Jolly v. Berryhill
Filing
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ORDER re 6 Complaint filed by Terri Lee Jolly -- by Judge J Richard Creatura. The Court ORDERS that this matter be AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g).(SH)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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TERRI LEE JOLLY,
Plaintiff,
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CASE NO. 3:17-CV-05935-JRC
ORDER ON PLAINTIFF’S
COMPLAINT
v.
NANCY A. BERRYHILL, Deputy
Commissioner of Social Security for
Operations,
Defendant.
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This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and Local
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Magistrate Judge Rule MJR 13. See also Consent to Proceed Before a United States Magistrate
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Judge, Dkt. 3. This matter has been fully briefed. See Dkt. 12, 15.
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After considering and reviewing the record, the Court concludes that the ALJ did not err
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in his step four determination that plaintiff could return to past relevant work. The ALJ properly
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relied on vocational expert testimony that plaintiff’s past work could be categorized under the
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DOT as “receptionist.” The ALJ’s reliance on vocational expert testimony was in accordance
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ORDER ON PLAINTIFF’S COMPLAINT - 1
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with SSR 82-61, which states that if a disability claimant can perform her past work as generally
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performed in the national economy, a finding of “not disabled” is directed.
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This Court also finds that the ALJ did not improperly reject the conclusory vocational
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opinion supplied by plaintiff. Finally, the ALJ did not rely on his own lay opinion, but properly
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relied on vocational expert testimony that plaintiff’s past work was not a composite job.
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Accordingly, this matter is affirmed pursuant to sentence four of 42 U.S.C. § 405(g).
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BACKGROUND
Plaintiff, TERRI LEE JOLLY, was born in 1954 and was 57 years old on the alleged
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disability onset date of October 15, 2011. See AR. 151-57, 158-63. Plaintiff graduated from high
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school and took some college classes. AR. 39-40. Plaintiff has work history as an administrative
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assistant and receptionist. AR. 41-42, 184-95. Plaintiff’s last full time position ended when the
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organization was downsized. AR. 42.
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According to the ALJ, plaintiff has at least the severe impairments of “history of right hip
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total replacement; left hip degenerative changes; and degenerative disc disease of the lumbar
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spine. (20 CFR 404.1520(c) and 416.920(c)).” AR. 22.
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At the time of the hearing, plaintiff was living in an apartment with her fiancé. AR. 38.
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PROCEDURAL HISTORY
Plaintiff’s applications for disability insurance benefits (“DIB”) pursuant to 42 U.S.C. §
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423 (Title II) and Supplemental Security Income (“SSI”) benefits pursuant to 42 U.S.C. §
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1382(a) (Title XVI) of the Social Security Act were denied initially and following
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reconsideration. AR. 75, 76, 77, 78. Plaintiff’s requested hearing was held before Administrative
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ORDER ON PLAINTIFF’S COMPLAINT - 2
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Law Judge Rudolph M. Murgo (“the ALJ”) on May 11, 2016. AR. 34-58. On June 3, 2016, the
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ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled
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pursuant to the Social Security Act. AR. 17-33.
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In plaintiff’s Opening Brief, plaintiff raises the following issue: “The ALJ’s step 4
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finding that plaintiff can return to ‘past relevant work’ despite her RFC is contrary to law; at a
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bare minimum, the ALJ erred when he relied upon his own lay analysis to reject vocational
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expert evidence.” Dkt. 12, p. 1.
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STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of
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social security benefits if the ALJ's findings are based on legal error or not supported by
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substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th
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Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).
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DISCUSSION
Whether the ALJ erred in his step four finding that plaintiff is not disabled because
she can return to past relevant work.
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Plaintiff alleges that the ALJ erred when he found that plaintiff was not disabled because
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she could return past relevant work as a receptionist. Dkt. 12.
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At step-four in the evaluation process, the ALJ must determine whether or not a
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claimant’s impairment(s) prevents the claimant from doing past relevant work. See 20 C.F.R. §
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404.1520(f). If the ALJ finds that the claimant has not shown an incapability of performing past
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relevant work, the claimant is not disabled for social security purposes and the evaluation
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process ends. See id. Plaintiff bears the burden to establish the inability to perform past work.
