UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________ 

)

AMANDA MAGEE, )

)

Plaintiff, )

)

v. ) Case No. 17-cv-01922 (APM)

)

NANCY A. BERRYHILL, )

)

Defendant. )

_________________________________________ )

MEMORANDUM OPINION

I. INTRODUCTION

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. 

II. BACKGROUND

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
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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. 

III. LEGAL STANDARD

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 
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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). 

IV. DISCUSSION

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. 

A. 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 

 1 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. 
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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 findsthe 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, 
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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 
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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 

on remand. 
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B. 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 

wrote:

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 
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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 
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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 

rule. 
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V. CONCLUSION

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