Thompson v. Commissioner of Social Security
Filing
25
OPINION AND ORDER reversing and remanding the decision of the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk of Court is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the file. Signed by Magistrate Judge Mac R. McCoy on 9/6/2016. (brh)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DONNA JEAN THOMPSON,
Plaintiff,
v.
Case No: 8:15-cv-1240-T-MRM
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
Pending before the Court is Plaintiff Donna Jean Thompson’s Complaint (Doc. 1) filed
on May 21, 2015. Plaintiff seeks judicial review of the final decision of the Commissioner of the
Social Security Administration (“SSA”), denying her 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. at” 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 sentence four
of 42 U.S.C. § 405(g).
I. Social Security Act Eligibility, the ALJ Decision, and Standard of Review
A. Eligibility
The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment that can be expected to result in
death or that 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, 416.905.
The impairment must be severe, making the claimant unable to do her previous work, or any
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other substantial gainful activity that exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382c(a)(3)(B); 20 C.F.R. §§ 404.1505 - 404.1511, 416.905 - 416.911. Plaintiff bears the
burden of persuasion through step four, while the burden shifts to the Commissioner at step five.
Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
B. Procedural History
On April 13, 2012, Plaintiff filed an application for disability insurance benefits and for
supplemental security income asserting an onset date of October 18, 2008. (Tr. at 53, 72, 17487). Plaintiff’s applications were denied initially on May 9, 2012 and on reconsideration on July
10, 2012. (Tr. at 53-54, 72-73). A hearing was held before Administrative Law Judge (“ALJ”)
Robert Ballieu on November 21, 2013. (Tr. at 19-52). The ALJ issued an unfavorable decision
on February 20, 2014. (Tr. at 97-106). The ALJ found Plaintiff not to be under a disability from
October 18, 2008 through the date of the decision. (Tr. at 105-106).
On April 17, 2015, the Appeals Council denied Plaintiff’s request for review of the ALJ’s
decision. (Tr. at 1-6). Plaintiff filed a Complaint (Doc. 1) in the United States District Court on
May 21, 2015. This case is ripe for review. The parties consented to proceed before a United
States Magistrate Judge for all proceedings. (See Doc. 18).
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 she is disabled. Packer v. Comm’r of Social Security, 542 F. App’x 890, 891
(11th Cir. 2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). 1 An ALJ must
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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. App. P. Unpublished opinions may be
cited as persuasive authority pursuant to the Eleventh Circuit Rules. 11th Cir. R. 36-2.
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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
20 C.F.R. Part 404, Subpart P, Appendix 1; (4) can perform her 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. Comm’r of Soc. Sec., 511 F.
App’x 913, 915 n.2 (11th Cir. 2013).
The ALJ found that Plaintiff met the insured status requirements through December 31,
2013. (Tr. at 100). At step one of the sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since October 18, 2008, the alleged onset date. (Tr. at
100). At step two, the ALJ found that Plaintiff suffered from the following severe impairments:
scapular and patellar soft tissue derangement (adhesive capsulitis, rotator cuff and ligamentous
tear) with degenerative joint disease (DJD) and obesity. (Tr. at 100). 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 one 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. at 101). At step four, the ALJ determined that Plaintiff has the residual functional
capacity (“RFC”)
to perform light work as defined in 20 CFR [§§] 404.1567(b) and 416.967(b)
(lifting and/or carry 20 pounds occasionally and 10 pounds frequently, with the
right arm only as a support, standing and/or walking 6 hours in an 8-hour workday,
sitting 6 hours in an 8-hour workday, pushing and pulling) the weights given above,
[sic] except that she is limited to occasional climbing, crouching and crawling, but
never climbing ladders, ropes or scaffolds and occasionally reaching in all
directions on the right, but never overhead. This person must avoid concentrated
exposure to extreme cold, fumes, odors, dusts, gases, and poor ventilation, as well
as hazardous machinery and unprotected heights.
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(Tr. at 101). The ALJ determined that Plaintiff was capable of performing her past relevant work
as a restaurant hostess. (Tr. at 105). The ALJ concluded that Plaintiff was not under a disability
from October 18, 2008, through the date of the decision. (Tr. at 105).
