Owens v. Commissioner of Social Security
OPINION AND ORDER reversing and remanding the decision of the Commissioner. The Clerk of Court is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the file. Signed by Magistrate Judge Douglas N. Frazier on 5/12/2015. (brh)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
DARRELL LEE OWENS,
Case No: 8:14-cv-2261-T-DNF
COMMISSIONER OF SOCIAL
OPINION AND ORDER
This cause is before the Court on Plaintiff, Darrell Lee Owens’ Complaint (Doc. 1) filed
on September 11, 2014. Plaintiff, Darrell Lee Owens seeks judicial review of the final decision
of the Commissioner of the Social Security Administration (“SSA”) denying his claim for a period
of disability, disability insurance benefits, and supplemental security income. 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 in support of their positions. For the reasons
set out herein, the decision of the Commissioner is REVERSED AND REMANDED pursuant to
§205(g) of the Social Security Act, 42 U.S.C. §405(g).
I. Social Security Act Eligibility, the ALJ Decision, and Standard of Review
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), 1382(a)(3)(A); 20 C.F.R. §§404.1505, 416.905. 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),
1382(a)(3); 20 C.F.R. §§404.1505 - 404.1511, 416.905 - 416.911. 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, n.5 (1987).
B. Procedural History
On May 5, 2011, filed an application for disability, disability insurance benefits and
supplemental security income asserting a disability onset date of April 1, 2010. (Tr. p. 80-81,
177). Plaintiff’s applications were denied initially on June 24, 2011, and on reconsideration on
August 8, 2011. (Tr. p. 80-83). A hearing was held before Administrative Law Judge B.T. Amos
on January 22, 2013. (Tr. p. 36-51). The ALJ issued an unfavorable decision on February 7, 2013.
(Tr. p. 17-30). On July 10, 2014, the Appeals Council denied Plaintiff’s request for review. (Tr.
p. 1-3). Plaintiff filed a Complaint (Doc. 1) in the United States District Court on September 11,
2014. This case is ripe for review. The parties consented to proceed before a United States
Magistrate Judge for all proceedings. (See, Doc. 14).
C. Summary of the ALJ’s Decision
An ALJ must follow a five-step sequential evaluation process to determine if a claimant
has proven that he is disabled. Packer v. Commissioner of Social Security, 542 F. App’x 890, 891
(11th Cir. 2013) 1(citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). An ALJ must
determine whether the claimant (1) is performing substantial gainful activity; (2) has a severe
impairment; (3) has a severe impairment that meets or equals an impairment specifically listed in
1 Unpublished opinions may be cited as persuasive on a particular point. The Court does not rely on
unpublished opinions as precedent. Citation to unpublished opinions on or after January 1, 2007 is expressly
permitted under Rule 31.1, Fed. R. Ap. P. Unpublished opinions may be cited as persuasive authority pursuant to
the Eleventh Circuit Rules. 11th Cir. R. 36-2.
20 C.F.R. Part 404, Subpart P, Appendix 1; (4) can perform his past relevant work; and (5) can
perform other work of the sort found in the national economy. Phillips v. Barnhart, 357 F.3d 1232,
1237-40 (11th Cir. 2004). The claimant has the burden of proof through step four and then the
burden shifts to the Commissioner at step five. Hines-Sharp v. Commissioner of Soc. Sec., 511
F. App’x 913, 915 n.2 (11th Cir. 2013).
The ALJ determined that Plaintiff met the Social Security Act’s insured status requirements
through June 30, 2012. (Tr. p. 19). At step one of the sequential evaluation, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since April 1, 2010, the alleged onset date.
(Tr. p. 19). At step two, the ALJ found that the Plaintiff suffered from the following severe
impairments: bipolar disorder, history of attention deficit disorder (ADD), restless leg syndrome
(RLS), and mild acute right lumbosacral radiculopathy (20 C.F.R. §§ 404.1520(c) and 416.920(c)).
(Tr. p. 19). At step three, the ALJ determined 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. p. 24). At step 4, the ALJ determined that the
Plaintiff has the residual functional capacity (“RFC”) to perform light work, except that he is
limited to simple, routine, repetitive tasks; would perform best in a low social demand setting;
must avoid concentrated exposure to extreme cold, extreme heat, vibrations, and work hazards;
can only occasionally climb ladders, ropes and scaffolds; can frequently climb ramps and stairs;
and, can frequently stoop, kneel, and crouch. (Tr. p. 22). The ALJ decided that Plaintiff is not
capable of performing his past relevant work as a sales associate, bartender or restaurant worker.
