# Jackson v. District of Columbia Department of Employment Services

> District of Columbia Court of Appeals · September 4, 2008 · 955 A.2d 728

URL: https://www.frixlaw.com/law-library/cases/9704017

## Case

- **Full name:** Linda D. JACKSON, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent and Washington Metropolitan Area Transit Authority, Intervenor
- **Court:** District of Columbia Court of Appeals
- **Decided:** September 4, 2008
- **Citations:** 955 A.2d 728; 2008 D.C. App. LEXIS 383; 2008 WL 4065782
- **Precedential status:** Published
- **Opinion:** Concurrence by Nebeker
- **Judges:** Ruiz, Thompson, Nebeker
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9704017

## Opinion text

NEBEKER, Senior Judge,
concurring:
I agree that the ALJ’s conclusions do not “flow rationally from the facts.” Georgetown Univ. Hosp. v. D.C. Dep’t of Employment Servs., 929 A.2d 865, 869 (D.C.2007). As the opinion of the court points out, the ALJ’s order is internally inconsistent. The ALJ bases her conclusion that Dr. Yousafs testimony is entitled to limited weight on the ground that petitioner had not provided him with a fulsome medical history. Yet, the ALJ fails to consider and reconcile the fact that during his deposition, Dr. Yousaf is informed of petitioner’s medical history and reaffirms his diagnosis after being informed of her history.
In light of this inconsistency, substantial evidence does not support the ALJ’s findings. A “reasonable mind” could not find the record adequate to support the ALJ’s conclusion, Giles v. D.C. Dep’t of Employment Servs., 758 A.2d 522, 524 (D.C.2000), particularly since the treating physician’s opinion is preferred over that of a medical expert retained for purposes of litigation. Hisler v. D.C. Dep’t of Employment Servs., 950 A.2d 738 , 746 n. 9 (D.C.2008). While the ALJ may reject the opinion of the treating physician, she must give “specific and legitimate reasons for doing so.” *736 Mexicano v. D.C. Dep’t of Employment Servs., 806 A.2d 198, 205 (D.C.2002) (citing Olson v. D.C. Dep’t of Employment Servs., 736 A.2d 1032, 1041 (D.C.1999)). Because those reasons are inconsistent with the record in this case, remand is proper. Upchurch v. D.C. Dep’t of Employment Servs., 783 A.2d 623, 628-29 (D.C.2001). 1 Accordingly, I join in the opinion of the court vacating and remanding.
. For example, in Kralick v. D.C. Dep’t of Employment Servs., 842 A.2d 705, 711 (D.C.2004), this court remanded an agency decision because the rejection of the treating physician’s testimony was "faulty.” In Kralick , the agency discredited the treating physician's opinion because it was not the most recent opinion, which was factually incorrect. Id. In Mexicano, 806 A.2d 198 , this court reversed an agency ruling of non-compensability where its reasons for rejecting the treating physician's diagnosis were "not supported by the record.” Id. at 205-06 . The agency discounted the treating physician’s diagnosis because it was not based on valid assumptions concerning the employee’s medical history. However, the record demonstrated that the treating physician was aware of the salient aspects of the claimant’s medical history. Id. at 206 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9704017. Public record. Not legal advice.