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); 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 (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).
II. Analysis
On appeal, Plaintiff raises four issues. As stated by Plaintiff, they are:
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(1) There was not substantial evidence to support some of the ALJ’s findings.
(2) The ALJ’s credibility determination in this case was not proper.
(3) The ALJ did not properly evaluate the opinion evidence.
(4) The ALJ’s treatment of fibromyalgia in this case was improper and shows bias.
(Doc. 21 at 12-21). The Court will first address the issue of Plaintiff’s credibility.
A. Credibility
Plaintiff argues that the ALJ erred in failing to find Plaintiff’s allegations of pain not
credible. The Commissioner maintains that the ALJ fully complied with regulations for
evaluating pain and other symptoms in the decision and provided sufficient reasons supported by
substantial evidence to support his credibility findings.
To establish disability based on testimony of pain and other symptoms, a plaintiff must
satisfy two prongs of the following three-part test: “(1) evidence of an underlying medical
condition; and (2) either (a) objective medical evidence confirming the severity of the alleged
pain; or (b) that the objectively determined medical condition can reasonably be expected to give
rise to the claimed pain.” Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citing Holt
v. Sullivan, 921 F.3d 1221, 1223 (11th Cir. 1991)). After an ALJ has considered a plaintiff’s
complaints of pain, the ALJ may reject them as not credible, and that determination will be
reviewed to determine if it is based on substantial evidence. Moreno v. Astrue, 366 F. App’x 23,
28 (11th Cir. 2010) (citing Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992)). If an ALJ
discredits the subjective testimony of a plaintiff, then he must “articulate explicit and adequate
reasons for doing so. Failure to articulate the reasons for discrediting subjective testimony
requires, as a matter of law, that the testimony be accepted as true.” Wilson, 284 F.3d at 1225
(internal citations omitted). “A clearly articulated credibility finding with substantial supporting
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evidence in the record will not be disturbed by a reviewing court.” Foote v. Chater, 67 F.3d
1553, 1562 (11th Cir. 1995). The factors an ALJ must consider in evaluating a plaintiff’s
subjective symptoms are: “(1) the claimant’s daily activities; (2) the nature and intensity of pain
and other symptoms; (3) precipitating and aggravating factors; (4) effects of medications; (5)
treatment or measures taken by the claimant for relief of symptoms; and other factors concerning
functional limitations.” Moreno, 366 F. App’x at 28 (citing 20 C.F.R. § 404.1529(c)(3)).
Plaintiff argues that the ALJ erred when determining that Plaintiff was not credible due to
the following: (1) Plaintiff did not appear in gross mental/physical discomfort at the hearing; (2)
Plaintiff continued to take her medications despite the side effects; (3) no evidence of re-injury
from “those causes;” (4) Plaintiff acknowledged that she improved at times and acknowledged
her pain level improved with injections; (5) Plaintiff did not always follow medical advice, such
as failing to follow through on prescribed physical therapy and failing to use a prescribed sling;
(6) her treatment was erratic with gaps between 2013 and 2014 of 4 months; (7) Plaintiff failed
to receive other recent drastic treatment such as a morphine pump, transneuronal stimulation, or
on-going orthopedic/pain management; (8) Despite lung complaints, Plaintiff does not require
oxygen or a pulmonologist’s care; (9) Even if Plaintiff has financial problems, Plaintiff did not
seek more frequent emergency medical attention if in extreme distress; (10) Plaintiff ambulated
outside of her home, and drove; and (11) Plaintiff did not make any appreciable effort to try to
work. (Doc. 21, 16-17; Tr. at 103-04). The Commissioner responds that the ALJ supported each
of these reasons for not finding Plaintiff credible. For the reasons set forth below, the Court
finds all but one of these reasons not supported by substantial evidence in the record.
The Court finds that the ALJ did not err in his credibility determination in one respect.