(Tr. p. 27-28). The ALJ found that considering Plaintiff’s age, education, work experience, and
residual functional capacity, there are jobs in significant numbers in the national economy which
Plaintiff is able to perform. (Tr. p. 28-29). The ALJ determined that Plaintiff has not been under
a disability from April 1, 2010 through the date of the decision. (Tr. p. 30).
D. Standard of Review
The scope of this Court’s review is limited to determining whether the ALJ applied the
correct legal standard, 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
(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).
Plaintiff raises two issues on appeal. As stated by Plaintiff, they are:
The ALJ failed to include the severe impairments of Borderline IQ and Fetal Alcohol
Syndrome and take these impairments into consideration in his RFC determination;
2) The ALJ failed to obtain vocational expert testimony as was required due to the
presence of non-exertional impairments.
A. Whether the ALJ erred in failing to include Borderline IQ and Fetal Alcohol
Syndrome as severe impairments.
Plaintiff argues that the ALJ erred in failing to include Plaintiff’s Borderline Intellectual
Functioning and his Fetal Alcohol Syndrome in the ALJ’s findings of severe impairments. Plaintiff
asserts that Dr. Rosenblatt found Plaintiff to be functioning in the Borderline range of intelligence,
and Plaintiff’s educational records support this finding. Dr. Rosenblatt and Dr. Mardo confirmed
a diagnosis of Fetal Alcohol Syndrome and found that Plaintiff was limited in his ability to
maintain stable employment due to this finding.
The Commissioner asserts that even if the ALJ failed to list Borderline Intellectual
Functioning and Fetal Alcohol Syndrome as severe impairments at step two of the sequential
evaluation, the ALJ did consider these impairments in combination with all of Plaintiff’s
impairments and therefore even if the ALJ erred, it was a harmless error. The Commissioner argues
that the ALJ specifically discussed Plaintiff’s Fetal Alcohol Syndrome during his discussion of
Veronica Mardo, M.D.’s records where she found that the Fetal Alcohol Syndrome was likely to
cause Plaintiff’s ADD and mixed bipolar disorder, and the ALJ found these impairments to be
severe. The Commissioner claims that the ALJ did consider Plaintiff’s reports of limited
intelligence including his IQ score. Further, the Commissioner contends that the state agency
medical experts Barbara Lewis, Ph.D. and Eric Wiener, Ph.D. support the ALJ’s finding that
Plaintiff is able to perform single, routine, repetitive tasks despite his mental impairments.
At step two of the sequential evaluation, the ALJ found that Plaintiff had the following
severe impairments: bipolar disorder, history of attention deficit disorder (ADD), restless leg
syndrome (RLS), and mild acute right lumbosacral radiculopathy. (Tr. p. 19). The ALJ discussed
the issue of Fetal Alcohol Syndrome in one portion of his Decision in his review of Dr. Mardo’s
records. (Tr. p. 26). The ALJ noted Dr. Mardo’s evaluation in September 2012 where she
diagnosed Plaintiff with ADD and mixed bipolar disorder “which [s]he concluded were likely the
result of prenatal alcohol exposure suggestive of fetal alcohol syndrome.” (Tr. p. 26). The ALJ
noted that Dr. Mardo’s diagnosis indicated that Plaintiff’s disorder was severe and that this severe
diagnosis was “‘very likely to limit [Plaintiff’s] ability to sustain employment.’” (Tr. p. 26). The
ALJ determined that Dr. Mardo’s diagnosis showed Plaintiff had serious functional limitations,
but that Dr. Mardo failed to address any specific loss of function and her opinions were simply
conclusive without support from the medical records. (Tr. p. 26). The ALJ gave Dr. Mardo’s
opinion little weight.
The ALJ mentioned that Plaintiff had an IQ score of 78 and had difficulty completing a
serial seven test but was able to complete a serial three test. (Tr. p. 21). The ALJ acknowledged
that Plaintiff’s testing showed that he had a limited fund of knowledge, but was able to spell the
word “world” backwards and forwards, was able to perform simple mathematical calculations,
could immediately recall three out of three items, and displayed an intact memory on multiple
occasions. (Tr. p. 21). The ALJ noted that Plaintiff testified that he dropped out of school after
the eighth grade, can barely read, and is able to do a little math. (Tr. p. 25). The ALJ found little
evidence in the record to support Plaintiff’s claims of severe mental impairments, again
mentioning that Plaintiff was able to spell the word “world” backwards and forwards and perform
simple mathematical calculations. (Tr. p. 25). The ALJ acknowledged again that Plaintiff had an
IQ score of 78, had difficulty completing serial sevens, but was able to complete serial threes, and
had a somewhat limited fund of knowledge. (Tr. p. 25). The ALJ discounted Dr. Rosenblatt’s
opinion that Plaintiff was unable to sustain employment finding that this issue is reserved to the
Commissioner, and does not follow the standards and definition of disability used by the Social
Security Administration because Dr. Rosenblatt failed to include Plaintiff’s residual abilities. (Tr.
p. 27). The ALJ also found that Plaintiff was limited to simple, routine, repetitive tasks and low
socially demanding settings. (Tr. p. 29).
