REYNOLDS v. ASTRUE
Filing
15
MEMORANDUM ORDER. The decision of the defendant Commissioner is VACATED and the matter is REMANDED to the Commissioner for further proceedings consistent with this order. Signed by MAGISTRATE JUDGE CHARLES J KAHN, JR on December 11, 2012. (kvg)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
JOHN HARVEY REYNOLDS,
Plaintiff,
v.
Case No. 5:12cv52/CJK
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
MEMORANDUM ORDER
This case is now before the court pursuant to 42 U.S.C. § 405(g), for review
of a final determination of the Commissioner of Social Security (“Commissioner”)
denying John Harvey Reynold’s application for Supplemental Security Income
benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-83. Mr.
Reynolds will be referred to by name, as claimant, or as plaintiff. The parties have
consented to Magistrate Judge jurisdiction, pursuant to 28 U.S.C. § 636(c), and
FEDERAL RULE OF CIVIL PROCEDURE 73, for all proceedings in this case, including
entry of final judgment. (Docs. 6, 7). Upon review of the record before this court,
I conclude that some of the findings of fact and determinations of the Administrative
Law Judge (ALJ), as modified by the Appeals Council, are not supported by
substantial evidence. The decision of the Commissioner, therefore, will be vacated
and remanded for further proceedings.
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Mr. Reynolds appeared at a hearing held on February 1, 2010. T. 14. The ALJ
issued an unfavorable decision, T. 11-191, finding that claimant had the residual
functional capacity to perform light work and therefore to perform his past relevant
work as a service station attendant. T. 18. Claimant appealed to the Social Security
Appeals Council, which granted review. T. 1-6. The ALJ and the Appeals Council
found that claimant suffers from the following severe impairments: right shoulder
impingement and hepatitis C. T. 5, 16. The Appeals Council concluded claimant had
no past relevant work, and could perform less than a full range of light work. T. 6.
Nonetheless, the Council found that a significant number of jobs that claimant could
perform existed in the national economy, dictating a finding that claimant had not
been under a disability from the date of his application through the date of the
hearing. T. 6. This decision became the Commissioner’s final decision from which
this appeal has been taken.
Challenging the Commissioner’s decision, plaintiff sets out three issues for
review. First, plaintiff avers that substantial evidence does not support the ALJ’s
assessment of residual functional capacity, because “the record is devoid of any RFC
assessments provided by a physician.” (Doc. 11, p. 8). Next, he argues the decision
must be reversed because the ALJ failed to explain the weight accorded to “many”
of the medical opinions of record. (Doc. 11, p. 8). Finally, plaintiff seeks reversal
of the ALJ’s finding that chronic obstructive pulmonary disease (COPD),
1
The administrative record, as filed by the Commissioner, consists of seven volumes (doc.
8-2 through 8-8), and has 336 consecutively numbered pages. References to the record will be by
“T.” for transcript, followed by the page number.
Case No.: 5:12cv52/CJK
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degenerative disc disease and scoliosis do not qualify as severe impairments under
the applicable standard. (Doc. 11, p. 8).
THE ALJ ORDER
The ALJ determined that plaintiff has two conditions that qualify as “severe
impairments.” These are right shoulder impingement and hepatitis C. T. 16. The
following portions of the ALJ decision are also pertinent to the issues raised in this
appeal:
“In addition to his severe impairments, the claimant has the medically
determinable impairment of chronic obstructive pulmonary disease
which is nonsevere in nature because it does not significantly limit the
claimant's ability to perform basic work activities.
3. The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
416.920(d), 416.925 and 416.926). In reaching the conclusion that no
physical listing is met or equaled, the undersigned reviewed the
appropriate listings and finds the claimant's condition does not approach
the severity to be determined disabled by meeting any listing in
Appendix I, Subpart P, Regulations No.4, either individually or in
combination. Additionally, no treating, examining, or non-examining
physician has noted any finding equivalent in severity to any listed
impairment.
