MAGEE v. BERRYHILL
MEMORANDUM OPINION re: 6 Plaintiff's Motion for Judgment of Reversal and 8 Defendant's Motion for Judgment of Affirmance. Signed by Judge Amit P. Mehta on 01/25/2019. (lcapm3)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Case No. 17-cv-01922 (APM)
NANCY A. BERRYHILL,
Plaintiff Amanda Magee challenges an Administrative Law Judge’s (“ALJ”) decision
denying her Supplemental Security Income Benefits. She raises two errors. First, Plaintiff argues
that the ALJ improperly relied on contradictory evidence from a vocational expert. Second, she
maintains that the ALJ violated the “treating physician rule,” which requires judges to give
significant weight to a treating physician’s opinion. The court agrees with Plaintiff on her first
claim, but not her second. The ALJ relied on vocational expert testimony that appears to be
contradictory, and so the court remands to the agency on this limited issue. The court does not
agree, however, with Plaintiff’s challenge to the ALJ’s application of the treating physician rule.
The parties’ motions therefore are granted in part and denied in part.
Plaintiff is a 35-year-old living in Washington, D.C. On April 22, 2013, she filed an
application for Supplemental Security Income Benefits, alleging disability based on a diagnosis of
fibromyalgia. See Administrative Record, ECF Nos. 4-2 to 4-17 [hereinafter R.], at 15, 23, 849.
The Social Security Administration initially denied Plaintiff’s application on July 12, 2013, and
did so again on reconsideration on September 23, 2013. Id. at 23. On February 21, 2014, Plaintiff
appeared at a hearing in front of an Administrative Law Judge (“ALJ”), see id. at 23, who found
Plaintiff not disabled, see id. at 32.
Plaintiff then sought review in this District Court, where she found success. A magistrate
judge determined that the ALJ had failed to sufficiently develop the record with a mental health
consultative examination. Id. at 456–60. Her success was short-lived, however. On remand, even
taking account of Plaintiff’s mental health limitations, the ALJ denied Plaintiff’s claim for benefits,
finding that she was not disabled and that she could perform light, unskilled work. Id. at 396.
Relying on a vocational expert’s testimony, the ALJ concluded that there were jobs in the national
economy that Plaintiff could perform. Id. at 395–96.
Plaintiff filed this case on September 20, 2017. See Compl., ECF No. 1. On February 13,
2018, she filed a Motion for Judgment of Reversal. See Pl.’s Mot. for Judg. of Reversal, ECF No.
6 [hereinafter Pl.’s Mot.]; Pl.’s Mem. in Support of Pl.’s Mot., ECF 6-1 [hereinafter Pl.’s Mem.].
Defendant responded with a Motion for Judgment of Affirmance on April 30, 2018. See Def.’s
Mot. for Judg. of Aff. and Opp’n to Pl.’s Mot. for Judg. of Reversal, ECF No. 8 [hereinafter Def.’s
Mot.]. Those motions are ripe for consideration.
Under the Social Security Act, 42 U.S.C. § 405(g), individuals denied benefits may seek
review in a federal district court. “The court must uphold the Secretary’s determination if it is
supported by substantial evidence and is not tainted by an error of law.” Smith v. Bowen, 826 F.2d
1120, 1121 (D.C. Cir. 1986). Substantial evidence is “more than a mere scintilla”; it is “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations and quotations omitted). To determine
whether the Commissioner, acting through an ALJ, reached a decision supported by substantial
evidence, the court must give “careful scrutiny of the entire record.” Brown v. Bowen, 794 F.2d
703, 705 (D.C. Cir. 1986).
Plaintiff challenges two aspects of the ALJ’s decision. First, she asserts that the ALJ
improperly relied on contradictory testimony from the vocational expert. See Pl.’s Mem. at 7–11,
16–17. Second, she contends that the ALJ violated the treating physician rule by failing to give
proper weight to evidence from her treating physician, Dr. Sharon Dowell, a rheumatologist. Id.
at 11–16. 1 The court takes these issues in turn.
