IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

CHAD WILLIAMS,

Plaintiff,

vs. CASE NO. 1:10-cv-203-MP-GRJ

MICHAEL J. ASTRUE,

Commissioner of Social Security

Defendant.

 /

REPORT AND RECOMMENDATION

Plaintiff appeals to this Court from a final decision of the Commissioner of Social

Security (the “Commissioner”) denying his application for a period of disability and

disability insurance benefits. (Doc. 1.) The Commissioner has answered (Doc. 10),

and both parties have filed briefs outlining their respective positions. (Docs. 19 and 22.) 

For the reasons discussed below, the Commissioner’s decision is due to be

REVERSED AND REMANDED pursuant to the fourth sentence of 42 U.S.C. § 405(g)

to give proper weight to the treating psychologist opinion of Dr. Khalil Sakalla, Ph.D.

I. PROCEDURAL HISTORY

Plaintiff protectively filed an application for disability insurance benefits under

Title II of the Social Security Act (the “Act”) on March 3, 2006 alleging a disability onset

date of April 28, 2004. (R. 63-68, 405.) Plaintiff’s application was denied initially and

1

upon reconsideration. (R. 31-35, 44-46, 47.) Plaintiff then filed a timely request for an

Plaintiff’s initial application for disability insurance benefits alleged an onset date of August 1,

1

2002, but Plaintiff later amended his application to allege a disability onset date of April 28, 2004. (R. 478,

482.)

Case 1:10-cv-00203-MP-GRJ Document 23 Filed 12/14/11 Page 1 of 26
administrative hearing on February 5, 2007. (R. 43.) Plaintiff did not appear at the first

scheduled hearing, which prompted an Administrative Law Judge (“ALJ”) to dismiss his

case, but the Appeals Council later reinstated his application on June 19, 2008. (R.

268-70, 387.) A second hearing was held before an ALJ on November 3, 2008 and the

ALJ issued a written decision dated December 15, 2008 denying Plaintiff’s application.

(R. 16-28, 283-87, 388-401.) Plaintiff then appealed this decision to the Appeals

Council, which denied Plaintiff’s request for review on April 24, 2009. (R. 13-14, 382-

84, 425-27.) 

Plaintiff then filed a lawsuit challenging the Commissioner’s decision in this Court

in Case No. 1:09-cv-140-MP-AK. (1:09-cv-140 Doc. 1.) The Commissioner moved to

remand the case to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g),

on the grounds that the ALJ had improperly relied on the medical-vocational guidelines

despite the Plaintiff’s nonexertional impairments. (1:09-cv-140 Doc. 7.) The Court

remanded the case to the Commissioner on November 4, 2009 with instructions that

the ALJ conduct a supplemental hearing and obtain testimony from a vocational expert

upon remand. (1:09-cv-140 Docs. 8 and 9.) On March 12, 2010, the Appeals Council

remanded the case to the ALJ to conduct proceedings consistent with this Court’s order

in Case No. 1:09-cv-140. (R. 437-40.)

A supplemental hearing was held on July 16, 2010 and the ALJ issued a written

decision dated August 18, 2010 concluding Plaintiff was not disabled and thus not

entitled to a period of disability insurance benefits. (R. 402-17, 452-57.) After 60 days

elapsed, the ALJ’s August 18, 2010 decision became the Commissioner’s final

decision. Plaintiff then filed his Complaint in this case on October 19, 2010. (Doc. 1.) 

2

Case 1:10-cv-00203-MP-GRJ Document 23 Filed 12/14/11 Page 2 of 26
II. STANDARD OF REVIEW

The Commissioner's findings of fact are conclusive if supported by substantial

evidence. Substantial evidence is more than a scintilla, i.e., the evidence must do more 2

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.3

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. The district court must view the evidence as a whole,

4

taking into account evidence favorable as well as unfavorable to the decision.5

However, the district court will reverse the Commissioner's decision on plenary review if

the decision applies incorrect law, or if the decision fails to provide the district court with

sufficient reasoning to determine that the Commissioner properly applied the law.6

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

See 42 U.S.C. § 405(g) (2000).

2

Foote v. Chater, 67 F.3d 1553, 1560 (11 Cir. 1995) (citing W alden v. Schweiker, 672 F.2d 835,

3 th

838 (11 Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842

th

(1971)); accord, Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11 Cir. 1991).

th

Edwards, 937 F.2d at 584 n.3; Barnes v. Sullivan, 932 F.2d 1356, 1358 (11 Cir. 1991).

4 th

Foote, 67 F.3d at 1560; accord, Lowery v. Sullivan, 979 F.2d 835, 837 (11 Cir. 1992) (holding

5 th

that the court must scrutinize the entire record to determine reasonableness of factual findings); Parker v.

Bowen, 793 F.2d 1177 (11 Cir. 1986) (finding that the court also must consider evidence detracting from

th

evidence on which the Commissioner relied).

Keeton v. Dep’t Health and Human Servs., 21 F.3d 1064, 1066 (11 Cir. 1994).

6 th

3

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expected to result in death, or has lasted or can be expected to last for a continuous

period of not less than twelve months. The impairment must be severe, making 7

Plaintiff unable to do her previous work, or any other substantial gainful activity which

exists in the national economy.