4. After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform the full
range of light work as defined in 20 CFR 416.967(b). The claimant is
able to lift and/or carry 20 pounds occasionally and 10 pounds
frequently. He can sit, stand, and/or walk for six hours each in an eight
hour workday. Further, the claimant can occasionally perform all
postural movements.”
T. 16-17.
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The ALJ’s discussion of the relevant medical evidence is as follows:
“Wiregrass Medical Center treatment records covering the period July
17, 2006 through January 25, 2010, reflects the claimant's history of
complaints for chronic airway obstruction, shoulder injury and back
pain. The record documents multiple episodes of medical instruction for
the claimant to cease smoking. X-ray and bone scan studies of the
claimant's lumbar region, shoulder, knees, and ankles are unremarkable.
Great weight is given this medical evidence because the provider is a
treating source with a long term relationship with the claimant and
because the medical evidence is well supported by the record as a whole
(Exhibits 2F, 9F, and 11F).
A gastroenterology consultation report from Stavros A. Diavolitsis, MD,
dated October 13, 2008, reflects an essentially normal physical
examination. The claimant's liver enzymes were normal on examination.
Great weight is given this medical evidence because the source is an
examining physician whose evidence is well supported by the record as
a whole (Exhibit 6F).
Tallahassee Orthopedic Clinic treating records covering the period
November 4, 2006 through October 27, 2008, describe treatment for a
right shoulder impingement and possible rotator cuff injury. As a course
of treatment, the claimant has received a cortisone injection into the
subacromial space of his right shoulder. Great weight is given this
treating source medical evidence because it is consistent with and well
supported by the record as a whole.” (Exhibit 7F).
T. 18. This order will make more specific reference to the medical record, as
appropriate.
The ALJ’s order also notes certain matters raised in Mr. Reynold’s testimony.
Claimant’s back pain radiates to his leg. He says he needs shoulder surgery, and has
been waiting a year for the procedure. T. 18. Claimant tires easily due to his chronic
obstructive pulmonary disease (“COPD”). T. 18. As a result he lays down most of
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the day. T. 18. He does not take medication for COPD or hepatitis C. T. 18. In
terms of activities of daily living, the order observes that claimant watches over his
elderly parents. T. 18. The ALJ adjudged claimant’s subjective complaints to be less
than credible. T. 18.
In his application, claimant said his ability to work was limited by hepatitis, his
right shoulder, and “heart.” T. 156. He attributed his limited ability to “pain in my
liver.” T. 156. At the administrative hearing, however, claimant’s lawyer mentioned
other conditions, including scoliosis and back pain radiating into the legs. T. 27. The
lawyer also mentioned “fatigue,” which he attributed to the hepatitis. T. 27. In
testimony, claimant mentioned “this new thing,” apparently referring to abdominal
pain. T. 33, 37.
Claimant also discussed his activities and limitations. He washes clothes for
the family, tries to keep his fiance’s house clean, does dishes, folds clothes and
towels, and cuts the grass “every now and then.” T. 41-42. After mentioning the
grass, claimant said “that’s been several years ago.” T. 42. He can’t fish, because of
the shoulder pain. T. 43. He said the number one reason he couldn’t work, as of the
date of the hearing, was his abdominal pain. T. 46-47. He also has back pain,
without numbness. T. 48-49. He is waiting for shoulder surgery. T. 51.
Plaintiff has had chronic obstructive pulmonary disease for quite a few years.
T. 53. He takes no medication for hepatitis or for his breathing problems. T. 52-53.
Recent bone scans showed nothing wrong. T. 52. He becomes short of breath after
he climbs a flight of stairs, but he can do that. T. 54.
Mr. Reynold’s criminal history includes “about” fifteen arrests. T. 60. He once
served four and a half years in state prison for some sort of driving charge. T. 60.
