 2020, Dr. Weiss saw Plaintiff for a neurological evaluation. (Tr.
937-40). Less than a month later, Dr. Weiss completed a Physical Restrictions
Evaluation that included his opinions on Plaintiff’s limitations. (Tr. 942-45).
Plaintiff argues that the ALJ improperly considered Dr. Weiss’s opinion.
The ALJ summarized Dr. Weiss’s opinions as follows:
[Dr. Weiss] asserted the claimant can sit a total of 3 hours,
stand and/or walk for 2 hours, and must lay down 3 hours of
the workday due to lower back pain and radiculopathy. Dr.
Weiss rejected that a sit/stand option could enable the claimant
to work, asserting he must elevate his legs every 1-2 hours. He
further estimated the claimant would experience 25% off-task
time and 3 or more days of absenteeism per month. He limited
the claimant to lifting 5 pounds, occasionally balancing, never
engaging in any other postural activities, and never using foot
controls. He further opined the claimant cannot use his hands
on a sustained basis for an 8-hour workday and should not be
exposed to hazards or [ ]machinery.
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The ALJ found this opinion “lacks persuasive value.” (Tr. 28). The ALJ
reasoned that these findings are wholly inconsistent with the record and unsupported
by Dr. Weiss’s own examination of Plaintiff less than a month before the opinion.
(Tr. 27). In a neurological evaluation, Dr. Weiss found Plaintiff had a normal gait
and station, could toe and heel walk, and Romberg sign was negative. (Tr. 938). He
also found Plaintiff’s strength was normal and symmetric in all four extremities with
no evidence of atrophy or fasciculations. (Tr. 938). His reflexes and sensation were
normal. (Tr. 938). But Dr. Weiss did find some reduced range of motion in the
lumbar spine, spasms, and tenderness. (Tr. 939). As to mental status, Dr. Weiss
found Plaintiff alert, oriented, with no evidence of mood or thought disorder and
with memory and other cortical functions grossly intact. (Tr. 938).
In finding Dr. Weiss’s opinion inconsistent and unsupported, the ALJ noted
that contrary to Dr. Weiss’s limitation on the use of hands and lifting only 5 pounds,
Plaintiff typically presented with full upper extremity strength and normal cervical
spine functioning, including at Dr. Weiss’s own examination of Plaintiff. (Tr. 27,
657-58, 740). And while Dr. Weiss found Plaintiff would need to elevate his feet,
the only reference to elevated feet was a benign swelling condition that had been
present for years. (Tr. 27). Plaintiff argues that logically a patient with low back pain
would get relief from lying down or reclining, but this is supposition is not supported
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by Dr. Weiss’s evaluation of Plaintiff. (Doc. 28, p. 18-19, Tr. 937-40). The ALJ also
found no support in the record for Dr. Weiss’s determination of the amount of
absenteeism and off-task time for Plaintiff, as his treatment records and history of
hospitalization do not equate to missing 3 days of work per month and other mental
treatment records do not show debilitating concentration deficits. (Tr. 27-28).
Plaintiff argues that the prescription medication, Xanax, and Abilify cause fatigue,
dizziness, and drowsiness as found by a search of the internet. (Doc. 28, p. 19). But
other than Plaintiff’s subjective complaint of daytime fatigue, Dr. Weiss found
Plaintiff alert and oriented with no mention of fatigue during the evaluation. (Tr.
937-40). The ALJ listed multiple reasons to find Dr. Weiss’s opinion inconsistent
with his own evaluation and unsupported by other evidence of record. Substantial
evidence supports the ALJ’s decision to find Dr. Weiss’s opinion unpersuasive.
Opinions of Amir Mirsajadi, M.D. and David Flett, LMHC
Plaintiff saw Licensed Mental Health Counselor David Flett beginning in
February 2019 through May 2019 due to chronic back pain, depression, and anxiety.
(Tr. 804-805). Plaintiff treated with Dr. Mirsajadi from May 2019 through the
relevant time period. (Tr. 751-52, 906-907, 911-912, 917-918). LMHC Flett and Dr.
Mirsajadi jointly completed a Medical Opinion Re: Ability To Do Work-Related
Activities (Mental) on March 24, 2020. (Tr. 926-28).
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The ALJ summarized their opinions, which included finding Plaintiff
seriously limited in memory, maintaining work attendance and routine, and working
near others without distraction. (Tr. 29). The ALJ also noted that they found Plaintiff
lacking in ability to do skilled work, paying attention for two hours, maintaining
pace, dealing with work stress, responding to changes, and completing a workday
without psychological interruptions as well as be absent from work four days per
month. (Tr. 29).
The ALJ found Dr. Mirsajadi and LMHC Flett’s opinions to be unpersuasive
for these reasons:
These assessments are grossly inconsistent with the treatment
record, including recent treatment notes from Drs. Mirsajadi
and Flett themselves, which noted the claimant with clear
thought content, adequate insight and judgment, normal
memory, and improvement of anxiety and mood swings with
optimized medications (B28F; B30F; B33F). Likewise, the
medical evidence does not support such a prohibitive level of
absenteeism, as his treatment record and history of
hospitalization do not equate to missing 4 days of work per
month and do not establish debilitating concentration deficits
(B15F/3; B24F/2; B28F/2; B33F/2). Therefore, despite their
history of examining and treating the claimant, their opinions
(Tr. 29). Plaintiff argues that Dr. Mirsajadi and LMHC Flett noted Plaintiff
experienced panic attacks, had difficulty focusing and had poor memory. (Doc. 28,
p. 19). But LMHC Flett and Dr. Mirsajadi’s records show Plaintiff was oriented,
memory appeared intact, thought process logical, thought content focused and clear,
normal general appearance, and attitude and memory within normal limits. (Tr. 751,
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804, 907, 918). As the ALJ explained, the medical sources’ records are inconsistent
with their opinions and the medical records do not support the extreme limitations
found by them. Thus, substantial evidence supports the ALJ’s determination to find
the opinions of Dr. Mirsajadi and LMHC Flett unpersuasive.
