Garza v. Colvin
MEMORANDUM OPINION that the decision of the Commissioner will be reversed and the case remanded to the Commissioner with instructions that benefits be awarded to the plf; ORDERING that, in accordance with Bergen v. Commr of Soc. Sec., 454 F.3d 1273 , 1278 fn. 2 (11th Cir. 2006), the plf shall have sixty (60) days after he receives notice of any amount of past due benefits awarded to seek attorney's fees under 42 U.S.C. § 406(b). See also Blitch v. Astrue, 261 Fed. Appx 241, 242 fn.1 (11th Cir. 2008).. Signed by Honorable Judge Charles S. Coody on 9/13/16. (djy, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
RAY ABRAHAM GARZA,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,1
CIVIL ACTION NO. 3:15cv175-CSC
MEMORANDUM OPINION and ORDER
On June 26, 2013, the plaintiff applied for disability insurance benefits pursuant to
Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., alleging that he was unable to
work because of a disability. His application was denied at the initial administrative level.
The plaintiff then requested and received a hearing before Administrative Law Judge
(“ALJ”) Walter Lassiter, Jr.. Following the hearing, the ALJ also denied the claim. The
Appeals Council rejected a subsequent request for review. The ALJ’s decision consequently
became the final decision of the Commissioner of Social Security (Commissioner).2 See
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is now before the court for
review pursuant to 42 U.S.C. §§ 405 (g) and 1383(c)(3). Pursuant to 28 U.S.C. § 636(c), the
Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No.
103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social
Security matters were transferred to the Commissioner of Social Security.
parties have consented to entry of final judgment by the United States Magistrate Judge.
Based on the court’s review of the record in this case and the briefs of the parties, the court
concludes that the decision of the Commissioner should be reversed and remanded to the
Commissioner for an award of benefits.
II. Standard of Review
Under 42 U.S.C. § 423(d)(1)(A) a person is entitled to disability benefits when the
person is unable 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 . . .
To make this determination3 the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.
(1) Is the claimant presently unemployed?
(2) Is the claimant’s impairment severe?
(3) Does the claimant’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the claimant unable to perform his or former occupation?
(5) Is the claimant unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of “not
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
A “physical or mental impairment” is one resulting from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory
The standard of review of the Commissioner’s decision is a limited one. This court
must find the Commissioner’s decision conclusive if it is supported by substantial evidence.
Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); 42 U.S.C. § 405(g). “Substantial
evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence
as a reasonable person would accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of
the record which supports the decision of the ALJ, but instead must view the record in its
entirety and take account of evidence which detracts from the evidence relied on by the ALJ.
Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner’s] . . . factual findings . . . No similar
presumption of validity attaches to the [Commissioner’s] . . . legal conclusions,
including determination of the proper standards to be applied in evaluating
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III. The Issues
A. Introduction. Garza was 31 years old on the date of onset. (R. 43). He has a
high school diploma and a college degree. (R. 43 & 57). Garza’s prior work experience
includes work as a helicopter pilot, medical-service technician, and basic infantryman.
(R.43). Following the administrative hearing, the ALJ concluded that Garza has severe
impairments of “post-traumatic stress disorder with comorbid major depressive disorder;
depressive disorder, not otherwise specified versus adjustment disorder with anxious mood;
and depressive disorder, not otherwise specified; and sleep apnea.” (R. 14). The ALJ further
concluded that Garza’s impairments or combination of impairments did not meet or
medically equal one of the listed impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1. (R. 2022). The ALJ found that Garza was unable to perform his past relevant work but concluded
has the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) except the claimant can frequently use his upper extremities for
reaching overhead, pushing and pulling. He has no additional limitation in the
use of his upper extremities. The claimant cannot climb ladders, ropes, poles
or scaffolds. The claimant can frequently climb ramps and stairs. He can
frequently balance, stoop, kneel and crouch. He cannot crawl. The claimant
can occasionally work while exposed to dusts, gases, odors and fumes. The
claimant cannot work in poorly ventilated areas. The claimant cannot perform
work activity at unprotected heights. The claimant cannot perform work
activity involving operating hazardous machinery. The claimant can
occasionally operate motorized vehicles. The claimant is unable to perform
work activities that require his response to rapid and/or frequent demands. The
claimant can respond appropriately to supervision as well as perform work
activity that requires only occasional supervision. The claimant can
occasionally interact with coworkers, so long as interaction is casual. The
claimant cannot perform work activity that requires interaction with the public.
Using the Medical-Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P., App. 2, as a
framework and relying on the testimony of a vocational expert, the ALJ concluded that there
were significant number of jobs in the national economy that the plaintiff could perform. (R.
44). Accordingly, the ALJ concluded that the plaintiff was not disabled. (Id.).
B. Plaintiff’s Claims. As stated by Garza, he presents three issues for the court’s
review are as follows:
The ALJ failed to properly evaluate the opinions from Plaintiff’s
The ALJ failed to properly evaluate the opinion from examining source,
The ALJ failed to given (sic) proper weight to the disability opinion of
the Veterans Administration.
(Pl’s Br. at 3-6).
This court’s ultimate inquiry is whether the Commissioner’s disability decision is
supported by the proper legal standards and by substantial evidence. See Bridges v. Bowen,
815 F.2d 622 (11th Cir. 1987). “Social Security proceedings are inquisitorial rather than
adversarial. It is the ALJ’s duty to investigate the facts and develop the arguments both for
and against granting benefits.” Sims v. Apfel, 530 U.S. 103, 110-111 (2000).
The SSA is perhaps the best example of an agency that is not based to a
significant extent on the judicial model of decisionmaking. It has replaced
normal adversary procedure with an investigatory model, where it is the duty
of the ALJ to investigate the facts and develop the arguments both for and
against granting benefits; review by the Appeals Council is similarly broad.
Id. The regulations also make the nature of the SSA proceedings quite clear.
They expressly provide that the SSA “conducts the administrative review
process in an informal, nonadversary manner.” 20 C.F.R. § 404.900(b).
Crawford & Co. v. Apfel, 235 F.3d 1298, 1304 (11th Cir. 2000).
An ALJ must also state, with sufficient specificity, the reasons for his decision
referencing the plaintiff’s impairments.