Case No.: 5:12cv52/CJK
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GENERAL LAW APPLICABLE TO DISABILITY CLAIMS
The Social Security Act defines a disability as an “inability to engage in 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 12 months.” 42 U.S.C. §
423(d)(1)(A). To qualify as a disability, the physical or mental impairment must be
so severe that the plaintiff is not only unable to do her previous work, “but cannot,
considering [her] age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A).
Pursuant to 20 C.F.R. § 404.1520(a)-(g), the Commissioner analyzes a
disability claim in five steps:
1.
If the claimant is performing substantial gainful activity, she is not
disabled.
2.
If the claimant is not performing substantial gainful activity, her
impairments must be severe before she can be found disabled.
3.
If the claimant is not performing substantial gainful activity and she has
severe impairments that have lasted or are expected to last for a continuous period of
at least twelve months, and if her impairments meet or medically equal the criteria of
any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is
presumed disabled without further inquiry.
4.
If the claimant’s impairments do not prevent her from doing her past
relevant work, she is not disabled.
5.
Even if the claimant’s impairments prevent her from performing her past
relevant work, if other work exists in significant numbers in the national economy
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that accommodates her residual functional capacity and vocational factors, she is not
disabled.
Claimant bears the burden of establishing a severe impairment that keeps him
from performing her past work. Chester v. Bowen, 792 F.2d 129, 131 (11th Cir.
1986). The Eleventh Circuit has explained the operation of step five. See Doughty
v. Apfel, 245 F.3d 1274, 1278 n.2 (11th Cir. 2001) (“In practice, the burden
temporarily shifts at step five to the Commissioner. The Commissioner must produce
evidence that there is other work available in significant numbers in the national
economy that the claimant has the capacity to perform. In order to be considered
disabled, the claimant must then prove that he is unable to perform the jobs that the
Commissioner lists. The temporary shifting of the burden to the Commissioner was
initiated by the courts, and is not specifically provided for in the statutes or
regulations. See Brown v. Apfel, 192 F.3d 492, 498 (5th Cir. 1999) (quoting Walker
v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987) (‘The shifting of the burden of proof is
not statutory, but is a long-standing judicial gloss on the Social Security Act’)).”).
Step five (or step four in cases where the ALJ decides a claimant can perform
her past work) is where the rubber meets the road. At that point, the ALJ formulates
the all-important residual functional capacity (RFC). Even where one or more severe
impairments are established, the claimant must show that she cannot perform work
within that residual functional capacity. The ALJ establishes residual functional
capacity, utilizing the impairments identified at step two, by interpretation of (1) the
medical evidence, and (2) the claimant’s subjective complaints (generally complaints
of pain). Residual functional capacity is then used by the ALJ to make the ultimate
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vocational determination required by step five.2 “[R]esidual functional capacity is the
most [claimant] can still do despite [claimant’s] limitations.”3 20 CFR § 404.1545(1).
Often both the medical evidence and the accuracy of a claimant’s subjective
complaints are subject to a degree of conflict, and that conflict leads, as in this case,
to the points raised on review by disappointed claimants.
ANALYSIS
Plaintiff first maintains the ALJ's RFC was not supported by a treating or
examining physician. In his decision, the ALJ determined that Mr. Reynolds had the
RFC to perform:
2
“Before we go from step three to step four, we assess your residual functional capacity.
(See paragraph (e) of this section.) We use this residual functional capacity assessment at both step
four and step five when we evaluate your claim at these steps.” 20 C.F.R. § 404.1520(a)(4).