8

The ALJ must follow five steps in evaluating a claim of disability. First, if a 9

claimant is working at a substantial gainful activity, he is not disabled. Second, if a 10

claimant does not have any impairment or combination of impairments which

significantly limit his physical or mental ability to do basic work activities, then he does

not have a severe impairment and is not disabled. Third, if a claimant's impairments

11

meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is

disabled. Fourth, if a claimant's impairments do not prevent him from doing past 12

relevant work, he is not disabled. Fifth, if a claimant's impairments (considering his 13

residual functional capacity (“RFC”), age, education, and past work) prevent him from

doing other work that exists in the national economy, then he is disabled.14

42 U.S.C. §§ 416(i), 423(d)(1); 20 C.F.R. § 404.1505 (2005) (All further references to 20 C.F.R.

7

will be to the 2005 version unless otherwise specified.).

42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511.

8

20 C.F.R. §§ 404.1520, 416.920. The claimant has the burden of proving the existence of a

9

disability as defined by the Social Security Act. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11 Cir. 1991).

th

20 C.F.R. § 404.1520(b).

10

20 C.F.R. § 404.1520(c).

11

20 C.F.R. § 404.1520(d).

12

20 C.F.R. § 404.1520(e).

13

20 C.F.R. § 404.1520(f).

14

4

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The burden of proof regarding the plaintiff’s inability to perform past relevant

work initially lies with the plaintiff. The burden then temporarily shifts to the 15

Commissioner to demonstrate that “other work” which the claimant can perform

currently exists in the national economy. The Commissioner may satisfy this burden

16

by pointing to the Medical-Vocational Guidelines (the “Grids”) for a conclusive

determination that a claimant is disabled or not disabled. 

17

However, the ALJ should not exclusively rely on the Grids when “the claimant

has a non-exertional impairment which significantly limits his or her basic work skills or

when the claimant cannot perform a full range of employment at the appropriate level of

exertion.” In a situation where both exertional and non-exertional impairments are 18

found, the ALJ is obligated to make specific findings as to whether they preclude a wide

range of employment.19

The ALJ may use the Grids as a framework to evaluate vocational factors so

Walker v. Bowen, 826 F.2d 996, 1002 (11 Cir. 1987); see also Doughty v. Apfel, 245 F.

15 th

3d 1274, 1278 (11 Cir. 2001).

th

Doughty, 245 F.3d at 1278 n.2. In Doughty the court explained this burden shifting as follows:

16

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.) (Internal citations omitted).

Walker, 826 F.2d at 1002 (“[T]he grids may come into play once the burden has shifted to the

17

Commissioner to show that the claimant can perform other work.”).

Wolfe v. Chater, 86 F.3d 1072, 1077 ( 11 Cir. 1996). See Jones v. Apfel, 190 F.3d 1224, 1229

18 th

(11 Cir. 1999); W alker, 826 F.2d at 1003 (“The grids may be used only when each variable on the

th

appropriate grid accurately describes the claimant’s situation.”).

W alker, 826 F.2d at 1003.

19

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long as he introduces independent evidence of the existence of jobs in the national

economy that the claimant can perform. Such independent evidence may be 20

introduced by a Vocational Expert’s (“VE”) testimony, but this is not the exclusive

means of introducing such evidence. Only after the Commissioner meets this burden

21

does the burden shift back to the claimant to show that he or she is not capable of

performing the “other work” as set forth by the Commissioner.

III. SUMMARY OF THE RECORD

A. Personal Background

Plaintiff was born on March 13, 1976. (R. 29.) Plaintiff graduated from high

school, finished one year of college and served as a nuclear field technician in the

United States Navy until his discharge in mid-2002. (R. 483, 485.)

B. Evidence Considered By the ALJ

The evidence considered by the ALJ consisted primarily of Plaintiff’s records

from his visits to the Veterans Administration (“VA”) medical facilities in Gainesville,

Florida as well as the reports completed by two non-examining state agency

psychologists. The Court will focus its discussion of the record on Plaintiff’s depression

and anxiety, as those are most relevant to the issues before the Court in this case.

Plaintiff first reported to the VA on April 28, 2004 complaining he was

uncomfortable around people. (R. 230.) Upon examination, Plaintiff was “focused on

negative aspects of his life” and was diagnosed with dysthymic disorder. (R. 230-31.) 

W olfe, 86 F.3d at 1077-78.

20

See id.

21

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On another visit on June 10, 2004, Plaintiff reported only feeling “okay” and also

reported problems with concentration. (R. 218-19.) A mental disorder examination

performed on August 6, 2004 by Dr. Michael Haser, M.D. at the VA resulted in a

diagnosis of major depressive disorder with recurrent episodes and a GAF of 50. (R. 22

155-56.) Dr. Haser noted Plaintiff was poorly groomed and presented with a depressed

affect. (R. 157.) 

Plaintiff did not report for an appointment with psychiatrist Dr. William

Gamberino, M.D., Ph.D. at the VA on October 4, 2004. (R. 218.) Progress notes from

a January 3, 2005 appointment with Dr. Gamberino disclose that Plaintiff reported he

did not like being around people, even friends and family, because it caused him

anxiety, difficulty breathing and hot/cold flashes with sweating. (R. 211.) Plaintiff

further reported his social anxiety had progressively gotten worse after he left the Navy

and also had caused him to withdraw from the University of Florida. (Id.) Dr.

Gamberino noted Plaintiff’s mood was down and his affect nervous. Dr. Gamberino

diagnosed Plaintiff with dysthymic disorder and social anxiety disorder, assigned

Plaintiff a GAF of 50 and prescribed Celexa. (R. 212.) On January 31, 2005 Dr.