Any such decision by the Commissioner of Social Security which involves a
determination of disability and which is in whole or in part unfavorable to such
individual shall contain a statement of the case, in understandable language,
setting forth a discussion of the evidence, and stating the Commissioner’s
determination and the reason or reasons upon which it is based.
42 U.S.C. § 405(b)(1) (emphases added).
An ALJ is not free to simply ignore medical evidence, nor may he pick and choose
between the records selecting those portions which support his ultimate conclusion without
articulating specific, well supported reasons for crediting some evidence while discrediting
other evidence. Marbury v. Sullivan, 957 F.2d 837, 839-41 (11th Cir. 1992). The court
pretermits discussion of Garza’s specific arguments because the court concludes that the ALJ
erred as a matter of law, and, that this case is due to be remanded for an award of benefits.
The problem with the ALJ’s analysis can be succinctly stated. The ALJ’s level of
hostility towards Garza prevented the ALJ from being an impartial decisionmaker, and Garza
was prejudiced by the ALJ’s failure to provide him a fair, full and unbiased evaluation of
his claim. A claimant is entitled to a hearing that is both full and fair. Miles v. Chater, 84
F.3d 1397, 1400 (11th Cir. 1996); Jarrett v. Comm’r of Soc. Sec., 422 F. App’x 869, 874
(11th Cir. 2011). Garza is entitled to “an unbiased evaluation” of his claim by an impartial
decisionmaker. Miles, supra. “The right to trial by an impartial decisionmaker is a basic
requirement of due process.” Keith v. Massanari, 17 F. App’x 478, 481 (7th Cir. 2001). See
also Ventura v. Shalala, 55 F.3d 900, 902 (3rd Cir. 1995) (“Essential to a fair hearing is the
right to an unbiased judge.”). Because the ALJ plays a crucial role in the administrative
review process for disability claims, “[t]he impartiality of the ALJ is thus integral to the
integrity of the system.” Id., at 1401 citing Johnson v. Mississippi, 403 U.S. 212, 216 (1971).
Moreover, the regulations direct that “[a]n administrative law judge shall not conduct a
hearing if he or she is prejudiced or partial with respect to any party or has any interest in the
matter pending for decision.” 20 C.F.R. ¶ 404.940. See also Miles, 84 F.3d at 1400.
Although an administrative adjudicator is presumed to be unbiased, see
Schweiker v. McClure, 456 U.S. 188, 195, 102 S.Ct. 1665, 72 L.Ed.2d 1
(1982), this presumption can be rebutted by showing that the ALJ “displayed
deep-seated and unequivocal antagonism that would render a fair judgment
Keith, 17 F. App’x at 481 quoting Liteky v. United States, 510 U.S. 540, 556 (1994).
Garza suffers from PTSD as a result of a deployment to Afghanistan, and he uses a
service dog to assist him with coping. Despite extensive medical evidence, the ALJ opined
that he doubted that Garza even suffers from PTSD.
Quite candidly, the undersigned questions his need of the dog and even the
existence/severity of the claimant’s diagnosis of PTSD (see discussion below,
the specific cause of his PTSD is not at all clear).
The ALJ’s bias and hostility is apparent from his opinion and the colloquies that
occurred at the hearing. A review of the administrative hearing transcript reveals the
following interaction between the ALJ and the plaintiff.
How did you attend college?
I took a couple of classes, they were actual on Fort Rucker when I
enlisted and after that it was on-line courses.
And through which university?
Troy University, the majority of it.
With a B.S. in psychology?
And were you required to attend any classes in person?
I did for my last three classes. The Army – I came back from
deployment, I had three months to finish my degree or I would have
been thrown out of the Army. So I was released through the
completion program. I went to Troy University, finished up the three
courses I had left.
Troy main campus and Troy Dothan campus.
All right. And when did you complete those three classes?
It was December of 2011, Your Honor.
Unless I’m missing my math, you completed those in-person courses
after – at least one or two of them after you reported you became
So clearly at that time you were not homebound?
At that time, no.
So what happened between the time you completed the courses and the
time you became homebound that caused you suddenly to be able to
finish school, finish a Bachelor’s Degree in psychology, but then within
whatever period unable to leave the house without assistance?
To leave the house without assistance, well, everything just got worse,
Isn’t it kind of interesting that everything got worse after you
completed your Bachelor’s Degree in psychology? Isn’t that kind of
Not really, Your Honor, because while I was in school, the only reason
I graduated was because those professors understood what I was going
through with my diagnosis of PTSD.
What does that have to do with interacting on campus, interacting with
other students, getting to and from the campus?
Because I didn’t have to go to class.
That’s not what you told me a minute ago.
That I started out that way, yes, and then it continued through
November. But those last six weeks, I didn’t have to go to class.
Did you tell me that a moment ago?
No, Your Honor.
It’s awfully convenient now, isn’t it? Okay. . . .
Thereafter, the ALJ asked Garza about the consultative evaluation and his
Tell me why you think it is based on your education, why the consultant
that we sent you to see declined to confirm your PTSD?
That I don’t know, Your Honor. I do not know. I spoke to her for 45
minutes. We were interrupted. According to her, I have tattoos on my
knuckles, I don’t have a degree, I was never in combat. And why she
says that I don’t have PTSD, I’m not sure. We discussed the majority
of the time my family and home life, what it was like growing up for
me, and we briefly touched on Afghanistan.
And what happened in Afghanistan?
Essentially there are three traumas. A friend of mine, his Apache
helicopter was shot down.
Another guy that I was working medevac missions, I got to
know Corporal Waterwitz (phonetic) over three weeks. Two days after
I left where we were, Bala Morgab, I was on night shift and I got called
on a hero mission where we go and we pick up the fallen to get them
ready to come home. When I got there, the other marines, they
recognized me and they told me who – told me who it was and I had to
bring him home.
And the first one that occurred was a little boy that I watched die
in his father’s arms.
And none of these things stopped you from completing your degree in
psychology. What was your GPA like?
In his opinion, the ALJ relies solely on the consultative examiner’s report to conclude
that Garza was not a combat veteran and to discount the effects of these traumas. The ALJ’s
lack of sensitivity to and respect for the plaintiff’s military service in Afghanistan is apparent.