3
In addition to this rather terse definition of residual functional capacity, the Regulations
describe how the Commissioner makes the assessment:
(3) Evidence we use to assess your residual functional capacity. We
will assess your residual functional capacity based on all of the
relevant medical and other evidence. In general, you are responsible
for providing the evidence we will use to make a finding about your
residual functional capacity. (See § 404.1512(c).) However, before
we make a determination that you are not disabled, we are responsible
for developing your complete medical history, including arranging for
a consultative examination(s) if necessary, and making every
reasonable effort to help you get medical reports from your own
medical sources. (See §§ 404.1512(d) through (f).) We will consider
any statements about what you can still do that have been provided by
medical sources, whether or not they are based on formal medical
examinations. (See § 404.1513.) We will also consider descriptions
and observations of your limitations from your impairment(s),
including limitations that result from your symptoms, such as pain,
provided by you, your family, neighbors, friends, or other persons.
(See paragraph (e) of this section and § 404.1529.)[.]
20 C.F.R. § 404.1545(a)(3).
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light work as defined in 20 CFR 416.967(b). The claimant is able to lift
and/or carry 20 pounds occasionally and ten pounds frequently. He can
sit, stand, and/or walk for six hours each in an eight hour workday.
Further, the claimant can occasionally perform all postural movements.
T. 17.
This finding should not stand, says plaintiff, because the record does not
contain an assessment of RFC completed by a physician. Plaintiff argues that the
only RFC assessment in this record was done by Maurice Miller, a Single Decision
Maker. T. 283-290. Plaintiff maintains that in the face of no substantial evidence of
RFC, “the ALJ simply formulated his own opinion regarding Mr. Reynold’s
limitations.” (Doc. 11, p. 10). According to the Commissioner, however, the ALJ
fully evaluated the evidence, as well as claimant’s testimony, before determining
RFC. (Doc. 14, p. 10). Because I find that plaintiff is correct in this contention, the
decision must be reversed.
Claimant cites two cases in support of his argument concerning lack of proper
basis for the RFC. In Coleman v. Barnhard, the district court reversed a finding of
RFC to perform medium work. 264 F. Supp. 2d 1007, 1010 (S. D. Ala. 2003). The
court in that case found it unclear, in the absence of a functional capacities
assessment, how the ALJ determined the medium work RFC. Id. Claimant also cites
Thomason v. Barnhard, 344 F. Supp. 2d 1326 (N.D. Ala. 2004), for the proposition
he advances. In that case the court did note the absence of any formal assessment of
plaintiff’s RFC. Id. at 1329. In a rather stark assessment of the order before it, the
Thomason court found “no evidence plaintiff can perform medium work.” Id. (bold
in original).
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As the Commissioner notes here, an ALJ has the duty to formulate RFC based
on all the relevant credible evidence of record. “The residual functional capacity is
an assessment, based upon all of the relevant evidence, of a claimant's remaining
ability to do work despite his impairments.”
Lewis v. Callahan, 125 F.3d 1436,
1440 (11th Cir. 1997). The Commissioner does not, however, note his own
regulation concerning RFC. See supra note 3. This regulation acknowledges:
However, before we make a determination that you are not disabled, we
are responsible for developing your complete medical history, including
arranging for a consultative examination(s) if necessary, and making
every reasonable effort to help you get medical reports from your own
medical sources.
20 C.F.R. § 404.1545(a)(3).
As to the shoulder condition, this record is replete with documentation of
plaintiff’s complaints. T. 239-282, 317-325, 334-336. Certainly, these records are
not conclusive as to the limitations imposed by the shoulder issue. Nevertheless,
plaintiff was prescribed opiate pain medication. T. 320. He was told to rest and
avoid straining the shoulder. T. 321. The reports note a history of torn rotator cuff.
T. 322. Although not directly addressing limitation, one note finds the shoulder
“tender with abduction.” T. 325. The extent of orthopedic treatment for the shoulder
is unclear, although the ALJ mentioned the period from November 2006, until
October 2008. A report from Tallahassee Orthopedic Clinic dated October 27, 2008,
says Mr. Reynolds is “currently under our treatment for right shoulder impingement
and possible rotator cuff tear.” T. 312. That this report is brief and inconclusive,
does not make it unimportant. Even were I to conclude that plaintiff overstates the
need for a formal medical assessment of RFC, I would still find that the medical
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evidence as to the shoulder suggests limitations not accounted for by the ALJ.