Mary Buggia, M.D.’s Opinion
On February 7, 2019, Mary Buggia, M.D. performed a consultative
examination. (Tr. 736-42). The ALJ noted that she found essentially normal upper
extremity strength, diminished lower extremity strength, which was worse on the
left side, modestly diminished lower extremity reflexes, and reduced lumbar range
of motion. (Tr. 27). The ALJ noted that Dr. Buggia concluded that Plaintiff “could
not sit, stand, or walk at all in an 8-hour workday, and would be limited to lifting
and carry 5 pounds or less with either upper extremity.” (Tr. 27). The ALJ found:
The examination findings and overly restrictive limitations far
exceed other objective evidence in the record, which generally
showed normal or mildly diminished lower extremity strength,
better spinal mobility, and a normal unassisted gait not
indicative of such restrictions (B14F/5-6; B17F/5; B19F/7;
B25F/50; B38F/4). The claimant’s own statements and selfreported daily activities also suggest he is capable of a much
greater level of activity, including riding a bike or a scooter,
doing light chores, and sitting up to 90 minutes at a time
(Hearing Testimony; B5E/2-6). Furthermore, I note this
examination occurred shortly after the claimant’s spine
conditions were exacerbated by an infection of his paraspinal
muscles, with subsequent examinations showing significant
functional and symptomatic recovery (B17F/5; B18F/1;
B25F/49-51; B38F/4). Considering these gross inconsistencies
and the limited support of only a one-time examination, I find
Dr. Buggia’s opinion wholly unpersuasive.
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(Tr. 27). In sum, the ALJ found Dr. Buggia’s opinion inconsistent with some
findings in her evaluation and unsupported by the other objective evidence in the
record, and noted that Plaintiff’s condition was exacerbated by an infection at the
time of the evaluation that later showed significant functional and symptomatic
recovery. (Tr. 27). Substantial evidence supports the ALJ’s decision to find Dr.
Buggia’s opinion unpersuasive.
Damian L. Velez, PA-C
On January 18, 2018, Plaintiff saw PA Velez for low back pain. (Tr.
635-37). He determined that Plaintiff has moderate to mildly severe spinal stenosis
and the objective findings support Plaintiff not going to work. (Tr. 637). He found
Plaintiff unable to work and even sedentary work would be difficult, especially as to
concentration while he was taking narcotic medication. (Tr. 637). The ALJ
determined that PA Velez’s opinion that he is incapable of even sedentary work is
an issue reserved to the Commissioner “and such conclusory statements are regarded
as neither valuable nor persuasive on the issue of whether the claimant is disabled
for Social Security disability purposes.” (Tr. 28).
An opinion for a medical source must include what a plaintiff can still do
despite his impairments and whether he has one or more impairment-related
limitations or restrictions in the certain functional abilities. (Doc. 29, p. 18, citing 20
C.F.R. §§ 404.1513(a)(2), 416.913(a)(2)). PA Velez’s conclusion that Plaintiff is
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unable to work does not constitute a medical opinion under the new regulations. (Tr.
637). See Robinson v. Astrue, 365 F. App’x 993, 999 (11th Cir. 2010) (finding that
the RFC determination and ability to work is within the province of the ALJ, not of
doctors). Thus, substantial evidence supports the ALJ’s finding that PA Velez’s
opinion is unpersuasive.
While these medical sources’ opinions may have some consistency with each
other and indicate some limitations, the ALJ provided substantial evidence to find
each opinion unpersuasive. The Court may not decide the facts anew, reweigh the
evidence, or substitute its judgment for that of the Commissioner. Mitchell v.
Comm’r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014). While Plaintiff cites
some evidence that may support finding any or all of these opinions persuasive,
Plaintiff must do more than point to evidence in the record that supports his
allegations. Sims v. Comm’r of Soc. Sec., 706 F. App’x 595, 604 (11th Cir. 2017).
He must show the absence of substantial evidence supporting the ALJ’s conclusion.
Id. Here, when applying the correct legal standard, the ALJ listed many reasons to
support his decision in finding each of these medical sources’ opinions unpersuasive.
These reasons constitute substantial evidence in support of the ALJ’s determination
that these opinions are unpersuasive. Thus, the Court finds no error.
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For the reasons discussed above, the Court finds that the decision of the
Commissioner is supported by substantial evidence and the Commissioner applied
the correct legal standard. The decision of the Commissioner is AFFIRMED. The
Clerk of Court is directed to enter judgment consistent with this opinion, terminate
all deadlines, and close the case.
DONE and ORDERED in Fort Myers, Florida on August 1, 2022.
Copies furnished to:
Counsel of Record
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