Though the claimant was stationed in a combat zone, it does not appear that
he was personally involved in combat (Exhibit 8F). There is no evidence that
the alleged events took place in his presence. The claimant did not know about
the corporal’s death until he went to pick up the bodies of fallen soldiers
(Testimony). In the case of the little boy’s death, the claimant had been
watching video feed taken by a drone, which showed a man planting a
landmine (IED). It appears that a white van drove over the landmine, killing
or injuring its occupants, including a child. The child later died at the hospital
(Exhibit 3F, pages 16, 22; 11F, page 174). These events are not what one
would consider extreme stressors. To the contrary, these events are what one
would expect to find in a war zone. In fact, these events are not significantly
different from those commonly experienced by civilians (i.e. death of friend or
child in a car accident). The undersigned notes here, that the claimant had
trained as a medic; and, prior to 2007, he had been a laboratory technician and
performed over fifty autopsies as part of his job (Exhibit 8F, page 4; Exhibit
11F, page 159). His extensive medical and military training would have
helped to desensitize these types of events. The undersigned notes, with
particularity, that Dr. King could not determine whether or not the claimant
had PTSD based on his reports and his presentation during her evaluation and
she clearly concluded with some limitation, the claimant is able to address his
own activities of daily living as well as some work activity (Exhibit 8F).
(R. 31) (emphasis added).
Not only was the ALJ’s reliance on Dr. King’s opinion erroneous, his comments about
the effects of traumatic events illustrate his antagonistic attitude towards the plaintiff as well
as a lack of understanding about living and working in a combat zone. Survival in a combat
zone requires constant vigilance. There is little or no respite from the stress that causes. The
ALJ’s attempt to diminish the effects of the three events described by Garza shows a callous
indifference to the impact on our veterans of an environment about which the ALJ obviously
has no understanding.
A showing of prejudice “at least requires a showing that the ALJ did not have all of
the relevant evidence before him, or that the ALJ did not consider all of the evidence in the
record in reaching his decision.” Kelley v. Heckler, 761 F.2d 1538, 1540 (11th Cir. 1991).
In this case, the ALJ did not consider all the evidence before him and demonstrated
antagonism towards the plaintiff, thereby prejudicing Garza.
In his initial application for disability benefits, Garza alleged that he was disabled due
to PTSD and Major Depressive Disorder. (R. 86). While in the United States Army, Garza
served as a Blackhawk Helicopter pilot, a medical lab technician, and a combat medic. (R.
98). Relying on Dr. King’s evaluation, the ALJ concluded that Garza was not involved in
combat and determined that he was “a liaison to NATO” while in Afghanistan.
The record does show that the claimant served one tour of duty in Afghanistan
from June 2010 to June 2011. His primary duties appear to have been
supervisory in nature. He was a liaison to NATO. His military occupation
speciality was in aircraft power plant repair. He was responsible for a battalion
of forty-five soldiers and ten helicopters. He lost none of his men (Exhibit
However, this information which came from Dr. King is only partially accurate and
the ALJ ignores other evidence in the record that demonstrates that Garza flew combat
missions while deployed. For example, on his work history, Garza stated that he was the
sole aviation liaison to NATO, working 22+ hrs/day for 90 days, planning joint
missions, assaults, tracking data, Personnel, and casualty reports in real-time,
all while constantly under the threat of Indirect/direct mortar fire, IED
explosions, sniper fire, enemy insurgent RPG, Anti-Aircraft, small arms, and
machine gun fire. For the remaining 10 months of my deployment, I flew
helicopters into hostile areas, under all weather conditions, during day or
night-times, always under direct threat from a determined Insurgent threat.
. . . When flying, I flew 8-12 hours at a time, without bathroom breaks or
rest, always carrying 125 lbs + of gear in an aircraft with no heat or a/c. . .
(R. 221, 232) (emphasis added)
Garza’s records are replete with references that he served as a Blackhawk helicopter
pilot in combat in Afghanistan. (R. 186, 198, 214, 215, 225, 228, 232, 283, 479, 525-26, 655
& 701). The record also reveals that Garza has been awarded the following medals and
decorations: Bronze Star, Air Medal, Army Commendation Medal, Valorous Unit Emblem,
Army Good Conduct Medal, National Defense Service Medal, Afghanistan Campaign Medal
- Campaign Star, Global War on Terrorism Medal, NCO Professional Development Ribbon,
Army Service Ribbon, Overseas Service Ribbon, and NATO Medal. (R. 282).
A review of Garza’s military medical records demonstrates that the ALJ is simply
wrong about many things. The ALJ failed to consider the progressive deterioration of
Garza’s mental health. Garza was stationed in Fort Hood, Texas in June 2010 when he was
cleared medically for deployment. (R. 820, 824-8269). He was deployed from June 2010
to June 2011 to Afghanistan. Prior to his deployment, he had no complaints of depression
or other PTSD symptoms. (R. 825, 828, 849, 856, 861, 865, 869, 881 & 892).
On October 11, 2011, Garza was referred by his flight surgeon to the Psychology
Clinic for an aeromedical psychological evaluation. (R. 814). Garza presented to the clinic
with deployment related combat stress reaction. (Id.)
SM (Service Member) complains since returning from deployment he has
experienced significant anhedonia, amotivation, and problems concentrating
on school. SM also reports irritable mood, impatient attitude around civilians,
hypervigilance, startle and social withdrawal. SM states that he would rather
be deployed and feels uncomfortable around people - which interferes with his
school work. SM states that he carries a firearm everywhere he goes and
sleeps with his firearm in order to feel safe. SM states that he has not sslept
(sic) more than 2-3 hours since the Ft. Hood shooting and has felt extremely
hyperviligant since the incident in 2009. SM is not currently flying. . . . SM
was educated on treatment options and will consider psychiatric medications
and has been referred to psychiatrist.
Garza reported “deployment related adjustmetn (sic) difficulties to sudden lifestyle
change - e.g. deployed to college student.” (R. 815). Garza was referred for a psychiatric
consultation and psychotherapy. (Id.)
Garza returned to the Psychology Clinic on October 18, 2011 for psychotherapy. At
that time, he reported sleeping better, doing better at school and being more focused.(R. 811).
Garza was “educated on adjustments expected when returning from a battle zone.” (Id.)