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ORDER ON PLAINTIFF’S COMPLAINT - 3
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See Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987); see also Tackett v. Apfel, 180 F.3d 1094,
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1098 (9th Cir. 1999) (footnote omitted).
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In her opening brief, plaintiff sets forth three specific arguments: a.) whether the ALJ
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erred in not finding that plaintiff’s past work was a composite job; b.) whether the ALJ erred in
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rejecting the vocational opinion of Ms. Santagati; and c.) whether the ALJ relied upon his own
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lay analysis to reject vocational evidence.
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a.) Whether the ALJ erred in finding that plaintiff’s past work was not a composite job.
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In the record, plaintiff reported that she performed past work as an administrative
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assistant and receptionist. AR. 184. She noted that her primary responsibilities were answering
phones, filing, data entry, customer service, and carrying boxes of paper. AR. 186.
SSR 82-61 gives two tests for determining whether a claimant retains the capacity to
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perform past relevant work. First, is whether claimant retains the capacity to perform the
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particular functional demands and job duties peculiar to an individual job as he or she actually
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performed it. Second, is whether claimant retains the capacity to perform the functional demands
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and job duties as ordinarily required by employers throughout the national economy. SSR 82-61,
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1982 LEXIS SSR 31, *3.
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The SSR also states that “it is understood that some individual jobs may require
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somewhat more or less exertion than the DOT description.” Id. at *4. When the claimant cannot
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perform the excessive functional demands that are required in the past relevant work, but can
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perform the functional demands as generally required by employers in the national economy, the
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ALJ should find the claimant to be “not disabled." Id.
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The ALJ may use either the “actually performed” test or the “generally performed” test to
determine whether a claimant can perform his past relevant work. Stacy v. Colvin, 825 F.3d 563,
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569 (9th Cir. 2016) (citing SSR 82-61, 1982 LEXIS SSR 31). Under the “actually performed”
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test, the ALJ evaluates a claimant’s past relevant work by consulting a “properly completed
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vocational report” and “the claimant’s own testimony” and assessing whether the claimant can
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perform her past job duties as she actually performed them. See Pinto v. Massanari, 249 F.3d
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840, 845 (9th Cir. 2001). By contrast, under the “generally performed” test, the ALJ consults the
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Dictionary of Occupational Titles (“DOT”) to determine whether the claimant can perform her
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past work as it is generally performed in the national economy. Stacy, supra, 825 F.3d at 569
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(citing SSR 82-61, 1982 LEXIS SSR 31).
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At the hearing, the ALJ consulted a vocational expert, Mr. Gaffney, to determine how to
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classify plaintiff’s past relevant work. AR. 53. Mr. Gaffney classified plaintiff’s work as
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“Receptionist DOT 237.367-038, sedentary, SVP 4, semiskilled." AR. 28, 53. The ALJ asked
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Mr. Gaffney whether plaintiff’s work could be classified as a composite job. AR. 53. Mr.
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Gaffney stated “not necessarily,” and clarified that plaintiff’s position as a receptionist was at the
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sedentary exertional level as described in the DOT, but at the medium exertional level as
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performed because plaintiff was required to lift boxes of paper. AR. 52-53. Mr. Gaffney further
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opined that while carrying boxes of paper is not necessarily required of a receptionist, it would
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not be unusual. AR. 53. Therefore, the ALJ followed the guidance of SSR 82-61 in determining
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that plaintiff could not perform the excessive functional demands that are required in the past
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relevant work but could perform the functional demands as generally required by employers in
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the national economy. SSR 82-61, 1982 LEXIS SSR 31, *4.
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Plaintiff argues that plaintiff’s past work should have been classified as a composite job
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and that the ALJ should have proceeded to step five of the sequential analysis. Dkt. 12, p.8-9.
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Plaintiff further states that when past relevant work is classified as a composite job a disability
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ORDER ON PLAINTIFF’S COMPLAINT - 5
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claimant must not be denied at step four unless the claimant can perform every task associated
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with the composite job. Id. A composite job contains “significant elements of two or more
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occupations, and as such, ha[s] no counterpart in the DOT.” SSR 82-61, 1982 WL 31387, at *2;
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see also, POMS DI § 25005.020(B), available athttps://secure.ssa.gov/poms.nsf/lnx/0425005020,
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last visited 09/21/2018. An ALJ must evaluate a composite job “according to the particular facts
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of each individual case.” SSR 82-61, 1982 WL 31387, at *2. Courts in this district have held
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that “when significant variation exists between a claimant’s description of her job and the DOT
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description of the job, it may be the result of a composite job.” Hams v. Carolyn, 2014 WL
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4168473, at *2 (W.D. Wash. Aug. 20, 2014) (citing SSR 82-61, 1982 WL 31387).
