United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION & ORDER
TIMOTHY L. BROOKS JUDGE
before the Court is the Report and Recommendation (Doc. 21)
("R & R") of the Honorable Erin L. Setser, United
States Magistrate Judge for the Western District of Arkansas.
The R & R advises the Court to affirm the administrative law
judge's ("ALJ") decision to deny social
security disability benefits to Plaintiff Ismael Lobos. Lobos
filed an Appeal Brief (Doc. 18) on November 30, 2015, Colvin
filed an Appeal Brief (Doc. 19) a month later, and Lobos
filed a Reply (Doc. 20) on January 11, 2016. The Magistrate
Judge issued her R & R on April 1, 2016, and Lobos filed his
Objections (Doc. 22) on April 18, 2016. For the reasons
stated herein, the Court DECLINES TO ADOPT the R & R, and
REMANDS the case to the ALJ for further consideration
consistent with this Order.
Magistrate Judge aptly sets forth the procedural and factual
background of the case in the R & R, see Doc. 21, pp. 1-8,
and it need not be fully recounted here. In short, Lobos
suffers from a myriad of conditions, the most serious of
which are diabetes and hypertension. For many years prior to
November of 2011, Lobos was employed by Cargill, Inc. as a
poultry line worker. Initially, his job consisted of deboning
poultry. Towards the end of his tenure at Cargill, however,
he was transferred to gizzard cutter-a position that is
apparently less strenuous than poultry deboner. On November
3, 2011, Cargill terminated Lobos after issuing him three
previous written warnings because his performance level did
not meet expectations. Lobos filed his application for
disability benefits on December 14, 2011, and an
administrative hearing was held by ALJ Burton on April 29,
2013. On August 2, 2013, ALJ Starr issued a written decision
denying Lobos's claim. The Appeals Council denied
Lobos's request for a review on November 4, 2014, and he
filed his Complaint (Doc. 1) in this Court on January 6,
Appeal Brief sets out five objections to the ALJ's
decision, but this Opinion only needs to focus on one:
Lobos's argument that the ALJ erroneously found that he
was capable of performing his past relevant work. In
adjudicating a claim for disability insurance benefits, an
ALJ must follow a five-step sequential evaluation process
mandated by the Social Security Act's implementing
regulations. See 20 CFR 404.1520(a)(4). Relevant to
this Opinion is the fourth step in that process, which
requires the ALJ to assess a claimant's "residual
functional capacity" ("RFC") to determine
whether he can still perform his "past relevant
work." Id. at (a)(4)(iv). 20 CFR 404.1545(a)(1)
describes the RFC assessment as follows:
Your impairment(s), and any related symptoms, such as pain,
may cause physical and mental limitations that affect what
you can do in a work setting. Your residual functional
capacity is the most you can still do despite your
limitations. We will assess your residual functional capacity
based on all the relevant evidence in your case record.
regulations define "past relevant work" as
"work that you have done within the past 15 years, that
was substantial gainful activity, and that lasted long enough
for you to learn to do it." 20 CFR 404.1560(b)(1).
concluded that Lobos's RFC was consistent with the
ability to perform light work. (Doc. 1-2, p. 15). Then, based
on a vocational expert's testimony that poultry deboning
is classified in the Dictionary of Occupational Titles as
light work, he concluded that Lobos's RFC allowed him to
perform his past relevant work. Id. at 16. It is
this conclusion with which the Court disagrees.
Court is mindful of the deferential nature of its review. As
the R & R accurately stated, its role "is to determine
whether the Commissioner's findings are supported by
substantial evidence on the record as a whole." (Doc.
21, p. 8 (citing Ramirez v. Barnhart, 292 F.3d 576,
583 (8th Cir. 2002))). "Substantial evidence is less
than a preponderance, but enough so that a reasonable mind
might find it adequate to support the conclusion."
Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir.
2001). "In determining whether existing evidence is
substantial, we consider evidence that detracts from the
Commissioner's decision as well as evidence that supports
it." Young v. Apfel, 221 F.3d 1065, 1068 (8th
determining Lobos's RFC, the written decision by ALJ
Starr recited Lobos's medical history, claimed
impairments, and credibility in tremendous detail. However,
when the decision turned to the second half of step four of
the evaluation process- determining whether a claimant's
RFC allows him to perform his past relevant work-its analysis
was practically bare. The ALJ's decision simply compared
Lobos's categorized RFC, "light work, " to his
past relevant work's equivalent categorization, and drew
a conclusion based on that comparison. (Doc. 1-2, p. 16).
While this sort of formulaic approach may suffice in some
cases, it does not in this one. This is so for two reasons.
the record contains incredibly strong evidence that Lobos
could not perform his past relevant work. In fact, Lobos was
terminated from his position at Cargill because he could
not perform the work. (Doc. 23, p. 240 (notice of
termination indicating three prior warnings for performance
issues, and stating "[f]ailure to meet performance
expectations is resulting in termination")). Prior to
his termination, moreover, Lobos was transferred from his
previous position of poultry deboner to the apparently less
strenuous position of gizzard cutter. (Doc. 23, pp. 50-51).
Since Lobos was terminated for being incapable of performing
the easier gizzard-cutting position, it was unreasonable to
conclude-without explanation-that he was capable of deboning
poultry, even if the latter is categorized as light work.
and related to the categorization of poultry deboning as
light work, is the vocational expert's testimony at the
April 29, 2013 hearing. That testimony establishes that
poultry deboning is "light work" in name only.
Q: Most of the jobs [at the poultry processing plants],
especially handling knives and that sort of a thing, is that
something that you would ordinarily expect that they would
employ people up into their 50's and beyond or so they-is
it something that-it's classified as light, but the
repetitiveness of it and the constancy of standing, is it
fairly physically difficult work?
A: Yes, it is. It's, it's very repetitive, fast paced
and it, it does require good hand and eye coordination,
particularly if you would have, if a hypothetical person had
a visual issue, that would affect their pace and their, their
tempo of being able to do that work and ...