Vazquez Rivera v. Astrue

Filing 19

ORDER affirming the SSA Commissioner's final order, by Judge Lewis T. Babcock on 1/14/2016. (ebuch)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE

Civil Case No. 14-cv-00102-LTB
ULRICO VAZQUEZ RIVERA,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.
______________________________________________________________________________
ORDER
_____________________________________________________________________________
Plaintiff, Ulrico Vazquez Rivera, appeals from the Social Security Administration
(“SSA”) Commissioner’s final decision denying his application for disability insurance benefits,
filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-433. Jurisdiction is proper
under 42 U.S.C. § 405(g). Oral arguments will not materially aid in the resolution of this appeal.
After consideration of the parties’ briefs, as well as the administrative record, I AFFIRM the
SSA Commissioner’s final order.
I. STATEMENT OF THE CASE
Plaintiff seeks judicial review of the Commissioner’s decision denying his March 2011
application for Social Security disability insurance benefits, claiming he became disabled on
January 27, 2011. [Administrative Record (“AR”) 136] The application was initially denied at
the administrative level. [AR 84-97] An Administrative Law Judge (“ALJ”) subsequently
conducted a hearing on June 19, 2012, and issued a written ruling on July 23, 2012, denying
Plaintiff’s application on the basis that Plaintiff was not disabled because he was capable of