Vocational Expert’s Contradiction
The Commissioner has established a five-step process to determine disability. See 20
C.F.R. § 404.1520. Plaintiff’s contention concerning the ALJ’s reliance on the vocational expert’s
testimony pertains to step five, which places the burden on the Commissioner “to demonstrate that
the claimant is able to perform ‘other work’ based on a consideration of her ‘residual functional
capacity’ (RFC), age, education and past work experience.” Butler v. Barnhart, 353 F.3d 992, 997
(D.C. Cir. 2004).
In this case, the ALJ determined that the Commissioner had carried her burden at step five.
The ALJ found that Plaintiff had an RFC “to perform light, unskilled work as defined in 20 CFR
416.967(a) except sit/stand alternatively provided that she is not off task more than 10 percent of
the workday; use of a hand-held mechanically assistive device, namely a cane, used for walking
rarely; understand, remember, and carry out instructions that are for simple, routine tasks
In her initial motion, Plaintiff appeared to assert that the ALJ did not conduct a function-by-function analysis, see
Pl.’s Mem. at 5–6, but in her reply, Plaintiff clarifies that she “did not argue that the Administrative Law Judge had
failed to set forth a function-by-function assessment,” Pl.’s Opp’n to Def.’s Mot. for Judg. of Affirmance, ECF No.
11, at 4. For this reason, the court does not address the issue.
occasionally; make simple decisions occasionally; and no satisfaction of production pace.” R. at
390. Based on this RFC, the ALJ posed the following hypothetical to the vocational expert:
Assume that a hypothetical that has the same age, education, and
work experience as the claimant and who has the ability to do
sedentary work unskilled. Sit/stand alternatively provided that the
hypothetical claimant is not off task more than ten percent of the
work period . . . Ability to understand, remember, and carry out
instructions which are for simple and routine tasks occasionally;
ability to make simple decisions occasionally; ability to perform
work that does not require satisfaction of production pace. Are there
any jobs that such a hypothetical person can perform on a sustained
basis? And which jobs exist in significant numbers in the national
economy? At the prior hearing, you were asked that question. And
the answers you have were machine tender, grader, and bench
worker. Do your answers still stand?
R. at 426–27 (emphases added). The vocational expert asked the ALJ to clarify whether he meant
to predicate his hypothetical on “light, unskilled work,” instead of sedentary work. Id. at 427. The
ALJ acknowledged his error, and asked whether jobs exist for “light unskilled, all other factors
remain the same.” Id. The vocational expert testified that such jobs did exist in the national
economy and identified them. Id. at 427–28. Later, however, in response to questioning from
Plaintiff’s attorney, the vocational expert stated that, “it is my opinion that if the individual is off
task 20 percent of the workday or greater when compared to other employees performing the same
or similar job duties, at that point they are not employable.” R. at 430.
The court finds the expert’s testimony to be seemingly self-contradictory. The RFC finding
provided that Plaintiff would be able to “understand, remember, and carry out instructions that are
for simple, routine tasks occasionally” and “make simple decisions occasionally.” Occasionally
is a term of art in the disability context. It means “occurring from very little up to one-third of the
time.” Titles II & VXI: Determining Capability to do Other Work- the Medical-Vocational Rules
of Appendix 2, Social Security Ruling 83-10, at *5 (S.S.A. 1983). Given this accepted meaning,
the ALJ’s hypothetical asked whether employment existed for a claimant who had the “ability to
understand, remember, and carry out instructions which are for simple and routine tasks [very little
to up to one-third of the time]” and the “ability to make simple decisions [very little to up to onethird of the time].” R. at 426–27. The flip-side of that hypothetical assumes that a claimant would
not have had the ability to carry out instructions for simple and routine tasks and make simple
decisions two-thirds or more of the day. Notwithstanding such limitations, the vocational expert
affirmed that employment did exist in the national economy for a hypothetical claimant with the
same RFC as Plaintiff. Id. at 427. Yet, the vocational expert elsewhere testified that a person who
is off task 20 percent or more of the workday could not obtain employment. R. at 430. These two
pieces of testimony are hard to square with each other. A person who only “occasionally” has the
ability to understand, remember, and carry out simple instructions, and can only “occasionally”
make simple decisions, would be off task at least three times more than the 20-percent threshold
the expert testified would render a person unemployable. In reaching her final decision, the ALJ
did not recognize or reconcile this seeming contradiction in the vocational expert’s testimony.