Specifically, the ALJ found Plaintiff’s complaints not fully persuasive because Plaintiff did not
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appear “in gross mental/physical discomfort at the hearing, insofar as lay observation could
indicate.” (Tr. at 103). An ALJ is permitted to consider a claimant’s appearance and demeanor
at the hearing but “must not impose his observations in lieu of a consideration of the medical
evidence presented.” Norris v. Heckler, 760 F.2d 1154, 1158 (11th Cir. 1985). It is “not
inappropriate for the ALJ to observe and comment upon a claimant’s demeanor so long as the
observation is not offered as the sole basis for discounting the Plaintiff’s credibility.” Donnell v.
Astrue, No. 8:11-CV-2718-T-33TBM, 2012 WL 6106412, at *8 (M.D. Fla. Nov. 21, 2012),
report and recommendation adopted, No. 8:11-CV-2718-T-33TBM, 2012 WL 6106855 (M.D.
Fla. Dec. 10, 2012) (citations omitted). Moreover, a court often defers to an ALJ’s observation
and assessment of a claimant’s demeanor at the hearing. Norris, 760 F.2d at 1158. In the instant
case, the ALJ merely commented on Plaintiff’s demeanor at the hearing and considered
Plaintiff’s demeanor as one factor in determining Plaintiff’s credibility. Thus, the Court finds
that the ALJ did not err in commenting on Plaintiff’s demeanor at the hearing.
The ALJ’s remaining credibility determinations are not supported by the record. The
ALJ found that Plaintiff was not credible based upon Plaintiff “continu[ing] to use the
medications despite some claimed side effects.” (Tr. at 103). Plaintiff testified that she takes
many medications for her conditions, including the following: medication for fibromyalgia; an
inhaler for breathing; medication for blood pressure; hydrocodone and tramadol for shoulder and
knee pain; an EpiPen for allergies; medication for diabetes; medication for sleeping; and Flexeril
as a muscle relaxant. (Tr. at 37-39). Plaintiff testified that some of these medications cause the
following side effects: blurred vision, dizziness, drowsiness, and causing her to be in “la-la
land.” (Tr. at 38-39, 42-45). It is undisputed that these medications were prescribed for
Plaintiff. Neither the Commissioner nor the ALJ cites to any medical report that indicates that
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Plaintiff should not be taking these medications for her conditions. These medications appear to
be helping Plaintiff for her conditions. (See Tr. at 38, 42-44). Moreover, the Commissioner and
the ALJ do not cite to any medical records that indicate that there are other medications that
Plaintiff could take that would not render the same side effects. The Court finds that the ALJ
failed to provide substantial supporting evidence to discredit Plaintiff for taking prescribed
medications even though they cause her side effects.
The ALJ stated that Plaintiff’s complaints are “not fully persuasive” due to Plaintiff
continuing to take her medications despite the side effects and then states, “[t]here is no evidence
of actual re-injury from those causes.” (Tr. at 103). This statement is unclear. The record does
not reflect that Plaintiff was re-injured from the side effects of her medications. Nor does the
record reflect that Plaintiff was re-injured as to any of her conditions. The Court cannot
determine how this statement would undermine Plaintiff’s credibility. Thus, the Court finds that
this statement by the ALJ is not supported by substantial evidence to find Plaintiff not entirely
credible.
The ALJ also found Plaintiff’s complaints not “fully persuasive” because Plaintiff
acknowledged “against interest that she felt better at times, as of September 7, 2013, which she
did not emphasize at the hearing” and the ALJ found that Plaintiff “acknowledged betterment
with the injection.” (Tr. at 103). To support these statements, the ALJ cites to a follow-up visit
to Plaintiff’s treating physician, David U. Arango, M.D., on September 3, 2013. (Tr. at 103,
458). At this visit, Plaintiff complained of right-knee pain of 10/10. (Id. at 458). Plaintiff
acknowledged that a prior cortisone injection to her right knee on July 9, 2013 worked for a short
period of time, but the pain gradually returned to a 10/10. (Id.) Plaintiff was also previously
given a cortisone injection for her right shoulder, which did decrease her pain temporarily and
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allowed for more mobility, but as of this visit, her pain level was a 9/10, and Plaintiff was still
having problems with lifting and overhead activity. (Id.). Also of note, at a previous visit to Dr.