Gamberino noted Plaintiff appeared nervous with an anxious affect, so he prescribed

Clonazepam. (R. 209-10.) On March 14, 2005, Plaintiff reported benefits from the

Clonazepam, but stated he still had difficulty concentrating and felt “keyed up” when he

had to go out shopping Plaintiff was assigned a GAF of 57. (R. 200-01.) On May 9,

Global Assessment of Functioning, or GAF, is a measure of an individual’s psychological, social

22

and occupational functioning. Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994).

Scores range from 0 to 100 and a score between 41 and 50 represents “serious” symptoms or any serious

impairment in social occupational or school functioning; 51 to 60 represents moderate symptoms or

moderate difficulties in social, occupational or school functioning. Id. at 34.

7

Case 1:10-cv-00203-MP-GRJ Document 23 Filed 12/14/11 Page 7 of 26
2005 Plaintiff reported he still had significant difficulty with anxiety, particularly around

others, as well as low energy and motivation. Plaintiff’s GAF was assessed at 55 on this

visit. (R. 194-95.) 

On a June 27, 2005 visit to Dr. Gamberino, Plaintiff reported an exacerbation in

his depressive and anxiety symptoms due to increased stress from his recent move into

his grandparents’ house, which required a substantial amount of work to repair as a

result of hurricane damage. (R. 192-93.) Plaintiff also was forced prematurely to leave

a recent weekend visit to a local state park with friends due to excessive social anxiety. 

(R. 193.) Plaintiff reported continued trouble with motivation, short term memory and

concentration. (Id.) Plaintiff’s affect was restricted and anxious. Dr. Gamberino

assigned Plaintiff a GAF of 45 on this visit. (R. 194.)

On August 1, 2005 Plaintiff complained to Dr. Gamberino he “‘can’t get it

together’” several days a week, meaning he suffered from poor concentration, little

motivation, and lack of direction. (R. 189-90.) Dr. Gamberino assigned Plaintiff a GAF

of 45. (R. 191-92.) A mental disorder examination performed on August 23, 2005 by

Dr. Billie Warren, Ph.D. reflected a chronic depressed mood with impaired social skills

hampered by social anxiety. (R. 153-55.) Plaintiff appeared “despondent and

discouraged” and was assigned a GAF of 48. Dr. Warren concluded Plaintiff’s

depression caused Plaintiff significant social impairment and hindered Plaintiff’s ability

to obtain and maintain employment. (Id.)

On August 29, 2005, Plaintiff visited Dr. Gamberino and reported extreme social

impairment, severe baseline anxiety and occasional panic attacks, including “odd

sensations including feeling like someone is ‘plucking’ his nerves, like getting shocked,

8

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when anxious.” (R. 185-87.) Dr. Gamberino noted Plaintiff’s affect was restricted and

anxious and that Plaintiff continued to suffer from extreme impairment socially and

occupationally. Dr. Gamberino assigned Plaintiff a GAF of 45. (R. 185-86.) 

On an October 17, 2005 visit to Dr. Gamberino, Plaintiff reported an increase in

his baseline anxiety and occasional panic attacks and exhibited a restricted and

anxious affect. Plaintiff’s GAF was recorded as 45. (R. 182-83.) Dr. Khalil Sakalla,

Ph.D., a VA staff psychologist, performed a consultation of Plaintiff the same day and

concluded Plaintiff’s mood was dysthymic and his affect congruent. Notably, Dr. Sakalla

assessed Plaintiff’s condition as chronic. (R. 184.) Dr. Sakalla also noted Plaintiff

“appeared in distress” over his “discomfort level and feelings of anxiety/phobia.” (R.

184-85.)

On a December 2005 visit to Dr. Gamberino, Plaintiff reported his medications

were beneficial for his anxiety but he still “spends most of his time isolating and even

then remains symptomatic with anxiety and its physical manifestations.” (R. 179.) Dr.

Gamberino noted Plaintiff had benefitted from treatment but still suffered from extreme

social and occupational impairment, and assigned Plaintiff a GAF of 55. (R. 180-81.) 

On a January 19, 2006 visit to Dr. Sakalla, Plaintiff “presented poorly,” exhibited a

“notable decline” in his depressed mood and had “remarkably different” presentation

from his last visit. (R. 178.) On a February 2006 visit to Dr. Sakalla, Plaintiff still

presented “below his baseline of chronically dysthymic/depressed mood.” (R. 177.) 

On a March 6, 2006 appointment with Dr. Gamberino, Plaintiff reported

increased depression and memory problems. Dr. Gamberino wrote Plaintiff “continued

to suffer extreme impairment socially and occupationally as a result of his condition.” 

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(R. 166.) Plaintiff also reported feeling uncomfortable, even around his own family, and

Dr. Gamberino assigned Plaintiff a GAF of 50. (R. 166-67.) 

On a March 22, 2006 visit to Dr. Sakalla, Plaintiff’s mood was dysthymic with

congruent affect and he presented as “unkempt with poor hygiene.” (R. 164.) Dr.

Sakalla wrote a letter describing Plaintiff’s condition to school authorities that same day

in which he noted Plaintiff “is seeking psychotherapy for his depression and social

anxiety that often impact his daily functioning and prevent him from pursuing social

activities including work and/or school.” (R. 165.)

Steven Wise, Psy.D., a non-examining state agency psychologist, completed

Mental RFC and Psychiatric Review Technique forms of Plaintiff dated April 24, 2006. 

(129-145.) Dr. Wise opined Plaintiff had mild restrictions in his activities of daily living,

moderate difficulties in maintaining concentration, persistence, or pace and no episodes

of decompensation of extended duration. (R. 139.) He concluded Plaintiff can

understand and remember basic tasks, carry out simple tasks, maintain concentration

and attention for routine, uncomplicated tasks for two hour periods, relate to

supervisors and coworkers, complete a normal workweek without excessive interruption

for psychologically based symptoms, and adapt to simple changes. (R. 145.)