performing his past relevant work as a Hot Bed Operator (Step Four). [AR 38-45] On November
7, 2012, the SSA Appeals Council denied Plaintiff’s request for reconsideration, making the
denial final for the purpose of judicial review. [AR 12-17] Plaintiff timely filed his complaint
with this court seeking review of the SSA Commissioner’s final decision.
II. FACTS
Plaintiff was born on May 16, 1949, and was 61 years old on his onset date and 63 years
old at the time of the ALJ’s decision. [AR 53, 135-36] He has a college education. [AR 53, 194]
His prior work was in steel mills. [AR 185, 239] Plaintiff alleges that he became disabled on
January 27, 2011 due to right knee problems, shoulder problems, and a sciatic nerve condition.
[AR 193]
The medical records indicate that Plaintiff injured his knee during a 2010 work accident,
and underwent right knee meniscal surgery. [AR 455] Plaintiff was released from treatment by
the worker compensation insurance doctor, Dr. Bradley, in January 2011, with the restriction that
he only lift or carry less than 20 pounds, with no kneeling or crouching. [AR 454, 538] Then, in
March 2011, he underwent surgery for chronic subacromial bursitis on his left shoulder. [AR
506-7] An independent medical examination by Dr. Nagamani, and a functional capacity
assessment by Dr. LoGalbo, both in August 2011 also found Plaintiff to be a maximum medical
improvement and concurred with Dr. Bradley’s assessed light restrictions. [AR 529, 534-40]
At the hearing, Plaintiff testified that he could sit for an hour or two at a time, could stand
for three hours at most, and could walk five blocks. [AR 58-59] He could lift 20 to 25 pounds.
[AR 59] He indicated that he drives, teaches a bible study class and tries to do some stretching.
[AR 62-3] He also testified that his wife does most of the household chores, although he helps
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with grocery shopping and doing the dishes and dusting occasionally, although using the vacuum
cleaner hurts his shoulders. [AR 70-1]
III. LAW
A five-step sequential evaluation process is used to determine whether a claimant is
disabled under Title II of the Social Security Act which is generally defined as the “inability to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C.§ 1382c(a)(3)(B);
see also Bowen v. Yuckert, 482 U.S. 137, 137, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987).
Step One is whether the claimant is presently engaged in substantial gainful activity. If
he is, disability benefits are denied. See 20 C.F.R. § 404.1520. Step Two is a determination of
whether the claimant has a medically severe impairment or combination of impairments as
governed by 20 C.F.R. § 404.1520(c). If the claimant is unable to show that his impairment(s)
would have more than a minimal effect on his ability to do basic work activities, he is not
eligible for disability benefits. Step Three then assesses whether the impairment is equivalent to
one of a number of listed impairments deemed to be so severe as to preclude substantial gainful
employment. See 20 C.F.R. § 404.1520(d). If the impairment is not listed, the claimant is not
presumed to be conclusively disabled. Step Four then requires the claimant to show that his
impairment(s) and assessed residual functional capacity (“RFC”) prevent him from performing
work that he has performed in the past. If the claimant is able to perform his previous work, the
claimant is not disabled. See 20 C.F.R. § 404.1520(e)&(f). A claimant bears the burden of
proving disability prior to the expiration of his insured status. Hawkins v. Chater, 113 F.3d
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1162, 1164 (10th Cir.1997). Finally, if the claimant establishes a prima facie case of disability
based on the four steps discussed, the analysis proceeds to Step Five where the Commissioner
has the burden of proving that the claimant has the RFC to perform other work in the national
economy in view of his age, education and work experience. See 20 C.F.R. § 404.1520(g).
IV. ALJ’s RULING
The ALJ first determined that Plaintiff had not engaged in substantial gainful activity
since his alleged onset date of January 27, 2011 (Step One). [AR 40] The ALJ next determined
that Plaintiff had the severe impairments of: 1) arthritic changes and bursitis of the left shoulder,
status-post surgical repair; and 2) right knee meniscal tear, status-post surgical repair (Step
Two). [AR 40] However, because the ALJ determined that he did not have a impairment or
combination of impairments that meets or equals a listed impairment (Step Three), the ALJ went
on to assess Plaintiff’s RFC. [AR 41]
The ALJ evaluated the evidence and found that Plaintiff retained the RFC to perform
light work – as defined in 20 C.F.R. §404.1567(b) – with the following additional limitations: he
should only occasionally push or pull with the right lower extremity and left upper extremity; he
should avoid overhead reaching with the left upper extremity; he should never climb ladders,
rope or scaffolds; and he should only occasionally crouch, kneel or crawl (Step Three). [AR 41]
In light of Plaintiff’s RFC, the ALJ found that he was able to perform his past relevant work as a
Hot Bed Operator, as the job is generally performed, as this work does not require the
performance of work activities precluded by his RFC (Step Four). [AR 44] Thus, the ALJ
denied Plaintiff’s application because he was not under a disability, as defined by the SSA, at
Step Four of the sequential evaluation process. [AR 45] On review, the Appeals Council “found
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no reason” to reconsider the ALJ’s decision. [AR 12]
V. STANDARD OF REVIEW
My review here is limited to whether the final decision is supported by substantial
evidence in the record as a whole and whether the correct legal standards were applied.
Williamson v. Barnhart, 350 F.3d 1097, 1098 (10th Cir. 2003); White v. Barnhart, 287 F.3d 903,
905 (10th Cir. 2001); Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000). Review of the
factual findings is to determine whether they “are based upon substantial evidence and
inferences reasonably drawn therefrom; if they are so supported, they are conclusive upon [this]
reviewing court and may not be disturbed.” Trujillo v. Richardson, 429 F.2d 1149, 1150 (10th
Cir. 1970). “Substantial evidence is more than a scintilla, but less than a preponderance; it is
such evidence that a reasonable mind might accept to support the conclusion.” Campbell v.
Bowen, 822 F.2d 1518, 1521 (10th Cir. 1987)(citing Richardson v. Perales, 402 U.S. 389, 401,
91 S.Ct. 1420, 28 L.Ed.2d. 842 (1971)). I may not re-weigh the evidence or substitute my
judgment for that of the ALJ. See Casias v. Secretary of Health & Human Servs., 933 F.2d 799,
800 (10th Cir. 1991); Jozefowicz v. Heckler, 811 F.2d 1352, 1357 (10th Cir. 1987); Cagle v.
Califano, 638 F.2d 219, 220 (10th Cir. 1981). With regard to the application of the law, reversal
may be appropriate when the SSA Commissioner either applies an incorrect legal standard or
fails to demonstrate reliance on the correct legal standards. See Winfrey v. Chater, 92 F.3d 1017,
1019 (10th Cir. 1996).
VI. APPEAL
On appeal, Plaintiff does not challenge the ALJ’s determination of his impairments or his
RFC. Rather, Plaintiff contends that the ALJ erred when ruling that he was capable, at Step Four
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of the sequential process, of performing his relevant past work as a Hot Bed Operator as it is
customarily or generally performed in the national economy.
At the hearing, the ALJ asked Plaintiff about his past work. Plaintiff indicated that his
background, beginning in 1970, was working as a CNC Machinist. [AR 57] In 1997 or 1998 he
worked in the tool mill at the CF&I Steel Mill doing lathe machining – specifically, threading
pipe. [AR 67] When the steel workers went on strike, he went back to school and then, in 20002001, worked as a CNC Machinist at Mico Manufacturing. [AR 67-8] In 2002 he went back to
work at CF&I, after the strike ended, where he returned to the tool mill doing lathe machining
for a year, and then worked in the rail mill until he was hurt on the job in 2010. [AR 69]
Plaintiff described his job in the rail mill as part labor/part writing, and indicated that he
performed the job as follows:
You were collecting all the stock, and you put in on beds. ... Where the cranes
would come and pick it up. You have to put strips on them. And you keep
records. You have to keep records for that. . . . Walking all the time. [AR 69]
Upon questioning by his attorney, Plaintiff further described this job as:
. . . it was putting strips on the rails. I had to cut rails test, which was three
footers, out of each end of the - which is where - presently by - 150 pounds or
more. So, I have to use . . . a jack . . . That you have to carry into a box. Not
carrying, but you know, wheel them to that box. And so, then we have to collect
all the data from the rails that would come to us, keep track of it. Record it. And
we could watch the equipment, make sure that the equipment was functioning
right. We walked and inspect. We grease. We would do greasing. [AR 72]
Plaintiff also testified that he would be on his feet almost 12 hours per day, except for lunch.
[AR 73] Although it apparently was not clearly articulated, the transcript of the hearing
indicates that Plaintiff defined this job as being a “Half-Bit” Operator. [AR 69]