Arango on September 4, 2012, Plaintiff stated that she “felt a little improvement” after an
injection to her right shoulder. (Tr. at 478). Even though Plaintiff stated that she felt a slight
improvement as to pain and mobility, her pain level at this visit was a 9/10 and she was limited
with overhead activities. (Id.). A few medical records reflect that Plaintiff stated that she
showed some temporary improvement as to pain and mobility, especially after receiving
cortisone injections to her shoulder and knee. Nonetheless, even though Plaintiff told her
treating physicians that she had some temporary improvement as to her right shoulder and knee,
her pain level was consistently at least a 7/10, but for most visits, her pain level was a 9/10. (See
e.g., Tr. at 308, 311, 329, 332, 456, 458,460, 466, 470, 471, 473, 474, 477, 478 and 480).
The Court finds that the ALJ failed to reconcile Plaintiff’s testimony as to her temporary
slight improvements with her consistent complaints of extreme pain. Further, the ALJ afforded
her treating physician, Dr. Arango’s opinion substantial weight and Dr. Arango determined that
Plaintiff’s pain was reasonable given the medical findings. (Id. at 105, 485). 2 The ALJ also
noted that Plaintiff had a four-month gap in treatment from 2013 to 2014. Even though this gap
may exist, Plaintiff repeatedly went to her treating physicians’ appointments as evidenced
throughout the medical history in the record. The Court finds that the ALJ’s determination that
Plaintiff’s complaints were not fully persuasive based on Plaintiff’s acknowledgement of slight,
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The ALJ afforded Dr. Arango’s opinion substantial weight with the caveat that “not all of his
prohibitions are supported by objective examination limits, including the aforementioned
substantially better maneuverability and motor function after the interventions.” (Tr. at 105).
This caveat, however, did not discount Dr. Arango’s finding that Plaintiff’s medical conditions
supported the level of pain that Plaintiff described. (Id. at 485).
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temporary improvement and failure to seek treatment for a period of four months is not
supported by substantial evidence of record.
The ALJ also found certain inconsistencies that called into question Plaintiff’s claimed
intensity of her distress. (Tr. at 103). Specifically, the ALJ found Plaintiff was not always
compliant with medical advice, which raised doubts as to the alleged intensity of Plaintiff’s
symptoms. (Tr. at 103-04). The ALJ found that Plaintiff failed to follow through with her
prescribed physical therapy and failed to use the prescribed sling. (Id. at 103-04). Plaintiff
explained at the hearing that she waited to begin physical therapy because she did not read the
prescription and did not understand the prescription when Dr. Arango handed it to her. (Id. at
31-32). Plaintiff explained that she failed to use the sling after surgery because she thought she
could do without it. (Id. at 32-33). When she saw Dr. Arango for a follow-up visit, he explained
that Plaintiff needed to use the sling at all times. (Id. at 32-33). The ALJ appears to have failed
to take into account that Plaintiff has an eighth-grade education. (Id. at 23). Her testimony
shows that she did not understand Dr. Arango’s instruction to use the sling at all times after
surgery or his instruction to immediately begin physical therapy. (See Id. at 23). The ALJ fails
to explain why he found Plaintiff’s statements that she clearly misunderstood the doctor’s orders
not to be credible
The ALJ also raised doubts as to the alleged intensity of Plaintiff’s symptoms due to:
Plaintiff failing to receive “other recent drastic treatment for symptoms” including a morphine
pump, transneuronal stimulation, or on-going orthopedic/pain management; Plaintiff not
requiring oxygen or seeking a pulmonologist for lung complaints; and Plaintiff failing to seek
more frequent emergency medical attention. (Tr. at 104). Plaintiff saw her treating physicians,
Zaw Min, M.D. and Dr. Arango regularly and these doctors prescribed the medications Plaintiff
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needed to treat her symptoms. (Tr. at 300-56; 358-404; 447-54; 456-85; 498-500). The ALJ
failed to cite to medical records that indicate that Plaintiff’s symptoms were not credible based
on the amount of medical attention Plaintiff received from her treating physicians, including
receiving pain medication, an inhaler, and other prescriptions from these physicians. Substantial
evidence does not support the ALJ’s finding that absent more drastic treatments, Plaintiff’s
alleged intensity was not credible.