In May 2006 Plaintiff reported to a new psychiatrist at the VA, Dr. Jon D. Hodgin,

M.D., that his medications were helpful in decreasing his depressive and anxiety

symptoms. Nonetheless, Dr. Hodgin assessed Plaintiff’s GAF as 45. (R. 163-64.) In

June Plaintiff’s mood and affect were both anxious on a visit to Dr. Hodgin and his GAF

was again assessed at 45. (R. 162-63.) Plaintiff reported some benefits from his

medication on a visit to Dr. Hodgin in September 2006, but his affect was subdued and

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Case 1:10-cv-00203-MP-GRJ Document 23 Filed 12/14/11 Page 10 of 26
his GAF was again 45. The assessment was the same on another visit to Dr. Hodgin

the next month. (R. 157-58, 370-71.) 

Dr. Lauriann Sandrik, Psy.D., a non-examining state agency psychologist,

completed Mental RFC and Psychiatric Review Technique assessments of Plaintiff

dated December 11, 2006. (R. 235-252.) She noted Plaintiff appeared mentally

capable of completing simple, routine tasks in an appropriate amount of time and also

appeared capable of appropriate interactions with other. (R. 237.) She concluded

Plaintiff had mild restrictions in his activities of daily living, moderate difficulties in

maintaining social functioning and in maintaining concentration, persistence or pace

and no episodes of decompensation of extended duration. (R. 249.) 

Plaintiff’s mood and affect were both depressed in January 2007 according to Dr.

Hodgin’s progress notes. (R. 369-70.) Plaintiff visited Dr. Sakalla on March 29, 2007

and presented with a depressed mood, congruent affect and with minimal hygiene, and

Dr. Sakalla assigned him a GAF of 60. (R. 363-64.) In April Dr. Sakalla noted,

although Plaintiff presented with “notable improvement and better hygiene,” “depression

remains a factor . . . likely to hinder the process if support was not available.” (R. 359-

60.) Plaintiff reported benefits for his depression and anxiety from his prescribed

medications on visits to Dr. Hodgin in late April 2007 and in May 2007, but his GAF

remained at 45. (R. 357-59.) On a May 2007 visit to Dr. Sakalla, the doctor noted

Plaintiff “continues with stability” but noted Plaintiff’s mood was overall dysthymic with a

congruent affect. (R. 357.) 

Plaintiff did not return to the Gainesville VA for treatment of his depressive and

anxiety symptoms again until May 21, 2008, as he had been in Hawaii in the interim

11

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dealing with criminal charges against him that were eventually dismissed. (R. 341.) A

mental health initial assessment was performed on that date and reflected continued

social anxiety, a lack of focus and concentration, and a lack of energy and interest. (R.

341-44.) On May 23, 2008, Dr. Sakalla noted Plaintiff’s depression was at Plaintiff’s

baseline “despite resolution of his distress” related to the Hawaii criminal charges. He

assigned Plaintiff a GAF of 60. (R. 340-41.) Plaintiff saw Dr. Jose Llinas, M.D., who

was filling in for Dr. Hodgin, on June 12, 2008. Dr. Llinas noted Plaintiff’s “emotional

reactions show[ed] elements of depression and anxiety” and assigned a GAF of 60. (R.

334-36.) Plaintiff’s responses to a Hirschfeld Mood Disorders Questionnaire that day

reflected trouble with thoughts racing through his head and concentrating. (R. 335-36.)

On July 11, 2008 Plaintiff presented with a decline in mood and a more reserved

and quiet affect. He was unable to engage fully in the meeting, and Dr. Sakalla

assigned him a GAF of 60. (R. 328.) Plaintiff reported a slight improvement in his

mood when contacted by telephone by Dr. Sakalla on July 17, 2008. (R. 323, 329.)

Plaintiff reported a minor improvement in his symptoms to Dr. Sakalla on August

19, 2008, but Dr. Sakalla wrote this self-reported improvement “did not match his

presentation of depressed mood and congruent affect” and assigned Plaintiff a GAF of

60. (R. 319-20.) Plaintiff also reported he had recently made plans to go to a movie

with a friend but had to cancel the plans due to social anxiety. (R. 320.) On September

8, 2008 Plaintiff saw Dr. Sakalla. Plaintiff’s appearance reflected minimal attention in his

hygiene. Plaintiff was more flat in presentation and was assigned a GAF of 60. (R.

317.) Plaintiff also requested a letter describing his condition to school authorities that

same day. Dr. Sakalla wrote Plaintiff “is seeking psychotherapy for his depression and

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social anxiety that often impact his daily functioning and prevent him from pursuing

social activities including work and/or school.” (R. 318.)

Plaintiff also applied for and received benefits from the Department of Veterans

Affairs based on his depression and anxiety during the relevant time period. On June

30, 2008, the Department of Veterans Affairs continued Plaintiff on a 70% disabled

rating based on his dysthymic disorder. (R. 302-07.) In the report accompanying this

decision, the VA noted “[a]lthough recent evidence shows some improvement in the

condition, sustained improvement has not been definitively established.” (R. 305.) The

rating decision further stated “[a]n evaluation of 70 percent is assigned for occupations

and social impairment, with deficiencies in most areas, such as work, school, family

relations, judgment, thinking, or mood.” (R. 305.) The decision further stated

“[e]ntitlement to individual unemployability is continued as you remain unable to secure

or follow a substantially gainful occupation as a result of your service-connected

disabilities.” (R. 306.)