Thus, the court cannot affirm the ALJ’s decision.
A court in the District of Maryland reached the same conclusion in strikingly similar
circumstances. In Benita Washington v. Commissioner, the ALJ described a hypothetical claimant
with an RFC to “understand, remember, and carry out instructions which are for simple and routine
tasks frequently.” Civil No. SAG-17-908, at *3 (D. Md. July 13, 2018) (emphasis added); see also
Pl.’s Opp’n, ECF No. 13; Copy of Benita Washington v. Commissioner, ECF No. 13-1. In the
disabilities context “frequently” means “occurring from one-third to two-thirds of the time.”
Social Security Ruling 83-10, at *6. The flip-side of the ALJ’s hypothetical, therefore, assumed
that the claimant would not have been able to understand, remember, and carry out instructions for
at least one-third of the time. Nonetheless, the vocational expert testified that work was available,
yet later stated that a claimant off task 20% of the time would not be employable. Civil No. SAG17-908, at *3. Based on these seemingly contradictory statements, the judge in Benita Washington
remanded for clarification.
Defendant’s sole response to the seemingly inconsistent expert testimony is that it is
Plaintiff’s burden to prove “at step four of the analysis ‘evidence that her impairments would
reduce her productivity by 20%.’” Def.’s Mot. at 16 (quoting Thompson v. Colvin, Civil No. TMD
13-3450, 2015 WL 1393562, at *7 (D. Md. Mar. 24, 2015)). That is a correct statement of the law
as far as it goes. But the issue here is a different one: Can a claimant who only “occasionally”
can carry out simple instructions and make simple decisions also remain on task 80% or more of
the time? The ALJ’s decision does not clearly answer that question.
The court does not mean to suggest that the RFC findings and the ultimate denial of
disability benefits are fatally inconsistent. For instance, a portion of the RFC provides that Plaintiff
could perform light, unskilled work “except sit/stand alternatively provided that she is not off task
more than 10 percent of the workday.” R. at 390. It may be that a person could be physically off
task up to 10% of the workday and be limited in decision-making and following instructions, yet
still be employable in the national economy. But it is not clear to the court how the 10 percent offtask threshold relates, if at all, to Plaintiff’s ability to “occasionally” follow instructions and make
decisions, and how those factors relate to the expert’s opinion that a person who is off task more
than 20% of the workday is unemployable. The ALJ will have to explain these apparent tensions
Treating Physician Rule
The court turns now to Plaintiff’s argument that the ALJ did not comply with the “treating
physician rule,” which provides that a treating physician’s report is “binding on the fact-finder
unless contradicted by substantial evidence.” Williams v. Shalala, 997 F.2d 1494, 1498 (D.C. Cir.
1993) (internal quotation marks and citation omitted). The rule recognizes that treating physicians
have greater familiarity with claimants and therefore their opinions are entitled to substantial
weight. See Butler, 353 F.3d at 1003. An ALJ, nonetheless, can reject a treating physician’s
opinion, but she must “explain [her] reasons for doing so” and justify it with substantial evidence.
Id.; see also Jones v. Astrue, 647 F.3d 350, 356 (D.C. Cir. 2011).
In this case, Plaintiff’s treating physician, Dr. Dowell, opined that Plaintiff could walk less
than one block without severe pain, sit thirty minutes at most, stand fifteen minutes at most, require
a ten-minute break every thirty minutes, and rarely carry more than ten pounds. See R. at 943–44.
The ALJ addressed these opinions and cited substantial evidence for rejecting them. The ALJ
The undersigned gives little weight to the opinions of the claimant’s
rheumatologist. In various forms dated February 2014 to September
2016, she opined that the claimant could not perform even sedentary
work. She included substantial sit/stand option, postural, off task,
and absenteeism limitations. She first wrote that the claimant’s
psychological symptoms would interfere with her ability to work 25
percent or more of the day but later assessed the claimant with
moderate limitation in all areas of basic mental functioning.
Throughout treatment notes, she also described the claimant as
unable to work. Nevertheless, the longitudinal record does not
contain any mobility or power deficits to evidence such extreme
exertional, disabling limitations. Though recommended from time
to time, there is no evidence of ongoing formal mental health
treatment. In fact, she has been cooperative with good eye contact
upon examination. Her memory, concentration, and alertness have
remained intact for the above cognitive abilities. Therefore, the
undersigned gives little weight to these opinions because despite a
treating relationship, they are inconsistent with the overall record
(Ex. 9F, 19F, 23F, 28F).