SM reports that he recognizes the extreme difference experienced when he left
his unit and started going to college. SM recognized the extreme need to
controll (sic) his environment that was normal in a combat zone but causes
relationship problems in garrison. SM recognizes the “let down” he
experienced from being in command to being a college student. SM continues
to educate himself on his adjustment. SM will f/u with Dr. Ferrell to consult
On October 25, 2011, Garza presented to the Primary Care Clinic at Fort Rucker to
secure a medical certificate. (R. 809). He was disqualified from flying due to depression and
generalized anxiety disorder. (Id.). A screening examination demonstrated that Garza was
positive for depression and PTSD. (Id.) Garza reported feeling “safe at home.” (R. 808,
On October 31, 2011, Dr. Wyatt, a licensed psychologist, opined that Garza was
suffering from Reaction to Chronic Stress. (R. 805). On November 1, 2011, psychiatrist
Madeline Ferrell evaluated Garza for combat-related stress at the request of Dr. Wyatt. (R.
803). Dr. Ferrell prescribed Zoloft for his core PTSD symptoms, Depakote for his anger and
irritability and Trazodone to help him sleep. (Id.).
Dr. Wyatt next saw Garza on November 9, 2011. (R. 802). At that time, Garza
reported “feeling in better mood since starting zoloft and trazodone/ambien.” (Id.). On
November 15, 2011, Garza saw Dr. Ferrell for a medication checkup. At that time, he was
doing better on Zoloft and Depakote. (R. 801).
On January 17, 2012, Garza participated in counseling with Dr. Wyatt. (R. 800). At
that time, Garza’s mood was improved and he was less irritable. Dr. Wyatt also introduced
Garza to Cognitive Behavior Therapy principles. (Id.). During counseling on February 7,
2012, Garza discussed cognitive processing therapy theories with Dr. Wyatt. (R. 799).
Garza also saw Dr. Ferrell for medication management. (R. 797).
On March 8, 2012, Garza presented to Dr. Ferrell for medication management.
(R.793). She reconciled his psychotropic medications with his other prescribed medications.
(Id.). On March 27, 2012, Garza participated in counseling with Dr. Wyatt. He continued
to work on cognitive behavioral therapy for anxiety and mood management. (R. 791).
On April 9, 2012, Garza presented to Dr. Ferrell. He was seeking to be restored to
flight status and had discontinued one of his medications. (R. 789). Dr. Ferrell diagnosed
Garza with Post-Traumatic Stress Disorder and adjusted his medications. (R.789-90). On
May 21, 2012, Garza had discontinued taking Trileptal and Prazosin and tolerated an increase
in the Zoloft dosage. (R.786). He was still waiting for a flight waiver. (Id.). Dr. Ferrell
noted that Garza was compliant with treatment. (Id.)
On June 25, 2012, Garza presented to Dr. Wyatt seeking a waiver to permit him to
return to flying. (R. 785). Dr. Wyatt noted that Dr. Ferrell had diagnosed Garza with PTSD,
and he changed his diagnosis to correspond to hers.4 (Id.). On July 12, 2012, Garza
underwent personality testing administered by Dr. Wyatt. (R. 774-75). Dr. Wyatt opined that
SM does not suffer a psychiatric disorder that currently will impair him from
performing aviation duties safely. Validity scores indicated that SM responded
in a forthright manner - no indication of over-reporting, under-reporting,
inattentive, inconsistent, or idiosyncratic responses on validity scales (PIM =
50). However on clinical scales and supplemental scales there was mild
suggestion that SM tended to view himself in an overly optimistic manner.
SM elevated MAN (T=77) and MAN-G (T=86) which is correlated with
narcissistic personality traits and optimistic attitudes. SM IS OBVIOUSLY
NOTE IN A MANIC STATE. Defensiveness index (T=76) and Cashel
Discriminant Function (T=75) were elevated suggesting Sm’s responses were
more similar to test subjects attempting to portray themselves in a positive
light than to normal test subjects.
Dr. Wyatt opined that Garza was not currently suffering from “a psychiatric disorder
that is incompatible with aviation duties” at that time. Dr. Wyatt opined that Garza could
safely execute aviation duties. (R.775). Nonetheless, Dr. Wyatt did not change Garza’s
diagnosis of PTSD.
On August 6, 2012, Garza was seen by Dr. Ferrell for a routine medication check. (R.
The ALJ makes much of the fact that Garza was initially diagnosed with “reaction to chronic
stress” and not with PTSD. He stated that Garza’s “diagnosis was changed to PTSD to comply with the new
Office of the Surgeon General (OTSG) guidelines” implying that Garza did not suffer from PTSD. (R. 32).
Dr. Wyatt, the licensed psychologist, noted in his treatment note that he changed his diagnosis to correspond
to psychiatrist Dr. Ferrell’s diagnosis of PTSD. (R. 785). However, there is no indication that Garza was
diagnosed by Dr. Ferrell with PTSD simply to meet guidelines. The ALJ’s inference is unfounded
762). At that time, Garza had “tapered and discontinued all psychotropic medications except
Zoloft (150 mg daily) for which he can receive a waiver.” (Id.). Garza informed Dr. Ferrell
that he was being stationed at Fort Campbell, Kentucky and he was pleased with the
assignment. (R. 762). Dr. Ferrell instructed Garza to “become established with Mental
Health at Fort Campbell.” (R.763).
On November 5, 2012, Garza presented to the Flight Medicine Clinic at Fort
Campbell, Kentucky for a flight physical. (R. 744-48). He was again seeking flight waivers.
(Id.) Garza was referred to Behavioral Health Clinic. (R. 742 & 747). On November 30,
2012, Garza underwent a psychiatric evaluation by psychiatrist Dr. Ashley Chatigny. (R.
723-25). Dr, Chatigny noted that Garza’s OQ455 result score was 65 and she noted that “a
score of 63 or more indicates symptoms of clinical significance.” (R. 724). She also noted
that his Symptom Distress and Social Role scores were high enough to indicate symptoms
of clinical significance. (Id.) Dr. Chatigny confirmed Garza’s diagnosis of PTSD and
altered his medications. She indicated that Garza would have to participate in psychotherapy
and be stable in order to return to flight status. (R.725).