Plaintiff included educational records for the ALJ’s Review. (Tr. p. 201-206). These
records indicate Plaintiff did poorly in school receiving some “D’s” in Second Grade and some
“F’s” in Fourth Grade. (Tr. p. 202-203).
On October 23, 2012, Plaintiff was evaluated by Arthur I. Rosenblatt, Ph.D., a licensed
psychologist. (Tr. p. 576-578). Dr. Rosenblatt administered the Ammons Quick Test, Finger
Tapping Test, Mini Mental Status Examination, and Trail Making test.
(Tr. p. 577). Dr.
Rosenblatt found that the results of the neuropsychological testing suggested that Plaintiff had
significant deficits for his age. (Tr. p. 577). Dr. Rosenblatt found Plaintiff to be functioning in
the Borderline range of Intelligence with an IQ score of 78, and the pattern “was suggestive of a
congenital global deficit.”
(Tr. p. 577). Dr. Rosenblatt found that the Mini Mental status
Examination results were suggestive of mild dementia or a general decrease in functioning. (Tr.
p. 577). Plaintiff could repeat three objects that he saw immediately, but after 2 minutes could only
name 1, and Plaintiff demonstrated difficulty with attention and calculation abilities. (Tr. p. 577).
Dr. Rosenblatt found Plaintiff’s psychomotor speed to be mildly impaired, he had difficulty in
problem solving, abstract reasoning and mental flexibility. (Tr. p. 577). Dr. Rosenblatt found
Plaintiff’s Digit-symbol production was below expectations and suggest of a global deficit or
progressive process, but found no indication of speech problems or aphasia. (Tr. p. 577). Dr.
Rosenblatt explained that an IQ of 78 from a Quick Test is in the Borderline range of intelligence,
and found that this IQ was most likely an over-estimate of Plaintiff’s actual IQ. (Tr. p. 577). Dr.
Rosenblatt concluded that Plaintiff’s testing results indicate a person with significant
neuropsychological deficits consistent with either Fetal Alcohol syndrome or pervasive
Developmental Disorder. (Tr. p. 577). Dr. Rosenblatt found that Plaintiff reported maternal
alcohol abuse, and he would suspect that Plaintiff suffers from Fetal Alcohol Syndrome. (Tr. p.
577). Dr. Rosenblatt concluded that “[i]t is likely that [Plaintiff] would be extremely limited in
his ability to maintain stable employment on either a full or part-time basis. In my clinical
opinion, he meets the criterion of being disabled.” (Tr. p. 577). Dr. Rosenblatt’s diagnostic
impression was Axis I, Fetal Alcohol Syndrome, Rule out Pervasive Developmental Disorder,
History of ADHD, History of Bipolar Disorder, Alcohol Abuse in sustained full remission,
Polysubstance Dependence in sustained full remission, and Axis II, Borderline Intellectual
Functioning with a GAF score of 40. (Tr. p. 577).
On December 6, 2012, Veronica Mardo, M.D., Board Certified in Clinical Genetics and
Family Medicine evaluated Plaintiff. (Tr. p. 590). She determined after review of Dr. Rosenblatt’s
evaluations that Plaintiff suffered from a global neuropsychological deficit which was of a
congenital origin with severe impairments in attention, concentration skills and deficits in memory
and reasoning. (Tr. p. 590). Dr. Mardo found that these deficits are common in people affected
with Fetal Alcohol Spectrum Disorders. (Tr. p. 590). Dr. Mardo noted that Plaintiff had been
diagnosed with ADD and Mixed Bipolar Disorder, and had a positive history of prenatal alcohol
exposure. (Tr. p. 590). Dr. Mardo reviewed baby pictures of Plaintiff which show facial features
suggesting Fetal Alcohol Syndrome, including a smooth philtrum and thin vermillion border. (Tr.
p. 590). Dr. Mardo concluded that based on Plaintiff’s facial dysmorphism present in childhood, a
positive history of prenatal alcohol exposure, and a global neurodevelopmental deficit with
behavioral features of attention deficit disorder, she believed that Plaintiff met the criteria for the
diagnosis of Fetal Alcohol Spectrum Disorder possible Fetal Alcohol Syndrome, at the severe end
of the spectrum. (Tr. p. 590). Dr. Mardo concluded that this impairment would be likely to limit
Plaintiff’s ability to sustain employment. (Tr. p. 590).