The Department of Veterans Affairs based its continuation of Plaintiff on 70%

disability on Medical Source Statement and Mental Impairment Questionnaire forms

completed by Dr. Sakalla, Plaintiff’s treating psychologist. (R. 308-16.) In these forms,

Dr. Sakalla noted he had met with Plaintiff 15 times between October 17, 2005 and

September 2008. (R. 308.) Dr. Sakalla opined that Plaintiff’s current GAF was 50 and

identified Plaintiff’s signs and symptoms as: appetite disturbance with weight change,

sleep disturbance, anhedonia or pervasive loss of interests, social/emotional withdrawal

or isolation, blunt, flat or inappropriate affect, mood disturbance, decreased energy and

pathological dependence or passivity. (R. 308, 314.) Dr. Sakalla noted Plaintiff had

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experienced depression and social isolation with an ongoing decline. (R. 309.) Dr.

Sakalla opined Plaintiff’s impairments or treatment would result in Plaintiff being absent

from work more than three times a month and Plaintiff would be able to perform the

basic mental activities of work for only 1/3 of an 8-hour workday. (R. 309-10.) He also

opined Plaintiff exhibited marked restriction in his activities of daily living, extreme

difficulties in social functioning, frequent deficiencies of concentration, persistence or

pace resulting in a failure to complete tasks in a timely manner, marked difficulties in

maintaining concentration, persistence or pace and one or two episodes of

decompensation in the previous twelve months. (R. 311-12, 315.) Dr. Sakalla also

opined Plaintiff exhibited a current history of one or more years’ inability to function

outside a highly supportive living arrangement. (R. 316.)

C. Hearing Testimony

Plaintiff testified at his administrative hearing. He testified that he began having

issues with depression in 2000 when serving in the Navy. (R. 487.) Plaintiff was

placed on medical hold in 2000 for six months and then again in late 2001 in order to

attend therapy and receive medications. (R. 488, 490.) In 2002 his depression

worsened to the point where he was discharged from the Navy. (R. 489.) 

Plaintiff stated a typical day for him consists of waking up, feeding his cat, and

then sometimes laying down in the afternoon as a result of his medications. (R. 491.) 

He takes Clonazepam for his anxiety and Duloxetine for depression. (R. 491-92.) 

A Vocational Expert (“VE”) also testified at the administrative hearing. The VE

stated Plaintiff’s past relevant work consisted of the position of computer technician, a

light work position that is skilled in nature. (R. 492-93.) The ALJ asked the VE to

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assume a hypothetical individual of Plaintiff’s age, education level, past work

experience and body habitus. (R. 494.) He then asked the VE to assume the

hypothetical individual was limited to low stress, simple, unskilled work requiring one,

two or three step instructions; could only lift and carry 10 pounds frequently and 20

pounds occasionally; could stand for a total of six hours and sit for six hours in an eight

hour work day; should avoid frequent ascending/descending of stairs; should avoid

hazards in the workplace; is limited to no climbing and occasional balancing, stooping,

crouching, kneeling and crawling; and is confined to a relatively clean work

environment. (Id.) The hypothetical individual also has depression which affects his

ability to concentrate upon complex or detailed tasks but he would remain capable of

understanding, remembering and carrying out simple job instructions. (Id.)

The VE testified such an individual would be unable to perform Plaintiff’s past

relevant work. (Id.) He further testified such a hypothetical individual could perform,

however, some unskilled jobs, such as a mail clerk, a factory packager and a fast food

worker. (R. 495.) The VE further testified there are 2,352 mail clerk jobs in central

Florida and more than 500,000 in the national economy, 4,285 factory packager jobs in

cental Florida with 1,000,000 jobs in the national economy, and 31,360 fast food jobs in

the central Florida area with 3,000,000 jobs in the national economy. (Id.) The ALJ

then asked the VE to further assume the hypothetical individual’s depression was of

such severity it would take the individual off task for at least three days out of a work

week and asked if that would change the VE’s answer in any way. (Id.) The VE

testified such an individual would not be able to perform any of the mail clerk, factory

packager or fast food worker positions. (Id.)

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D. The ALJ’s Findings

In his written decision, the ALJ concluded Plaintiff had the severe impairments of

depression and generalized anxiety disorder. (R. 407.) He determined Plaintiff did not

have an impairment or combination of impairments that met or equaled the Listings. 

(R. 407-08.) The ALJ further concluded Plaintiff had the RFC to perform light work

except he was limited to low stress, simple and unskilled work with one, two or three

step instructions; can only lift ten pounds frequently and twenty pounds occasionally;

can stand, stand and walk for six hours in an eight hour work day; should avoid frequent

ascending and descending of stairs as well as other hazards in the workplace. (R.

409.) Plaintiff was also restricted to a relatively clean work environment; cannot climb

and can only balance, stoop, kneel, crouch or crawl occasionally; and is only capable of

remembering and carrying out simple job instructions. (Id.) 

The ALJ concluded Plaintiff was unable to perform any of his past relevant work. 

(R. 415.) The ALJ further concluded, considering the Plaintiff’s age, education, work

experience and residual functional capacity, there were jobs which existed in significant

number in the national economy Plaintiff could have performed through the date last

insured of December 31, 2007. (R. 416.) In support of this conclusion, he cited the

VE’s testimony at Plaintiff’s hearing that a hypothetical individual with Plaintiff’s

vocational profile could perform the positions of mail clerk, factory packager and fast

food worker. (Id.) He thus concluded Plaintiff had not been under a disability from April

28, 2004, the alleged disability onset date, through December 31, 2007, Plaintiff’s date

last insured. (R. 417.)