On December 5, 2012, Garza was seen by Dr. Timothy Carbary, a licensed
Neuropsychologist/Aeromedical Psychologist. (R. 719-22), Dr. Carbary noted that Garza’s
OQ45 score had increased to 74. (R.721). Garza was referred to Dr. Carbary for an
aeromedical neuropsychological evaluation at the request of the flight surgeon, Dr. John
The Outcome Questionnaire OQ45 is a psychological assessment that measures a patient’s current
mental health status.
Shields. (Id.). Dr. Shields requested the evaluation for the following reason.
SM 33YO aviator, 03, was at Rucker for a year and RX for a year with Zoloft.
Waiver never applied for. Now PCS to Campbell with continued Zoloft. Is
Aviator. Has been DNIF [Duty Not Involving Flying] for a year. Unclear if
this is correct DX. Unclear if SM needs to remain on Zoloft. Unclear if this
SM can be waivered. Tim, Could you please see, assess, DX, RX as
(R. 721) (emphasis added).
Following his assessment, Dr. Carbary suggested an off-post psychotherapist. (R.
On December 12, 2012, Garza presented to Dr. Chatigny complaining of poor sleep,
and hypervigilance. (R. 715). Dr. Chatigny confirmed his PTSD diagnosis, and also
diagnosed him with Adjustment Disorder with Anxious Mood. (R. 714-15). Dr. Chatigny
continued his prescription medications, and added a prescription for Trazadone. (R. 716).
Garza next saw Dr. Chatigny on December 28, 2012 and reported that he had “not
been doing well.” (R. 695). He complained of depression, irritability, increased stress,
anxiety and insomnia. (Id.) Dr. Chatigny again diagnosed Garza with PTSD “related to past
deployment” and with involutional melancholia (MDD) mild. (Id.) She increased his
medications. (R. 696).
On January 17, 2013, Garza presented to Dr. Chatigny for therapy. (R. 674-76). At
that time, his OQ45 score had increased from 74 in December 2012 to 83. (R. 674). His
mood was depressed and his affect was restricted. (R. 676).
On February 12, 2013, Garza was seen at the medical clinic for a follow-up regarding
his fatty liver and a sleep study. (R. 647-53). While Garza was tolerating a CPAP machine
for his sleep apnea, Garza’s answers to PTSD questionnaires again indicated positive for
PTSD. (R. 651). Dr. Strobel, a flight surgeon, noted that Garza continued to suffer from
nightmares despite medication. He opined that “[t]his might become a MEB6 diagnosis if
continued symptoms unaffected with daily activities and work.” (Id.)
On February 26, 2013, Garza presented to Dr. Chatigny with the complaint that he was
“still having trouble.” (R. 632-35). His OQ45 score had increased again from 83 to 91.
Although he was in no acute distress, his mood was depressed and his affect was restricted.
(R. 634). Dr. Chatigny noted that a medical retirement should be considered. (R. 635).
The ALJ does not reference Dr. Strobel or Dr. Chatigny’s recommendations that
Garza be retired from the military for medical reasons. Rather, the ALJ erroneously
speculates that Garza’s
sudden increase in symptoms after [his] transfer [is] suspect in light of his
successful treatment at Fort Rucker. The overall record suggests, that once he
finished college and his Captain’s Career Course, he decided to leave the
Army and with a military retirement.
This finding is gross speculation with no basis in fact. In 2012, Garza informed Dr.
Ferrell that he was being stationed at Fort Campbell and he was pleased with the assignment.
(R. 762). In addition, the medical records demonstrate that Garza repeatedly attempted to
A MEB diagnosis would refer Garza to the Medical Evaluation Board for a military medical
retirement from active duty.
taper off his prescribed medications so that he could obtain a flight waiver and return to
flying helicopters. (R. 744-48, 762, 785-86, 789, 809). The ALJ also completely ignores the
evidence in the record that medical professionals, and not Garza, initiated his retirement.
This is yet another example of the ALJ’s antagonism and hostility to Garza.
On March 6, 2013, Garza contacted the health clinic to discuss his referral to
behavioral therapy. “[Patient] states he is seeing BH for the last year, does not understand
why he needs another referral.” (R. 619). Garza was referred for consultation to Behavioral
Health. (Id.) However, Dr. Strobel noted that Garza had
signs and symptoms consistent with PTSD. Review of medical records
identifies possible poorly-controlled PTSD symptoms. Have consulted neuro
behavioral psychologist Dr. Carbary for evaluation, discussing with immediate
supervisor, and providing recommendations for potential MEB/WTU
Dr. Strobel’s primary diagnosis was Post-traumatic stress disorder. (Id.) Dr. Strobel
saw Garza again on March 14, 2013. (R. 602-08). At that time, Dr. Strobel observed that
Garza exhibited “[s]igns and symptoms of continued PTSD requiring multiple central acting
medication,” [and] “continued PTSD symptom associated anxiety.” (R. 605). Screening was
positive for PTSD and depression. (R. 606).
On March 20, 2013, Dr. Chatigny discussed a medical retirement with Garza. (R.
Garza’s current medications included Effexor, Zonegran, Vistaril, Wellbutrin,
Minipress and Buspar. (R. 598). His mood was depressed and his affect was restricted.
(Id.). Dr. Chatigny noted that Garza was
having exaserbation (sic) of depression after having a baseline depressed mood
for some time. Increased psychosocial stressors are contributing to TX
resistance. Continue meds as above. Consider start buspar for anxiety 7.5 mb
bid. Consider abilify. Pt in therapy at vandi he is going through some trauma
Finally, Dr. Chatigny opined that Garza did “not meet medical retention” requirements
and recommended that he proceed with a medical retirement. (Id.)
On March 21, 2013, a notation from the Mental Health Clinic revealed that Garza had
symptoms of “little interest, feeling depressed, difficulty sleeping, and difficulty
concentrating.” (R. 595). He also had PTSD symptoms of “reliving, avoidance and
hypervigilance.” (R. 596).
Dr. Chatigny next saw Garza on April 1, 2013 for psychotherapy. (R. 585-87). At
that time, Garza’s OQ45 score had increased from 91 to 112 which is considered clinically
significant. (R. 587). Dr. Chatigny’s treatment note is as follows.
Pt is going through trauma focused therapy off post. He is having a (sic)
exaserbation (sic) of his symptoms secondary to this. Called his therapist at
Vanderbilt and spoke with her about it. She is aware and will keep this
provider informed. Pt decreased visteril secondary to heart palpitations.