At issue here is step two of the ALJ’s disability determination, where severity is analyzed.
At this step, “[a]n impairment is not severe only if the abnormality is so slight and its effect so
minimal that it would clearly not be expected to interfere with the individual's ability to work,
irrespective of age, education or work experience.” McDaniel v. Bowen, 800 F.2d 1026, 1031
(11th Cir. 1986). A severe impairment must bring about at least more than a minimal reduction
in a claimant’s ability to work, and must last continuously for at least twelve months. See 20
C.F.R. §§ 404.1505(a). This inquiry “acts as a filter” so that insubstantial impairments will not
be given much weight. Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987). While the standard
for severity is low, the severity of an impairment “must be measured in terms of its effect upon
ability to work, and not simply in terms of deviation from purely medical standards of bodily
perfection or normality.” McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986).
According to the Eleventh Circuit, “[n]othing requires that the ALJ must identify, at step
two, all of the impairments that should be considered severe,” but only that the ALJ considered
the claimant’s impairments in combination, whether severe or not. Heatly v. Comm’r of Soc. Sec.,
382 F.App’x 823, 825 (11th Cir. 2010). If any impairment or combination of impairments
qualifies as “severe,” step two is satisfied and the claim advances to step three. Gray v. Comm’r
of Soc. Sec., 550 F. App’x 850, 852 (11th Cir. 2013) (citing Jamison v. Bowen, 814 F.2d 585,
588 (11th Cir. 1987)).
The ALJ found that Plaintiff had the following severe impairments: bipolar disorder,
history of attention deficit disorder (ADD), restless leg syndrome (RLS), and mild acute right
lumbosacral radiculopathy. An ALJ is not required to identify all impairments at step two as long
as the ALJ considers all of a claimant’s impairments whether severe or not in combination.
Therefore, the ALJ did not err in failing to identify Fetal Alcohol Syndrome and Borderline
Intellectual Functioning as severe impairments, as long as the ALJ considered Fetal Alcohol
Syndrome and Borderline Intellectual Functioning in combination with Plaintiff’s other
impairments whether severe or not.
The Commissioner argues that the at step three, the ALJ stated that he considered all of
Plaintiff’s impairments in combination in assessing Plaintiff’s RFC and this statement was
sufficient to show that the ALJ considered all of Plaintiff’s impairments in combination. A
statement by an ALJ that he considered the combined effects of a plaintiff’s impairments after
mentioning the impairments is sufficient to determine that the ALJ did consider the impairments
in combination. Wilson v. Barnhart, 284 F.3d 1219, 1224-1225 (11th Cir. 2002). In the instant
case, the ALJ stated that he considered the severity of Plaintiff’s mental impairments, singly and
in combination and found that the impairments did not meet the criteria of Listings 12.02 and
12.04. (Tr. p. 20). The ALJ also stated that he “considered all symptoms and the extent to which
these symptoms can reasonably be accepted as consistent with the objective medical evidence and
other evidence.” (Tr. p. 22). The Commissioner concludes that the ALJ considered all of
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Plaintiff’s impairments including Fetal Alcohol Syndrome and Borderline Intelligence in his RFC
The Commissioner also asserts that opinions of state agency medical experts Barbara
Lewis, Ph.D. and Eric Wiener, Ph.D. support the ALJ’s findings. These opinions were rendered
prior to Dr. Rosenblatt’s testing of Plaintiff for both Fetal Alcohol Syndrome and Borderline
Intelligence and prior to Dr. Mardo’s evaluation. (Tr. p. 76, 110, 576, 590).
The ALJ did discuss both Dr. Mardo and Dr. Rosenblatt’s evaluations, but found that
neither addressed any specific loss of function or residual abilities, but rather simply concluded
that Plaintiff was unable to work. The Court recognizes that an ALJ is under no duty to accept a
doctor’s finding that a plaintiff is unable to work because findings such as these are not medical
opinions and are reserved to the Commissioner.