Moreover, the RFC formulation in this case, although mentioning the shoulder, makes
no accommodation for that condition, perhaps because the record is incomplete. T.
18.
Claimant’s activities of daily living do not change the result. He appears to be
doing what he can to be of assistance to his family. Without some assessment of his
capacities, however, the testimony exists in something of a vacuum. Moreover, the
ALJ did not specifically refer to the activities (other than some previous limited work
as a welder and that claimant “watches over” his parents), and I cannot tell what role,
if any, this testimony played. RFC, therefore, is not supported by substantial
evidence.
Reversal on the first point makes unnecessary lengthy consideration of the
other points. Some further discussion is appropriate, however, because this does
appear to be a case where the Commissioner should have sought further medical
consultation as to some conditions. Some attention is also required as to plaintiff’s
claim of multiple severe impairments, beyond those discussed by the ALJ. The court
will not address the claim that the ALJ failed to explain the weight he accorded to a
number of medical opinions, because I have concluded that further development of
the medical record must occur.
The court turns first to the question of development of the medical record.
The Social Security disability benefits process is inquisitorial rather than adversarial,
Sims v. Apfel, 530 U.S. 103, 110-111 (2000), Crawford & Co. v. Apfel, 235 F.3d 1298
(11th Cir. 2000), and is informal. Richardson v. Perales, 402 U.S. 389, 400-401
(1971); Kendrick v. Shalala, 998 F.2d 455, 456 (7th Cir. 1993); 20 C.F.R. §
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404.900(b). With informality comes a duty to develop a complete record as is done
by European magistrates. Kendrick, 998 F.2d at 456. It is well established in this
Circuit that the ALJ has an affirmative duty to develop a full and fair record. Brown
v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995); Lucas v. Sullivan, 918 F.2d 1567, 1573
(11th Cir. 1990); Smith v. Bowen, 792 F.2d 1547, 1551 (11th Cir. 1986); Cowart v.
Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). The duty to develop the record exists
even though, as here, the plaintiff is represented by a lawyer or paralegal. Brown, 44
F.3d at 934 (citing Clark v. Schweiker, 652 F.2d 399, 404 (5th Cir. 1981)); Smith, 792
F.2d at 1551 (citing Cowart, 662 F.2d at 735). This duty requires that the ALJ
“scrupulously and conscientiously probe into, inquire of, and explore for all the
relevant facts,” be “especially diligent in ensuring that favorable as well as
unfavorable facts and circumstances are elicited,” Cowart, 662 F.2d at 735 (citations
omitted), and “investigate the facts and develop the arguments both for and against
granting benefits.” Crawford & Co., 235 F.3d at 1304.
That does not mean, however, that the ALJ must search to the last document
to find every possible piece of relevant evidence. Rather, he must have sufficient
evidence to decide the case. Where the ALJ does have sufficient information to
decide the case, he can do so. See Graham v. Apfel, 129 F.3d 1420, 1423 (11th Cir.
1997) (holding that where the record is complete and adequate to a decision, no
showing of prejudice is made). These rules do not change the fundamental directive
that “[t]he claimant has the burden of proving he [or she] is disabled, and is therefore
responsible for producing evidence in support of the claim.” Ellison v. Barnhart, 355
F.3d 1272, 1276 (11th Cir. 2003); 20 C.F.R. § 416.912(a), (c).
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As to the question of development of the record, plaintiff relies upon the
portion of 20 C.F.R. § 404.1545(a)(3) quoted above. See supra p. 10. Plaintiff notes
that, despite the ALJ’s conclusion that plaintiff’s statements concerning his symptoms
are not credible, the order cites to no medical evidence in support of the severity of
the limitations he claims. Plaintiff also relies upon 20 C.F.R § 404.1529(b)4 to argue
that the Commissioner had a duty to further develop the record in this case. I agree
with plaintiff that one cannot really draw reliable conclusions concerning the shoulder
condition, as the record now stands. As noted above, RFC as regards this condition
is not supported by substantial evidence. This comment should not be read to suggest
that the condition is necessarily disabling.