Further, the ALJ found contradictions in the record and discounted Plaintiff’s credibility
based on these alleged contradictions. The ALJ noted that Plaintiff ambulated in a limited way
outside of her home, drove, and did not make any appreciable effort to try to work. (Tr. at 104).
Plaintiff testified that she could walk down a hallway, and she walks to her sister’s RV, which is
next door to Plaintiff’s RV and located very close together. (Tr. at 35, 40). Plaintiff also
testified that if she does any driving, she shifts gears with her left hand. (Tr. at 39-40). The ALJ
failed to elicit testimony as to the frequency of Plaintiff’s driving or to show how this limited
ambulation or her limited driving contradicts Plaintiff’s allegations of her limitations.
The ALJ also found a contradiction in Plaintiff not making any appreciable effort to try to
work. Plaintiff testified that she injured her right shoulder on her last job in 2008 and was
terminated for being unable to work. (Tr. at 27-28). Plaintiff did not attempt to find work from
the date that she was injured in 2008. (Tr. at 23). The ALJ failed to explain any contradiction
between Plaintiff not making an appreciable effort to find work and Plaintiff’s statement that her
injury caused her to be unable to work. The ALJ’s statement that Plaintiff lacks motivation
because Plaintiff failed to try to work is not supported by substantial evidence.
To be clear, the ALJ based many of his credibility determinations on accurate factual
recitations from the record. However, the recited facts do not, in the Court’s view, support the
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ALJ’s ultimate credibility determination. As explained above, Plaintiff does not appear less than
credible by not attempting to find work after the date she became injured; by taking prescribed
medications with side effects; by misunderstanding the importance of medical advice; by not
having more drastic medical treatments; or by walking and driving in a limited manner. The
Court finds that the ALJ’s credibility determination is not supported by substantial evidence and
the ALJ erred in his credibility determination.
B. Other Issues
Plaintiff’s remaining issues involve Plaintiff’s RFC determination, the evaluation of
Plaintiff’s treating physicians’ opinions, and the evaluation of fibromyalgia. The issues of
Plaintiff’s RFC determination and the evaluation of Plaintiff’s treating physicians’ opinions are
tied to the issue of Plaintiff’s credibility. The ALJ mentions Plaintiff’s fibromyalgia twice in the
decision, first by acknowledging the medication Plaintiff was prescribed for her fibromyalgia
and second by stating that Plaintiff “claimed fibromyalgia, but this ill-defined ailment is not
corroborated in most reports, and remains a diagnosis of exclusion after confirmable illnesses
have been excluded.” (Tr. at 97, 102). Plaintiff’s diagnosis of fibromyalgia is mentioned
repeatedly throughout the medical records. (See e.g. Id. at 269, 304, 308-09, 312, 314, 317, 321,
323, 362, 451, 475, 480). The ALJ appears to find Plaintiff’s claim of fibromyalgia not to be
credible. Because the Court finds that upon remand, the ALJ must reevaluate Plaintiff’s
credibility and this credibility determination affects other elements of the ALJ’s decision, the
Court finds that any ruling on Plaintiff’s remaining issues would be premature at this time.
III. Conclusion
Upon consideration of the submissions of the parties and the administrative record, the
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Court finds that the decision of the ALJ is not supported by substantial evidence, and upon
remand, the Commissioner should reconsider Plaintiff’s credibility, reconsider Plaintiff’s RFC,
reevaluate the treating physicians’ opinions, and reevaluate Plaintiff’s claim of suffering from
fibromyalgia.
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 Plaintiff’s credibility
determination, reconsider Plaintiff’s RFC, reevaluate the treating physicians’ opinions, and
reevaluate Plaintiff’s claim of suffering from fibromyalgia.
2)
The Clerk of Court is directed to enter judgment accordingly, terminate any
pending motions and deadlines, and close the file.
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 September 6, 2016.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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