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Martin L. Rauer then testified as a vocational expert. [AR 126-27] Based on Plaintiff’s
testimony, and the record, Mr. Rauer testified that two job titles apply to Plaintiff’s vocational
background: 1) a Hot Bed Operator (Dictionary of Occupational Titles “DOT” Code: 613.685034) which has a SVP of 4 and a light exertional requirement; and 2) a CNC (Computerized
Numerical Control) Operator or, in this case, Machinist (DOT Code: 600.280-002) which has a
SVP of 7 and a medium exertional requirement. [AR 75-6] Mr. Rauer acknowledged that both
jobs as actually performed by Plaintiff, based on his testimony, had a heavy to very heavy
exertional requirement. [AR 75-6] The ALJ asked Mr. Rauer to assume an individual with the
same age, education and past work experience as Plaintiff, with the same assessed RFC (could
only lift or carry up to 20 pounds frequently and 25 pounds occasionally; stand or walk, with
normal breaks, for a total of six hours; sit, with normal breaks, for a total of more than six hours;
could kneel, crawl, climb ladders, rope or scaffolds only occasionally; should avoid overhead
reach with non-dominant upper extremities; and could push and pull, within the weight
restrictions given, but that the right lower extremity and left/non-dominant upper extremity
would be limited to only occasionally) and if that individual could return to his past work. [AR
76-7] Mr. Rauer responded: “Your honor, in careful review of the parameters and descriptors in
the DOT of the particular job, I believe it is, consistent with the hypothetical provided by the
Court. And that would be the hotbed operator, but not as actually performed.” [AR 77] He
further indicated that, according to the DOT, it instead would be as usually performed in the
general economy. [AR 77]
In her order, the ALJ noted that the vocational expert testified that Plaintiff’s past work is
described in the DOT as a Hot Bed Operator (DOT 613.685-034) “which is generally performed

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at the light exertional level.” [AR 44] The ALJ further ruled that Plaintiff performed this work
within the past fifteen years, he performed it long enough for him to learn the requirements of
the job, and, according to Plaintiff’s earnings record, his wages were consistent with a finding of
substantial gainful activity. [AR 44] The ALJ’s order ruled that:
The vocational expert testified, and the [ALJ] concurs, that [Plaintiff] can return
to his past relevant work as generally performed. Pursuant to SSR 00-4p, the
vocational expert’s testimony is consistent with the information contained in the
DOT, though the undersigned has also relied upon his extensive experience in
vocational evaluation, job placement, and job site evaluation.
In the opinion of the [ALJ], the initial limitations propounded to the vocational
expert, as discussed above in this decision and also set forth in the decisional
findings, contain all inferences regarding [Plaintiff’s] impairments and the degree
of severity thereof that are raised by the objective and credible evidence of record.
In response to the questions posed by the [ALJ], the vocational expert testified
that [Plaintiff] could return to [his] past relevant work. [AR 44-5]
As a result, based on the testimony of the vocational expert Mr. Rauer, the ALJ found
that Plaintiff has been capable of returning to his past relevant work and has not been under a
disability, as defined by the SSA, at Step Four of the sequential evaluation. [AR 45]
A claimant capable of performing past relevant work is not disabled within the meaning
of the Social Security Act. 20 C.F.R. §404.1520(e). To prove that he cannot return to his past
relevant work, a claimant must show that he can perform neither “[t]he actual functional
demands and job duties of a particular past relevant job,” nor “[t]he functional demands and job
duties of the occupation as generally required by employers throughout the national economy.”
Andrade v. Secretary of Health & Human Servs., 985 F.2d 1045, 1050 (10th Cir. 1993)(quoting
Social Security Ruling (SSR) 82-61). A claimant must demonstrate that he is unable to return to
his former type of work, not just to his prior job. Id. at 1052. Thus, when there is substantial