Continue Effexor XR 225 mg, zonegran 100mg, Wellbutrin XR 150mg,
minipress 5 mg and buspar 7.5mg bid. Pt continues to have hyperviligance,
melancholia with SI (no plan) and nightmares daily. Pt to increase minipress
today to 7mg and will add serqouel 25-100mg qhs prn insomnia. f/u in 2-4
weeks or sooner if needed.
Despite these recent treatment notes and the recommendation that Garza be retired
medically from the military, the ALJ gave great to Dr. Chatigny’s opinions because
according to the ALJ, Dr. Chatigny found “that the claimant has no more than mild to
moderate symptoms or mild to moderate impairment in his social and occupational
functioning.” (R. 40). This finding is not supported by the medical evidence, and it is
refuted by Dr. Chatigny’s recommendation that Garza be referred to MEB for a medical
retirement from the Army. (R. 599).
On April 1, 2013, Dr. Michelle Rorie of the Medical Evaluation Board (“MEB”) saw
Garza for a military physical medical evaluation for the MEB and conducted a “fitness for
duty” examination. (R. 583-84). Dr. Rorie interviewed Garza and reviewed his medical
records. (Id.) Dr. Rorie’s provisional diagnoses were “MDD [major depressive disorder],
severe with resistence to treatment and PTSD, moderate to severe.” (R. 583). She noted that
Garza “can not do his job. [H]e is very symptomatic with avoidance, melancholia and
anxiety. He does not meet medical retention.” (Id.)
S: 33 yo AD male with MOS 15B–UH-60 Helicopter Pilot/Unit Air
Movement Officer referred to MEB due to Major Depressive and Post
Traumatic Stress Disorder. Interview with soldier and review of AHLTA notes
indicates symptoms began in 2011. Soldier was first seen in regards to his
MEB condition on 11 Oct 11 with ABH on referral from flight surgeon Sallis
for an Aeromedical psychiatric evaluation due to combat related stress.
Soldier had recently returned from deployment to Afghanistan and was
completing his degree as a full time student. He reported loss of motivation,
poor concentration, irritable mood, startle response, hyperviligence (sic),
impatience around civilians, and feeling uncomfortable around people. Soldier
reported taking his gun everywhere and sleeping with his firearm in order to
feel safe since the Ft. Hood shootings. Soldier had routine labwork drawn and
had a comprehensive psychiatric evaluation. He was recommended for
continued psychotherapy. This occurred in a deployment or garrison setting.
01 Nov 11 soldier saw ABH and was prescribed Trazodone for sleep, Zoloft
for core PTSD, and Depakote ER for anger/irritability. 07 Feb 12 solder saw
ABH and was doing well with mood stabilization except that he reported a 72
pound weight gain since starting Depakote and Zoloft. Soldier was weaned off
of Depakote and started on Trileptal. He was continued on Zoloft. 08 Mar 12
soldier saw ABH for follow up and reported an improvement in his irritability
and a 10 pound with (sic) loss with the medication adjustment. 09 Apr 12
soldier saw ABH and was doing well but requested a taper off of his Trileptal
in order to regain flight status. He was diagnosed with Post Traumatic Stress
Disorder and was given taper instructions for Trileptal while increasing Zoloft.
06 Aug 12 soldier saw ABH prior to transfer for Ft. Campbell and was doing
well. 30 Nov. 12 soldier saw ABH at Ft. Campbell and reported continued
symptoms including fatigue, hyperviligence, insomnia, and social isolation.
He also reported depressed mood. Soldier’s Zoloft was cross tapered to
Effexor XR and Zonegran was started for mood stabilization and to assist in
weight loss. 05 Dec 12 soldier saw Aeromedical Neuropsychology for
assessment IAW. 28 Dec 12 soldier saw ABH and reported increased
depressive symptoms over the holidays. 12 Feb 13 soldier saw his PCM and
MEB was a consideration due to his continued PTSD symptoms. He reached
MRDP on 20 Mar 13 when ABH consulted MEB.
Dr. Rorie opined that Garza suffers from Major Depressive Disorder and Post
Traumatic Stress Disorder at levels that are medically unacceptable for military service.
(Id.). On April 3, 2013, Dr. Rorie completed a physical profile on Garza. (R. 265). She
again opined that Garza did not meet the retention standards of the Army and that he needed
to be referred to the Medical Review Board. She also indicated that he should have no
weapons or ammunition. (Id.). Dr. David Twillie approved her recommendation. (Id.)
In addition, on April 1, 2013, Garza’s commanding officer completed a Performance
and Functional Statement. (R. 266-70). His commanding officer noted that Garza could not
perform his duties and did not recommend retaining him.
[Service Member’s] PTSD and MDD hinders performance through
occupational and social impairment. His abilities to concentrate, multitask,
make decisions, to recollect instructions, and to follow direction has
diminished significantly over the past three months. When this Officer first
arrived at the Unit, he was capable of handling all tasks required of his duty
position. Since then, however, his abilities to do so have decreased. He can
no longer concentrate long enough to complete any task given to him, nor is
he able to establish and maintain effective interpersonal work relationships
with peers. SM also displays extreme mood swings, displaying guilt, sadness,
and tears one minute, while gravitating towards anger, irritability, and
impulsiveness the next.
Garza’s commanding officer further opined that Garza could not perform “General
Staff Officer Duties, Aviator Duties, Assistant S-3 Tasks, [or] Unit Air Movement Planning
Duties.” (R. 268). Despite these observations from his commanding officer, the ALJ
concluded that “[t]he record is wholly void of any evidence or objective note of failed
functioning while interacting with others.” (R. 21). This finding in not supported by any
evidence, and the ALJ completely ignores Garza’s medical military records contained within
On April 23, 2015, Dr. Aileen McAlister completed a Compensation and Pension
Exam Report of Garza. (R. 274-300). Dr. McAlister stated that she reviewed Garza’s
medical records and his claim file, and she specifically listed all the medical records she
reviewed beginning in 2008 and ending on April 12, 2013. (R. 274-278). Dr. McAlister also
interviewed Garza. (R. 280). Garza provided Dr. McAlister with a letter from his
psychiatrist Dr. Deborah Tyson.