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Case 1:10-cv-00203-MP-GRJ Document 23 Filed 12/14/11 Page 16 of 26
IV. DISCUSSION

Plaintiff argues that the ALJ committed four errors in his written decision. Two of

the issues raised by Plaintiff are that the ALJ ignored the Plaintiff’s 70% Va disability

rating and that the ALJ erred in his treatment of Dr. Khalil Sakalla’s treating

psychologist’s opinion. Because the Court determines the ALJ erred in not giving

appropriate controlling weight to the opinion of Dr. Sakalla, a treating doctor, the Court

need not reach the other errors raised by Plaintiff. 

The Court will discuss first the ALJ’s error in not giving controlling weight to Dr.

Sakalla’s opinion and then briefly discuss Plaintiff’s argument that the ALJ erred by

ignoring the Plaintiff’s VA disability rating. The Court will conclude with a discussion of

whether remand for further proceedings or remand with directions that benefits be

awarded is the proper remedy. 

A. The ALJ’s Conclusion to Accord Little Weight to the Opinion of Dr.

Sakalla, A Treating Psychologist, Is Not Supported By Substantial

Evidence

Plaintiff contends the ALJ erred in failing to give appropriate weight to the

opinions expressed by Plaintiff’s treating psychologist, Dr. Khalil Sakalla. After carefully

examining the record and the written decision of the ALJ the Court concludes that

substantial evidence does not support the ALJ’s conclusion to accord little weight to the

opinion of Dr. Sakalla, a treating psychologist, who treated Plaintiff more than fifteen

times during a three year period. Rather, the substantial evidence of record including

Dr. Sakalla’s own progress notes and the progress notes of Plaintiff’s treating

psychiatrists at the VA support Dr. Sakalla’s opinions. 

It is well-established that substantial or considerable weight must be given to the

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opinion, diagnosis and medical evidence of a treating physician unless “good cause” is

shown to the contrary. If a treating physician's opinion on the nature and severity of a 23

claimant's impairments is well-supported by medically acceptable clinical and laboratory

diagnostic techniques, and is not inconsistent with the other substantial evidence in the

record, the ALJ must give it controlling weight. The ALJ may discount a treating 24

physician's opinion or report regarding an inability to work if it is unsupported by

objective medical evidence or is wholly conclusory. Where a treating physician has 25

merely made conclusory statements, the ALJ may afford them such weight as is

supported by clinical or laboratory findings and other consistent evidence of a

claimant's impairments.26

The Department of Veterans Affairs based its continuation of Plaintiff on 70%

disability rating in June 2008 on Medical Source Statement and Mental Impairment

Questionnaire forms completed by Dr. Sakalla, Plaintiff’s treating psychologist. (R. 308-

316.) In his written decision, the ALJ reviewed Dr. Sakalla’s opinions expressed in the

two medical source statements. (R. 414.) The ALJ , however, gave little weight to Dr.

Sakalla’s opinions as reflected in those forms because the ALJ found the opinions were

Crawford v. Commissioner of Social Security, 363 F. 3d 1155, 1159 (11 Cir. 2004) (citing

23 th

Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.1997))(“W e have found ‘good cause’ to exist where the

doctor’s opinion was not bolstered by the evidence, or where the evidence supported a contrary finding.

W e have also found good cause where the doctors’ opinions were conclusory or inconsistent with their

medical records.”). See also Edwards v. Sullivan, 937 F.2d 580, 583-584 (11 Cir. 1991); Sabo v.

th

Commissioner of Social Security, 955 F. Supp. 1456, 1462 (M.D. Fla.1996); 20 C.F.R. § 404.1527(d).

20 C.F.R. § 404.1527(d)(2).

24

Edwards, 937 F.2d at 584 (ALJ properly discounted treating physician's report where the

25

physician was unsure of the accuracy of his findings and statements).

Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir.1986); see also Schnorr v. Bowen, 816

26

F.2d 578, 582 (11th Cir.1987).

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not supported by Dr. Sakalla’s own progress notes and were not consistent with the

progress of the treating psychiatrist at the VA. Specifically, the ALJ found: 

“Dr. Sakalla’s opinion is not supported by his own progress notes or the

progress notes of his psychiatrist at the Veteran’s Administration. If Dr.

Sakalla’s opinion was founded, the claimant would not be able to leave

the house or perform any activities. Progress notes show his mood okay. 

He would have some ups and downs with his anxiety, however, it had

been noted on several occasions that his medication regimen was helpful

with no side effects. In fact, Dr. Sakalla’s progress notes show that the

claimant’s memory and concentration were unimpaired. There is no

evidence of episodes of decompensation as found by Dr. Sakalla.” 

(R. 415.) In support of his decision to accord little weight to Dr. Sakalla’s opinion, the

ALJ relied upon the opinions of the two non-examining state agency psychologists. (R.

415.) Both state agency psychologists – neither of whom examined, tested or

personally evaluated Plaintiff – concluded that Plaintiff had mild restrictions in his

activities of daily living, moderate limitations in his social functioning, mild to moderate

deficiencies in concentration, persistence and pace and no episodes of

decompensation. (R. 129-45, 235-52.) The ALJ also relied upon the state agency

psychologists’ opinions in concluding Plaintiff did not meet any of the Listings at Step

Three of the sequential analysis. (R. 407-09.)