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evidence in the record to indicate that a claimant may not be able to meet the requirements of his
former work as he allegedly performed it, the ALJ may still find substantial evidence exists to
indicate he can return to a past occupation as it is generally performed. Id.
It is not disputed that in this case Plaintiff provided sufficient evidence that he could not
physically perform his past work as it was actually performed. Rather, Plaintiff asserts that the
ALJ’s determination that he could perform his past work as it is generally performed constituted
error. Specifically, Plaintiff asserts that the ALJ failed to address the inconsistencies between
his testimony about the job he performed and Mr. Rauer’s testimony that his past work was
classified as a Hot Bed Operator (DOT Code: 613.685-034) and as a CNC (Computerized
Numerical Control) Operator/Machinist (DOT Code: 600.280-002).
In addressing this argument, I first reject the Plaintiff’s assertion that the ALJ’s failure to
address the CNC Machinist classification identified by the vocational expert, and instead in
concentrating solely on the Hot Bed Operator job, “reveals her underlying bias” toward Plaintiff.
The law is clear that as long as a Plaintiff can perform any of his or her past relevant work
positions, that is sufficient to support a finding at Step Four. See e.g. Wells v. Colvin, 727 F.3d
1061, 1074 (10th Cir. 2013)(ruling that even if three of four jobs ALJ found the claimant capable
of performing were not past relevant work, finding that claimant was capable of one past
relevant work position was sufficient to support ALJ’s determination that claimant was not
disabled at Step Four). Although it appears that Plaintiff could not perform the job of a CNC
Machinist as it is generally performed, the ALJ properly determined that Plaintiff could perform
his past relevant work as a Hot Bed Operator, as discussed below.

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In addition, to the extent that Plaintiff argues that the ALJ erred in failing to find that his
prior work constitutes substantial gainful work that exists in the national economy, such
requirement is not the law. Barnhart v. Thomas, 540 U.S. 20, 25, 29–30, 124 S.Ct. 376, 157
L.Ed.2d 333 (2003)(ruling that the Commissioner need not establish that a prior job exists in
significant numbers in the national economy to find that job constitutes prior relevant work); see
also Wells v. Colvin, supra, 727 F.3d at 1075.
Lastly, I address Plaintiff’s primary argument that the ALJ erred in determining that his
past relevant work was properly classified as the position of Hot Bed Operator. Plaintiff cites to
Social Security Ruling 00-04p which states that where there is an apparent unresolved conflict
between the testimony of the vocational expert and that the DOT classification, the ALJ is
required to elicit a reasonable explanation before relying on the vocational expert’s testimony.
See SSR 00-04p (noting that “[o]ccupational evidence provided by a [vocational expert]
generally should be consistent with the occupational information supplied by the DOT”);
Haddock v. Apfel, 196 F.3d 1084, 1087 (10th Cir. 1999)(holding that “before an ALJ may rely
on expert vocational evidence as substantial evidence to support a determination of
nondisability, the ALJ must ask the expert how his or her testimony as to the exertional
requirement of identified jobs corresponds with the Dictionary of Occupational Titles, and elicit
a reasonable explanation for any discrepancy on this point”); see also Hayden v. Barnhart, 374
F.3d 986, 990 (10th Cir. 2004).
Plaintiff argues that his description of his job duties and the DOT job classification of
Hot Bed Operator involved “very significant differences” that were not resolved by the ALJ. In
so doing, Plaintiff does not specifically assert that his past work at issue here was as a “Half-Bit
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Operator” and not as a Hot Bed Operator as set forth in the hearing transcript. I note that my
research has not revealed the existence of such job title either in the general national economy or
contained in the DOT. And, furthermore, my review of the DOT job duties for a Hot Bed
Operator under the DOT classification 613.685-034 are consistent with the duties as selfreported by Plaintiff in his testimony at the hearing. [AR 69-72] The occupation of Hot Bed
Operator, under DOT classification 613.685-034, is as follows:
Tends equipment that transfers rolled steel shapes, such as blooms, billets, rails, and
pipe from processing lines to cooling beds: Presses controls to raise roll stop, start
conveyor, and position material opposite specified cooling bed. Pulls levers to start
pusher straightedge and dog-chain (series of projections) that shoves material off
conveyor line onto cooling bed. Moves controls of dog-chain to pull cooled material
from bed onto cradle or transfer car. Records number and type of object cooled. May
assist other workers in making roll and hot saw blade changes and in repairing,
replacing, or adjusting mill equipment.