See, 20 C.F.R. § 404.1527(d)(1)-(3) (“A
statement by a medical source that you are ‘disabled’ or ‘unable to work’ does not mean that we
will determine that you are disabled. … We will not give any special significance to the source of
an opinion on issues reserved to the Commissioner described in paragraph (d)(1)….”).
In the instant case, however, after a battery of tests, Dr. Rosenblatt found indications that
Plaintiff suffered from Fetal Alcohol Syndrome and diagnosed Plaintiff with Borderline
Intellectual Functioning. Dr. Rosenblatt found that Plaintiff was functioning in the Borderline
range for intelligence, had memory difficulties, had attention difficulties, had calculation
difficulties, had problem solving difficulties, had abstract reasoning difficulties, and had mental
flexibility difficulties. Dr. Rosenblatt found Plaintiff to have significant neuropsychological
deficits, and then concluded that Plaintiff would be extremely limited in his ability to maintain
stable employment. Even ignoring Dr. Rosenblatt’s conclusion that Plaintiff had limited abilities
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to work, Dr. Rosenblatt listed the many severe impairments that Plaintiff has, and how these
difficulties would affect Plaintiff’s ability to work.
Likewise, Dr. Mardo found that Plaintiff met the diagnosis for Fetal Alcohol Spectrum
Disorder, and did note that Plaintiff’s impairments would limit his ability to sustain employment.
Dr. Mardo also confirmed Dr. Rosenblatt’s evaluation which showed that Plaintiff had severe
impairments in attention, concentration skills and in memory and reasoning as is common with
people diagnosed with Fetal Alcohol Spectrum Disorders.
The ALJ failed to consider the severe impairments that affect Plaintiff’s ability to work
that both Dr. Rosenblatt and Dr. Mardo found which were consistent with people who are
affected with Fetal Alcohol Spectrum Disorders and Borderline Intellectual Functioning. The
ALJ discounted these doctors’ opinions because they both reached the conclusion that Plaintiff’s
impairments would limit his ability to sustain employment. The Court recognizes that the ALJ
included statements that he considered all of Plaintiff’s impairments in combination. However,
the ALJ failed to mention the severe limitations found by Dr. Rosenblatt and Dr. Mardo such as
Plaintiff’s impairments in attention, in concentration, in problem solving, in calculation, in
abstract reasoning, and in mental flexibility as well as other limitations. These doctors found
these limitations to be at least in part the result of Plaintiff’s Fetal Alcohol Syndrome and
Borderline Intellectual Functioning.
The Court cannot determine if the ALJ actually considered these limitations and the
others found by Dr. Rosenblatt and Dr. Mardo in combination with Plaintiff’s other impairments.
The Court is unable to conduct a meaningful review of the ALJ’s opinion concerning whether
the limitations found by Dr. Rosenblatt and Dr. Mardo were considered in combination with
Plaintiff’s other limitations to determine Plaintiff’s RFC. Robinson v. Astrue, 2009 WL 2386058,
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at *4 (M.D. Fla. Aug. 3, 2009). The Court determines that the Commissioner’s Decision was
not supported by substantial evidence at step two.
Whether a vocational expert is required
Plaintiff argues that the ALJ erred in failing to obtain a vocational expert due to Plaintiff’s
non-exertional limitations. Because the Court finds that the Commissioner must reevaluate the
medical evidence of record, the Court finds that it is premature to rule on Plaintiff’s argument as
to whether the ALJ erred in failing to obtain the testimony of a vocational expert.
Upon consideration of the submissions of the parties and the administrative record, the
Court finds that the decision of the ALJ is not supported by substantial evidence as to the issue of
whether the ALJ failed to include the severe impairments of Borderline IQ and Fetal Alcohol
Syndrome and take these impairments into consideration in his RFC determination.
IT IS HEREBY ORDERED:
1) The decision of the Commissioner is REVERSED and REMANDED pursuant to
sentence four of 42 U.S.C. § 405(g) for the Commissioner to reconsider all of the
medical records and the opinions of the physicians of record, consider all of Plaintiff’s
impairments whether severe or not in combination prior to determining Plaintiff’s
residual functional capacity, and to obtain the testimony of a vocational expert, if
2) The Clerk of Court is directed to enter judgment accordingly, terminate any pending
motions and deadlines, and close the file.
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3) If Plaintiff prevails in this case on remand, Plaintiff must comply with the Order (Doc.
1) entered on November 14, 2012, in Misc. Case No. 6:12-mc-124-Orl-22.
DONE and ORDERED in Fort Myers, Florida on May 12, 2015.
Copies furnished to:
Counsel of Record
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