The ALJ’s decision to give little weight to Dr. Sakalla’s treating psychologist

opinion was not supported by substantial evidence in the record. Despite the ALJ’s

conclusion to the contrary, the progress notes from Plaintiff’s visits to both Dr. Sakalla

as well as his appointments with his psychiatrists at the VA supported the opinions

expressed by Dr. Sakalla in the medical source statements. 

Dr. Sakalla’s own progress notes are consistent with the opinions expressed in

his medical source statements. Dr. Sakalla had the longest longitudinal history of any

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of Plaintiff’s treating medical professionals, having seen Plaintiff no fewer than 15 times

between October 2005 and June 2008, when he authored the medical source

statements. (R. 308.) While there is some passing notation of improvement in the

progress notes, the overall record of Plaintiff’s symptoms as reflected in the progress

notes evidence that Plaintiff’s symptoms actually worsened over the course of his three

year treatment by Dr. Sakalla. (R. 309.) 

For example, at his first meeting with Dr. Sakalla in October 2005 the progress

notes reflect that Plaintiff “appeared in distress” over his “discomfort level and feelings

of anxiety/phobia.” Three years later in 2008, Plaintiff’s mood had declined to such a

degree that Plaintiff could not even participate in a session with Dr. Sakalla despite all

his ongoing treatment. (R. 184-85, 328, 340-41.) 

Further, Dr. Sakalla’s progress notes reflect that Plaintiff was not able to take

care of basic life activities like appropriate grooming. The notes from many visits reflect

that Plaintiff had minimal hygiene or as Dr. Sakalla described Plaintiff appeared

“unkempt with poor hygiene.” (R. 164, 317, 363-64.) The record also reflects that Dr.

Sakalla wrote two letters to school authorities in which Dr. Sakallla stated Plaintiff’s

depression and social anxiety “often impact his daily functioning and prevent him from

pursuing social activities including work and/or school.” (R. 165, 318.) In short, Dr.

Sakalla’s progress notes contain observations, findings and conclusions – during a

three year period of time – supportive of the opinions expressed by Dr. Sakalla in the

medical source statements.

Contrary to the statement of the ALJ, the progress notes from Plaintiff’s visits to

his treating psychiatrists at the VA also support Dr. Sakalla’s opinions in the medical

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source statements. 

Dr. Gamberino, Plaintiff’s treating psychiatrist at the VA from October 2004 to

March 2006, assigned Plaintiff GAF scores ranging between 45 and 57 and wrote

numerous times that Plaintiff “suffered from extreme impairment socially and

occupationally.” (R. 166-67, 180-81, 185-95, 200, 209-12.) The progress notes from

Dr. Hodgin, Plaintiff’s treating psychiatrist from May 2006 to May 2007, while reflecting

some benefit from medications, nonetheless, report that Plaintiff’s improvement was

only slight. Notably, during this period of time Dr. Hodgin consistently assessed

Plaintiff’s GAF at 45. (R. 157-58, 162-64, 357-59, 369-70.) Accordingly, contrary to the

finding by the ALJ, the progress notes from Plaintiff’s treating psychiatrists support the

conclusion that Plaintiff’s symptoms were significant and consistently resulted in GAF

scores in the 40's 

The ALJ observed that “If Dr. Sakulla’s opinion was founded, the claimant would

not be able to leave the house or perform any activities.” This conclusion obviously is

derived from Dr. Sakalla’s opinion that Plaintiff had extreme limitations with maintaining

social functioning. However, even assuming this opinion was inconsistent with the

progress notes, Both Dr. Sakalla’s progress notes and the opinions from the treating

psychiatrists demonstrate serious or marked difficulties in maintaining social

functioning. Marked difficulties in maintaining social functioning in combination with

marked restrictions of activities of daily living and frequent deficiencies in concentration,

persistence and pace are more than sufficient to support the functional limitations noted

by Dr. Sakalla. Rather than according Dr. Sakalla’s opinions with little weight, the ALJ

should have given Dr. Sakalla’s opinions appropriate weight in assessing Plaintiff’s

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RFC. Because the ALJ failed to accord appropriate weight to Dr. Sakalla’s opinions

that Plaintiff had at least marked difficulties in activities of daily living and frequent

deficiencies in concentration, persistence and pace – and completely discounted Dr.

Sakalla’s opinion that Plaintiff had significant difficulties in maintaining social functioning

– the ALJ’s evaluation of Plaintiff’s RFC was flawed. Because the RFC was flawed the

hypothetical questions posed to the VE were not supported by substantial evidence. 

Accordingly, this cause should be remanded to the Commissioner to give proper

weight to Dr. Sakalla’s opinions as expressed in the medical source statements. The

ALJ can then conduct the appropriate evaluation at Step three to determine whether

Plaintiff met a Listing and if not to then evaluate Plaintiff’s RFC at step four of the

sequential analysis. the appropriate analyses at Steps Three and Four. 

B. Plaintiff’s VA Disability Rating

Because the case is due to be remanded, the Court will address the issue of the

appropriate weight to be given to Plaintiff’s 70% VA disability rating. Plaintiff contends

the ALJ gave this rating little or no weight. Upon remand, the ALJ should accord great

weight to the VA’s disability great weight, as required by law.

The ALJ reviewed the Plaintiff’s VA disability rating as part of his finding that

Plaintiff’s allegations of a disabling impairment were not totally credible. Specifically,

the ALJ found: “Though the Veteran’s Administration has granted a 70% service

connected disability rating due to his mental disorder, the Social Security Administration

is not bound by any other agencies in determining disability. Social Security has its own

rules and regulations in regards to disability.” (R. 415.)

