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Christi S. v. Berryhill

United States District Court, D. South Dakota, Southern Division

July 26, 2018

CHRISTI S., Plaintiff,




         Plaintiff, Christi S., appealed the denial of her application for social security benefits by the Social Security Administration. Docket 1. The case was referred to United States Magistrate Judge Veronica Duffy under 28 U.S.C. § 656(b)(1)(B) for a report and recommendation. Docket 19. On February 15, 2018, Magistrate Judge Duffy submitted the report and recommendation for disposition of this case to the court and recommended that the Commissioner's decision be reversed and remanded for further proceedings. The Commissioner filed a timely objection. Docket 23. For the reasons set forth herein, Magistrate Judge Duffy's report and recommendation is adopted as modified below.


         Christi S. filed her application for benefits on September 9, 2014, alleging disability since July 6, 2014, due to post-concussion syndrome, headaches, face, head and neck pain, and numbness in hands and feet. AR 80, 218, 220, 247, 255, 260. Christi S.'s claim was initially denied and denied again upon reconsideration. AR 116, 127, 133. She requested and was given a hearing before an Administrative Law Judge (ALJ). AR 140. The ALJ determined that Christi S. was not disabled. AR 26. The Appeals Council denied Christi S.'s timely request for review. AR 1. Thus, the ALJ's unfavorable decision became the Commissioner's final decision.


         This court's review of a magistrate judge's decision is governed by 28 U.S.C. § 636(b)(1). The court reviews de novo any objections that are timely made and specific. See Fed. R. Civ. P. 72(b) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.").

         An ALJ's decision must be upheld if it is supported by substantial evidence in the record as a whole. 41 U.S.C. § 405(g). "Substantial evidence is 'less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion.'" Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009) (quoting Maresh v. Barnhart, 438 F.3d 898 (8th Cir. 2006)); see also Richardson v. Perales, 402 U.S. 389, 401 (1971) (reasoning that substantial evidence means "more than a mere scintilla"). In determining whether substantial evidence supports the ALJ's decision, the court considers evidence that both supports and detracts from the ALJ's decision. Moore v. Astrue, 623 F.3d 599, 605 (8th Cir. 2010) (internal citation omitted). As long as substantial evidence supports the decision, the court may not reverse merely because substantial evidence exists in the record that would support a contrary outcome or because the court would have decided the case differently. Krogmeierv. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002) (citing Woolfv. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)).

         The court reviews the Commissioner's decision to determine if an error of law has been committed, which may be a procedural error, the use of an erroneous legal standard, or an incorrect application of law. Collins v. Astrue, 648 F.3d 869, 871 (8th Cir. 2011) (citations omitted). Issues of law are reviewed de novo with deference accorded to the Commission's construction of the Social Security Act. See Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992).

         The court has reviewed the detailed fact section of Magistrate Judge Duffy's report and recommendation. No. objections to the facts have been filed by either party and the facts appear to accurately reflect the record. As a result, this court adopts the facts as set forth in pages 2 through 26 of the magistrate judge's report and recommendation.


         The Commissioner disputes several legal conclusions in the report and recommendation.

         I. Step Two

         Magistrate Judge Duffy found that the ALJ improperly failed to incorporate Christi S.'s asserted impairments of post-concussion syndrome and headaches at step two. The Commissioner contends that this was harmless error because the ALJ's analysis did not stop at step two, but rather continued through step five. The Commissioner asserts that at steps four and five the ALJ properly accounted for Christi S.'s headaches and post-concussion syndrome when the Residual Functional Capacity (RFC) was formulated. In support of this argument, the Commissioner cites precedent from the Sixth Circuit Court of Appeals: "When an ALJ considers all of a claimant's impairments in the remaining steps of the disability determination, an ALJ's failure to find additional severe impairments at step two ...

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