Dr. McAlister noted that Garza’s reports of the deterioration of his PTSD symptoms
were documented in and consistent with his medical records. (R. 292). Dr. McAlister opined
that Garza met the DSM-IV criteria for a diagnosis of PTSD. (R. 295). She diagnosed him
with PTSD, delayed onset, now chronic, and Major Depressive Disorder, . . . due to PTSD.
(Id.). The ALJ gave little weight to the opinion of Dr. McAlister because “Dr. McAlister
performed a one-time psychiatric evaluation”7 and she “relied heavily on Dr. Tyson’s opinion
to show there was a delay in claimant’s PTSD symptoms.” (R. 41). While Dr. McAlister
noted Dr. Tyson’s letter in her assessment, there is no indication in her report that she relied
solely or heavily on her letter. See R. 281. This finding by the ALJ is not supported by the
record, and thus, his reasons for discounting her opinion are not supported by substantial
On June 26, 2013, Garza was transferred to the Warrior Transition Unit for treatment
and evaluation of his PTSD. (R. 516). It was recommended that a service dog be provided
to Garza for added support and to decrease his PTSD and anxiety symptoms. (R. 518).
On July 10, 2013, Garza began seeing Dr. Sandya Gunasekera. (R.477-81). After an
evaluation, Dr. Gunasekera noted that Garza was anxious and diagnosed him with PTSD.
(R. 480). He continued Garza on Wellbutrin, Effexor, and Buspar. (Id.) Garza was seen by
Dr. Gunasekera on July 24, 2013, (R. 461-65), August 12, 2013, (R. 420-24), and September
Ironically, the ALJ gave Dr. King’s opinion “significant weight” despite the fact that she also
conducted a “one-time psychiatric evaluation.”
11, 2013. (R. 396-401). Interestingly, many of Dr. Gunasekera’s notes are identical for each
visit except for the change in medication. The ALJ gave “great weight” to the opinion of Dr.
Gunasekera because “as shown by [his] GAF assessments,  the claimant has no more than
mild or moderate symptoms.” (R. 40). With respect to Dr. Gunasekera, the ALJ relies on
a GAF score of 60 noted on his treatment record of July 10, 2013. The ALJ’s reliance is
misplaced. There is no explanation as to how Dr. Gunasekera determined that score but more
importantly, nowhere in Dr. Gunasekera’s notes does he indicate that Garza’s symptoms are
mild or moderate.
On May 28, 2013, the Medical Evaluation Board found that Garza was “unfit to
continue military service” due to “Posttraumatic stress disorder w/ comorbid major
depressive disorder.” (R. 303). Because the Army determined that Garza was unfit for
military duty, he was referred to the Department of Veterans Affairs for a disability
assessment. (R. 1260). He was recommended for 100% disability due to posttraumatic stress
disorder with major depressive disorder. (R. 1261). On September 12, 2013, the Department
of Veterans Affairs (“VA”) issued a decision awarding Garza 100 % disability based on
posttraumatic stress disorder with major depressive disorder and awarding him benefits. (R.
The ALJ gave “some weight to the military Medical Evaluation Board’s “Medical
Retention Determination Point (MRDP)” statement” and did not specify the weight he gave
to the Veterans Administration’s disability rating. (R. 40 & 42). According to the ALJ
[T]he Department of Veterans Affairs found claimant’s PTSD 100% disabling
based on Dr. McAlister’s evaluation and her GAF assessment of 50 on April
23, 2013 (Exhibit 9F, page 3). It does not appear that the Department of
Veterans Affairs performed their own mental evaluation nor does it appear that
they reviewed claimant’s military medical records authored by Drs. Chatigny,
Gunasekera, and Griffins, which indicate that his overall PTSD symptoms and
functioning were mild to moderate in severity.
In its decision, the VA listed the evidence it relied on to reach its decision. See R.
1277-78. The ALJ is simply wrong with respect to the review of the medical records. In
listing the evidence reviewed, the VA specifically reviewed Garza’s “[s]ervice treatment
records, period of service from April 1999 through April 2013” which would include Dr.
Chatigny’s records. (R. 1277). In addition, as previously pointed out, the ALJ ignored Dr.
Chatigny’s records that did not support his determination that Garza’s symptoms were “mild
to moderate in severity.”
“Generally, ‘[t]he findings of disability by another agency, although not binding on
the Secretary, are entitled to great weight.’” See Falcon v. Heckler, 732 F.2d 827, 831 (11th
Cir. 1984) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983). See also
Brady v. Heckler, 724 F.2d 914, 921 (11th Cir. 1984) (“Although the [VA]’s disability rating
is not binding on the [Commissioner], it is evidence that should be given great weight.”).
Thus, the court concludes that the ALJ’s reasons for discounting the findings of the MEB and
the VA are not supported by substantial evidence.
The court now turns to the ALJ’s reliance on Dr. King to conclude that Garza has “no
more than moderate impairments.” (R. 40). Again, his reliance is misplaced. First, the court
notes that much of Dr. King’s history, which the ALJ accepted as true, is contradicted by the
evidence. For example, Dr. King noted that Garza had “a number of tattoos on his
knuckles,” and “[h]is military occupation speciality was an in aircraft power plant repair
according to the records.” (R. 1287). Garza denied any tattoos on his knuckles (which would
have been apparent to the ALJ at the administrative hearing), and all of Garza’s military
records list his occupational speciality as UH-60 Blackhawk helicopter pilot. Furthermore,
Dr. King stated that Garza “did not see combat.” (R. 1287). She was simply wrong but the
ALJ treated her historical recitation as true and accurate. Finally, the ALJ emphasized Dr.
King’s statement that she could “neither confirm nor disconfirm the validity of [his PTSD]
diagnosis” in his opinion. (R. 30). The ALJ also questioned Garza at the administrative
hearing about Dr. King’s failure to confirm his PTSD diagnosis. (R. 63). The ALJ’s
selection of a single statement again illustrates his antagonism to Garza. Dr. King’s summary
is as follows.
This individual presents with symptoms of depressed mood, particularly
irritability and sleep issues. . . . Other medical records have given him the
diagnosis of PTSD. This examiner could neither confirm nor disconfirm the
validity of that diagnosis. Based on medical records and the patient’s
interview today, he is judged to have a mild to moderate restriction of
activities, a mild to moderate constriction of interests, and moderate
impairment in his ability to relate to others. He would be able to function
independently and takes (sic) care of his basic physical needs. Once his
depression stabilizes, he would be able to understand, carry out, and remember
simple to complex instructions. He may have some difficulty responding
appropriately to supervisors and co-workers per his report and would do best
in a supportive work environment in which he can primarily work alone.