DOT classification 613.685-034, 3991 WL 684990. Plaintiff’s hearing testimony was that his job
was “collecting all the stock, and you put in on beds. . . . Where the cranes would come and pick

it up. You have to put strips on them.” [AR 69] And that “it was putting strips on the rails. I
had to cut rails test, . . . I have to use . . . a jack . . .[to] wheel them to that box. And so, then we
have to collect all the data from the rails that would come to us, keep track of it. . . . And we
could watch the equipment, make sure that the equipment was functioning right. We walked and
inspect.” [AR 72] In addition, Plaintiff completed a handwritten “Claimant’s Work
Background” form in April of 2012 that indicated he performed many “operator jobs” at the steel
mill between 1976 and 2011, and that the duties performed included “recorder operator of hot
bed and stocking bed,” which involved taking “testing rail by cutting with torch to 32 inches. Put
them on cord. Pull them to about 500 [inches] . . . set them on a table” and “stack rails” for crane

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pick up, keeping records, greasing, cleaning and visually checking all equipment. [AR 239] The
SSA forms utilized as part of Plaintiff’s application for benefits describes this position as
follows: “I work with rails I cool them and process them down the line. We stack them and
make lifts. We send them to the overhead cranes.” [AR 186 - Work History Report Form SSA 3369; AR 195 Disability Report - Adult Form SSA-3368] Plaintiff’s description of his job duties
contained in the record was consistent with the DOT duties of a Hot Bed Operator.
Most importantly, the record consistently refers to Plaintiff’s position at the time he
stopped working as a Hot Bed Operator, and my review of the record reveals no reference to a
“Half-Bit” Operator position. For example, a Functional Capacity Evaluation ordered by the
worker’s compensation doctor designates Plaintiff’s job title at the time he was hurt at his
employment as “Hot Bed Operator.” [AR 333, 367, 370] The “Welcome” form at the worker’s
compensation medical provider indicates, via a handwritten fill-in-the-blank, that Plaintiff’s
occupation is “Hot Bed Operator” [AR 380], and a Medical History and Knee History form for
Plaintiff’s knee surgery also contains blanks for occupation that is filled in with “Hot Bed
Operator.” [AR 550, 552] Plaintiff’s initial and follow up visits with the worker’s compensation
medical providers likewise indicates that Plaintiff presents as a “61-year-old hotbed operator
who had a roll fall down on his knee.” [AR 398, see also 392, 386, 451, 455] An Independent
Medical Examination also sets forth Plaintiff’s occupation as “Hotbed operator.” [AR 534] The
SAA forms indicate that his only job title, in the past 15 years, was Hot Bed Operator at a rail
mill. [AR 185, 194] And, in addition, Plaintiff’s initial Disability Determination – without any
clarification in the record – defines his position at Hot Bed Operator. [AR 93]

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Instead, the only difference identified by Plaintiff is that his past jobs at the steel mill
included heavy exertional requirements, and the Hot Bed Operator classification required only a
light exertional requirement. This difference was addressed by both the vocational expert and
the ALJ as how the job was actually performed by Plaintiff, compared to how the job is
generally performed. Therefore, because the hypothetical question posed to the vocational
expert included the applicable age, education, work experience and RFC findings, the vocational
expert’s response constituted substantial evidence to support the ALJ’s conclusion that claimant
was capable of performing his past relevant work as performed in the national economy. See
Townsend v. Chater, 91 F.3d 160 (10th Cir. 1996). The record clearly indicates that the ALJ
properly utilized the opinion of the vocational expert along with all of the other evidence to
make a step-four determination. Id.
Finally, because I have determined that the ALJ did not err at Step Four of the sequential
process when concluding that Plaintiff is not disabled because he can perform his past relevant
work as it is generally performed, I do not reach Plaintiff's contention that the ALJ erred at Step
Five of the sequential process. 20 C.F.R. § 404.1520(a)(4); Williams v. Bowen, 844 F.2d 748,
750 (10th Cir. 1988)(noting that “[i]f a determination can be made at any of the steps that a
claimant is or is not disabled, evaluation under a subsequent step is not necessary”). As a result,
I reject the Plaintiff's contention that the ALJ made Step Five findings at the hearing, but that
those findings were not reflected in the written decision. The record is clear that to the extent the
ALJ asked questions at the hearing that would be relevant if she went on to Step Five, it does not
reveal that she made any such findings – binding or otherwise – on the record. [AR 78-81]

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ACCORDINGLY, I AFFIRM the SSA Commissioner’s final order.

Dated: January

14 , 2016, in Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE

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