The record simply lacks medical
substantiation of limitations related to the shoulder, and this problem must be
remedied on remand.
As to the hepatitis, the ALJ also found the condition severe. Based upon the
present record, the ALJ did not err in failing to develop further evidence as to that
condition. Examination by a specialist in October 2008, notes few if any issues with
plaintiff’s medical systems. T. 310. Testing revealed normal liver enzymes. T. 310.
The physician’s chart does not suggest limitations, but, instead, speaks to prevention
and transmission of hepatitis. As to this condition, the record was not incomplete,
and no prejudice is shown regarding insufficient development. See Graham, 129
F.3d at 1423.
4
“We will develop evidence regarding the possibility of a medically determinable mental
impairment when we have information to suggest that such an impairment exists, and you allege pain
or other symptoms but the medical signs and laboratory findings do not substantiate any physical
impairment(s) capable of producing the pain or other symptoms.” 20 C.F.R § 404.1529(b).
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Also, the ALJ accepted COPD as a medically determinable impairment “which
is nonsevere.” The ALJ later noted evidence of records from Wiregrass Medical
Center, documenting the history of complaints of COPD. The issue was not further
developed, however, with the ALJ’s only comment being “[the] record documents
multiple episodes of medical instruction for the claimant to cease smoking.” T. 18.
Although an accurate comment, the observation does not speak to the severity of the
condition, nor does it amplify the earlier statement by the ALJ that the condition is
not severe. T. 16. Here, the medical record does not make clear whether plaintiff’s
complaints of fatigue are related to pulmonary obstruction. Because the available
records suggest the condition is chronic, that issue should be further developed.
The ALJ also did not err with regard to plaintiff’s present claim that his
degenerative disc disease and scoliosis should have been regarded as severe. Plaintiff
relies upon the “slight abnormality” rule to argue that these conditions should have
been accepted as severe.5 Plaintiff’s argument is not persuasive. Although noting
complaints of back pain, plaintiff has not identified the source of his claim of severe
degenerative disc disease. He may, perhaps, rely upon a lumbar spine X-ray to
support his complaints of back pain. T. 335. This study, however, notes that “disc
spaces are preserved and pedicles are intact.” The report finds a slight curvature to
the left, apparently attributable to “slight levoscoliosis,” but characterizes the exam
5
As applied, the step two severity determination is a threshold inquiry used to screen out
“trivial” claims, meaning an impairment is not severe “only if it is a slight abnormality which has
such a minimal effect on the individual that it would not be expected to interfere with the individual's
ability to work, irrespective of age, education, or work experience.” Brady v. Heckler, 724 F.2d 914,
920 (11th Cir. 1984); see also Bowen v. Yuckert, 482 U.S. 137, 145 n.5 (1987); Stratton v. Bowen,
827 F.2d 1447, 1453 (11th Cir. 1987); McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986).
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as otherwise unremarkable. T. 335. As to the allegations of back problems, plaintiff
did not carry his burden to suggest, much less to demonstrate, a severe impairment.
In sum, the ALJ’s discussion of RFC as to the right shoulder is not supported
by substantial evidence. The record must be further developed as to those conditions
identified in this order. No error is shown with regard to the ALJ’s treatment of
hepatitis and the alleged back condition.
ACCORDINGLY, it is ORDERED:
The decision of the defendant Commissioner is VACATED and the matter is
REMANDED to the Commissioner for further proceedings consistent with this order.
At Pensacola, Florida, this 11th day of December, 2012.
/s/
Charles J. Kahn, Jr.
CHARLES J. KAHN, JR.
UNITED STATES MAGISTRATE JUDGE
Case No.: 5:12cv52/CJK
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