Dr. King conditions Garza’s ability to work on the stabilization of his depression
which the ALJ ignores.
The law in this circuit is well-settled that the ALJ must accord “substantial weight”
or “considerable weight” to the opinion, diagnosis, and medical evidence of the claimant’s
treating physicians unless good cause exists for not doing so. Jones v. Bowen, 810 F.2d
1001, 1005 (11th Cir. 1986); Broughton v. Heckler, 776 F.2d 960, 961 (11th Cir. 1985). The
Commissioner, as reflected in his regulations, also demonstrates a similar preference for the
opinion of treating physicians.
Generally, we give more weight to opinions from your treating sources, since
these sources are likely to be the medical professionals most able to provide
a detailed, longitudinal picture of your medical impairment(s) and may bring
a unique perspective to the medical evidence that cannot be obtained from the
objective medical findings alone or from reports of individual examinations,
such as consultive examinations or brief hospitalizations.
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing 20 CFR § 404.1527 (d)(2)).
It is not only legally relevant but unquestionably logical that the opinions, diagnosis, and
medical evidence of a treating physician whose familiarity with the patient’s injuries, course
of treatment, and responses over a considerable length of time, should be given considerable
First, as previously mentioned, one of Garza’s treating physicians, Dr. Strobel,
recognized that Garza was suffering from poorly managed PTSD. Dr. Strobel recommended
that Garza be medically retired from the Army. (R. 619). However, nowhere in the ALJ’s
opinion is there any mention of Dr. Strobel, and his opinion that Garza’s symptoms are
poorly controlled is flatly inconsistent with the ALJ’s determination that Garza only suffers
from mild to moderate symptoms. It was error for the ALJ to disregard Dr. Strobel’s
Next, the ALJ assigned great weight to the opinion of Garza’s treating physician, Dr.
Chatigny. (R. 40). However, he attributed to her an opinion that is not supported by her
records. The ALJ found that Dr. Chatigny found Garza’s PTSD symptoms to be mild or
moderate. (R. 40). This was clearly erroneous. Dr. Chatigny was the physician who
recommended that Garza be medically retired from the Army due to the severity of his PTSD
and depression symptoms.
As noted throughout the court’s recitation of the medical evidence, it is evident that
the ALJ was antagonistic towards Garza, and he culled the record for selective references,
ignoring comments that did not support his conclusions. At one point in his opinion, the ALJ
attacks Garza for applying for disability benefits. “The undersigned must stress that the
review or statement as to the severe and nonsevere impairments above, while lengthy, results
not so much from limitation associated with this litany of impairments, but rather what the
undersigned feels is the claimant’s unabashed desire to procure compensation.” (R. 19).
Social Security ALJs have a tough job. The adjudicatory burden imposed on them by the
Administration requires herculean efforts. Thus, it is no wonder that they sometimes make
mistakes. And, the court has no doubt that some claimants exaggerate symptoms to improve
their chances to obtain benefits. That said, the court cannot countenance ALJ Lassiter’s
insinuation that Garza was somehow improperly attempting to secure benefits. Garza’s
military commanders, military physicians and his treating physicians all concluded that he
had severe PTSD. A person who is unable to work has a legal right to seek Social Security
benefits, and no one, least of all an Administrative Law Judge, should fault them for pursuit
of a legal right.
Because the ALJ failed to give great weight to the opinions of Garza’s treating
physicians, Dr. Chatigny and Dr. Strobel, and he failed to give great weight to the disability
determination of other agencies, the court concludes that ALJ failed to apply the correct legal
standards in this case. The ALJ compounded his errors by culling the record to select only
those entries that supported his determination. Finally, due to the ALJ’s hostility and
antagonism, the court concludes Garza was denied fair, full and impartial evaluation of his
claim. See Miles, 84 F.3d at 1400.
Dr. Strobel, Dr. Chatigny, Dr. Rorie and Dr. McAlister all opined at different times
that Garza’s PTSD and depression were moderate to severe and resistance to treatment. Even
Dr. King opined that Garza would have difficulty responding appropriately to supervisors
and co-workers. (R. 1291). At the administrative hearing, the ALJ asked the vocational
expert about an individual’s ability to respond to supervision. This is what the vocational
If this individual could not respond appropriately to even occasional
supervisor, would there be full-time work available?
No, sir. Again the number one reason people do not keep jobs is they
do not receive supervision, constructive supervision or supervision
appropriately and/or do not get along well with coworkers.
All right. And that was going to be my next question. If this individual
could not interact with coworkers even occasionally, would there be
full-time work for such individual?
No, sir, that would preclude work.
Because there is objective medical evidence in the record from his treating physicians
that demonstrates that Garza could not respond appropriately to supervision or co-workers
in the work place, based on the testimony of the vocational expert the court concludes that
Garza is disabled and entitled to an award of benefits. Thus, it is appropriate to reverse the
decision of the Commissioner so that benefits may be awarded to the plaintiff. See Davis v.
Shalala, 985 F.2d 528, 534 (11th Cir. 1993) (reversal with award of benefits appropriate
where the Commissioner has already considered the essential evidence and it is clear that the
evidence establishes disability without any doubt). See also Lamb v. Bowen, 847 F.2d 698,
701 (11th Cir. 1988) ( failure to apply the correct legal standards is grounds for reversal and
an award of benefits).
Accordingly, for the reasons as stated, the decision of the Commissioner will be
reversed and the case remanded to the Commissioner with instructions that benefits be
awarded to the plaintiff.
A separate order will issue.
It is further
ORDERED that, in accordance with Bergen v. Comm’r of Soc. Sec., 454 F.3d 1273,
1278 fn. 2 (11th Cir. 2006), the plaintiff shall have sixty (60) days after he receives notice
of any amount of past due benefits awarded to seek attorney’s fees under 42 U.S.C. § 406(b).
See also Blitch v. Astrue, 261 Fed. App’x 241, 242 fn.1 (11th Cir. 2008).
Done this 13th day of September, 2016.
/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE
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