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Here, plaintiff has not established that her job was in fact a composite job. It does not
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appear that plaintiff’s past work contained “significant elements of two or more occupations.”
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SSR 82-61, 1982 WL 31387, at *2. The only element that could be an outlier is that plaintiff had
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to carry boxes of paper. However, Mr. Gaffney testified that carrying paper would not be an
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unusual task, generally, for a receptionist. AR. 53. At step four, plaintiff has the burden to prove
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that she cannot perform her past work, and she has not met that burden to prove that her past
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work was a composite job. See Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987); see also
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Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (footnote omitted).
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Therefore, the ALJ did not err when he determined that plaintiff could return to her past
relevant work as a receptionist.
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b.) Whether the ALJ erred in rejecting the vocational opinion of Ms. Santagati.
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Prior to the hearing plaintiff submitted her own vocational expert testimony from Ms.
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Santagati. AR. 243-46. Ms. Santagati opined that plaintiff’s position was a “composite job more
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accurately described by two DOT descriptions including office clerk DOT 209.56 – 010 [sic] and
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ORDER ON PLAINTIFF’S COMPLAINT - 6
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receptionist DOT 237.367 – 038.” AR. 243. The ALJ gave Ms. Santagati’s opinion little weight
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because she did not provide an adequate explanation for her opinion. AR. 28.
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Plaintiff argues that this was not a sufficient reason for rejecting Ms. Santagati’s opinion.
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Dt. 12, p. 10. The Court finds that the ALJ did not err in his determination that Ms. Santagati did
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not provide adequate explanation for her opinion. Ms. Santagati’s opinion that plaintiff’s past
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work is best categorized as a composite job is conclusory. Ms. Santagati explains the
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requirements of each position but does not explain why she believed it to be a composite job.
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AR. 243-244. Moreover, she does not state which requirements from plaintiff’s past work
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correspond with the positions she cited. Id. The ALJ must support his conclusions with
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substantial evidence, and it stands to reason that the ALJ cannot rely on a conclusory vocational
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opinion. See Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v.
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Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). Moreover, the ALJ did inquire of vocational expert
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Mr. Gaffney whether plaintiff’s past work was a composite job and, therefore, did not reject Ms.
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Santagati’s opinion without consideration. AR. 53. Notably, plaintiff concedes that the ALJ is
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not bound by Ms. Santagati’s opinion. Dkt. 12, p.10. Plaintiff also concedes that any vocational
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expert’s conclusion is not binding upon the ALJ. Id. Therefore, the ALJ did not improperly reject
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Ms. Santagati’s vocational opinion.
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c.) Whether the ALJ relied upon his own lay analysis to reject vocational evidence.
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Plaintiff also alleges that the ALJ erred when he rejected rebuttal vocational evidence
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based on his own lay evidence rather than seeking additional input from the vocational expert.
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Dkt. 12, p. 4. Plaintiff’s argument states that plaintiff would not be able to perform her past
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relevant work because she is unable to lift and carry a box of paper. The ALJ stated at the
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hearing that at his office if a receptionist needed to move a box of paper, they would ask
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someone to move it for them if they weren’t capable of doing it themselves. AR. 53. However,
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he did not rely on his own lay opinion, but also the opinion of the vocational expert, who
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testified that while it would not be unusual that carrying paper could be part of a receptionist’s
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job description, it would depend on the size of the office and the assigned job duties. AR. 53.
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In sum, the ALJ did not err in finding that plaintiff was capable of returning to her past
relevant work.
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CONCLUSION
Based on these reasons and the relevant record, the Court ORDERS that this matter be
AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g).
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JUDGMENT should be for DEFENDANT and the case should be closed.
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Dated this 25th day of September, 2018.
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A
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J. Richard Creatura
United States Magistrate Judge
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