The Commissioner and the VA are indeed guided by different standards in

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determining whether a claimant or veteran is disabled. Social Security regulations

define 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 has lasted or can be expected to last for a continuous period of not less than

twelve months. The impairment must be severe, making a plaintiff unable to do her 27

previous work, or any other substantial gainful activity which exists in the national

economy. 

28

On the other hand, the pertinent VA regulations provide “Total disability will be

considered to exist when there is present any impairment of mind or body which is

sufficient to render it impossible for the average person to follow a substantially gainful

occupation. Total disability may or may not be permanent.” Thus, being deemed

29

disabled by the VA does not necessarily mean one is also disabled for Social Security

purposes.

As the Commissioner points out, Social Security regulations make clear the

Commissioner is not bound by another agency’s determination of a disability.30

Relevant Eleventh Circuit precedent, however, mandates that while the decisions of

other agencies are not binding the Commissioner must give decisions by other

42 U.S.C. §§ 416(i), 423(d)(1); 20 C.F.R. § 404.1505 (2005).

27

42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511.

28

38 C.F.R. § 3.340(a)(1).

29

See 20 C.F.R. §§ 404.1504; 416.904 (“A decision by any nongovernmental agency or any other

30

governmental agency about whether you are disabled or blind is based on its rules and is not our decision

about whether you are disabled or blind. W e must make a disability or blindness determination based on

social security law. Therefore, a determination made by another agency that you are disabled or blind is

not binding on us.”).

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agencies – such as the VA -- great weight Accordingly, on remand the ALJ should 31

carefully evaluate the VA’s June 2008 continuation of Plaintiff on 70% disability and

give appropriate weight to the VA’s 70% disability rating in determining whether Plaintiff

is disabled for Social Security purposes. To the extent that the ALJ determines that the

VA disability rating should not be given great weight he should articulate specific

reasons supported by substantial evidence in the record to support that decision.

C. Remand For Further Proceedings Is the Appropriate Remedy

Having determined that the ALJ erred by not according controlling weight to Dr.

Sakalla’s opinions the Court must determine whether the case should be remanded for

further proceedings or should be remanded with directions that benefits be awarded. In

his brief Plaintiff asks the Court to remand with directions to the Commissioner to find

Plaintiff disabled and grant his application for disability insurance benefits. The Court,

however, concludes remand to the Commissioner for further proceedings is the

appropriate remedy.

Remand is the appropriate remedy in this case because the ALJ will be required

to make findings at step three and step four of the sequential analysis after according

appropriate weight to the opinion of Dr. Sakalla. Decisional authority from the Eleventh

Circuit also supports the conclusion that the proper remedy where an ALJ fails to make

an adequate determination of the weight to be given to a treating physician’s opinion is

to remand the case to the Commissioner so that the ALJ can evaluate properly the

Brady v. Heckler, 724 F.2d 914, 921 (11 Cir. 1984)(“‘Although the V.A.’s disability rating is not

31 th

binding on the Secretary of Health and Human Services, it is evidence that should be given great

weight.’”)(quoting Olson v. Schweiker, 663 F.2d 593, 597 n.4 (5 Cir. 1981)).

th

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treating physician’s opinion in light of the appropriate weight. This approach is 32

consistent with the Supreme Court’s observation in INS v. Ventura that a court

reviewing the decision of an administrative agency may not “‘conduct a de novo inquiry

into the matter being reviewed and reach its own conclusions based on such an

inquiry’” but that “‘the proper course, except in rare circumstances, is to remand to the

agency for additional investigation or explanation.’”33

After the ALJ has given appropriate weight to Dr. Sakalla’s opinion because the

ALJ will be required to make a finding to determine whether Plaintiff meets the listing

requirements at Step Three, and if not, to evaluate Plaintiff’s RFC at Step Four – and

because it would be wholly inappropriate for this Court to engage in factfinding – 

remand to the Commissioner for further proceedings is the appropriate remedy. 

V. RECOMMENDATION

In view of the foregoing, it is respectfully RECOMMENDED that pursuant to

Sentence Four of 42 U.S.C. § 405(g) the decision of the Commissioner should be

REVERSED AND REMANDED to the Commissioner for further proceedings so that

the ALJ can accord proper weight to the opinion of the treating psychologist, Dr. Khalil

Sakalla, Ph.D; accord appropriate weight to the VA’s June 2008 70% disability rating;

See, e.g., Johns v. Bowen, 821 F.2d 551, 557 (11th Cir.1987); Mason v. Bowen, 791 F.2d 1460

32

(11th Cir.1986); Lawton v. Commissioner of Social Sec. 431 Fed. Appx. 830, 835 (11 Cir. 2011)(per

th

curiam)(“Accordingly, rather than broadly accepting the doctors' opinions as true, we will remand to the

agency so that it can make a determination in the first instance of the proper weight to be afforded to

those opinions.”). See, contra. MacGregor v Bowen, 786 F.2d 1050, 1053 (11 Cir. 1986) (suggesting

th

reversal for payment of benefits is the appropriate remedy when the Commissioner fails to explain the

weight afforded to a claimant’s treating physician.)

INS v. Ventura, 537 U.S. 12, 16 (2002)(quoting Florida Power & Light Co. v. Lorion, 470 U.S.

33

729, 744 (1985) and SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).

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and to conduct such further proceedings that the Commissioner deems appropriate. 

IN CHAMBERS in Gainesville, Florida, on December 14, 2011.

s/ Gary R. Jones

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written objections to the

proposed findings and recommendations within 14 days after being served with a copy of

this report and recommendation. A party may respond to another party’s objections within

14 days after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.

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