United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION ADOPTING ORDER REPORT AND
RECOMMENDATION AS MODIFIED AND REVERSING THE DECISION OF THE
E. SCHREIER, UNITED STATES DISTRICT JUDGE.
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.
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
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.").
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)).
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.
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.
Commissioner disputes several legal conclusions in the report
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 ...