R. at 394. This statement explicitly acknowledges Dr. Dowell’s findings—“includ[ing] substantial
sit/stand option, postural, off task, and absenteeism limitations”—and explains why the ALJ
declined to follow them—“the longitudinal record does not contain any mobility or power deficits
to evidence such extreme exertional, disabling limitations.”
The ALJ spent a substantial portion of her opinion explaining why the longitudinal record
did not support Dr. Dowell’s conclusions. The ALJ looked to an April 2013 rheumatology
consultation, where Plaintiff “displayed intact motility, stability, or neurological markers,” and her
“initial blood work-up was negative.” R. at 391 (citing R. at 738–41). The ALJ also relied on a
June 2013 orthopedic appointment, where Plaintiff had “full range of motion without pain at the
extremes” and “there was no motor weakness.” Id. (citing R. at 243–44). In that appointment,
Plaintiff also “acknowledged relief with exercise.” Id. (citing R. at 244). The ALJ cited a February
2014 appointment with Dr. Dowell, where “[a] physical examination revealed no acute distress . .
. [and] her gait and station were normal.” Id. (citing R. at 1151–54). The record from that date
reflects that, “while [Plaintiff] had diffuse tenderness on examination, she managed normal range
of motion, stability, and motor signs.” Id. at 392 (citing R. at 1153).
There is more. The ALJ reviewed other medical examinations of Plaintiff, all of which
contradicted Dr. Dowell’s limitation findings. In September 2014, Plaintiff was released back to
primary care because “she was controlled on Motrin,” id. (citing R. at 1027); in March 2015,
Plaintiff complained of generalized pain, but “a physical examination was mostly unremarkable,”
id. (citing R. at 1155–58); in July 2015, “[Plaintiff] requested an ibuprofen refill and had no
complaints [and a] physical examination was entirely negative,” id. (citing R. at 1004–05); and in
September 2016, Plaintiff reported diffuse pain throughout her body, but “also acknowledged
symptomatic improvement with ibuprofren,” id. (citing R. at 1159). The ALJ also noted the
consultative examinations, which found that Plaintiff managed a normal gait, was able to walk on
her heels, and did not need assistive devices. Id. at 393 (citing R. at 51–63, 65–76). And, notably,
the ALJ also referred to Plaintiff’s ability to perform daily activities, such as taking personal care,
preparing simple meals, and shopping in stores independently. Id. at 393. Plaintiff also conceded
that she was capable of going out alone and caring for her son. Id. These findings provide
substantial evidence for the ALJ to have rejected Dr. Dowell’s opinion about Plaintiff’s exertional
limitations. See Page v. Berryhill, 688 Fed. App’x. 7, 9 (D.C. Cir. 2017) (“Because [the primary
physician’s] opinion that [Plaintiff] is unable to work was contradicted by substantial evidence in
the record . . . and because the ALJ explained why he chose not to credit [the primary physician’s]
opinion, the ALJ adhered to the relevant legal standards.”).
The court also finds no error in the ALJ’s rejection of Dr. Dowell’s opinion about Plaintiff’s
mental health. Dr. Dowell opined that Plaintiff struggled with short-term memory, simple
directions, social interactions, and confusion. R. at 944. Yet, as the ALJ pointed out, in other parts
of the record Dr. Dowell had noted that Plaintiff had moderate—as opposed to marked or
extreme—limitations in maintaining concentration and social functioning. Id. at 394; see id. at
1074, 1112, 1147. The ALJ also observed that Plaintiff never received ongoing mental health
treatment, although providers recommended it at times. Id. at 394. These observations by the ALJ
provided substantial evidence to reject Dr. Dowell’s mental health conclusions.
In sum, the court rejects Plaintiff’s contention that the ALJ violated the treating physician
Based on the foregoing, the court grants in part and denies in part the parties’ motions.
This matter is remanded to the Commissioner of the Social Security Administration for further
proceedings consistent with this memorandum opinion.
Dated: January 25, 2019
Amit P. Mehta
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?