United States District Court, E.D. Pennsylvania
J. PAPPERT, J.
Berg seeks judicial review of the Commissioner of Social
Security's denial of her application for Supplemental
Security Income under Title XVI of the Social Security Act.
The Court referred the case to Magistrate Judge Elizabeth T.
Hey for a Report and Recommendation. (ECF No. 18.) Upon
careful consideration of Berg's Statement of Issues in
Support of Request for Review (ECF No. 14), the
Commissioner's Response (ECF No. 17), Berg's Reply
(ECF No. 19), Judge Hey's R. & R. (ECF No. 20),
Berg's Objections (ECF No. 21), the Commissioner's
Response (ECF No. 23) and the Administrative Record (ECF No.
11),  the Court overrules Berg's objections
and adopts the R. & R. denying her request for review and
affirming the Commissioner's decision.
applied for Supplemental Security Income on May 18, 2010,
alleging disability beginning on April 19, 2010.
(Administrative Record (“R.”) 310-316.) She was
forty-nine years old when she filed her application.
(Id. at 310.) Berg did not finish high school or
obtain her GED, but completed the tenth grade. (Id.
at 57, 339.) Berg worked in general labor at various
temporary agencies from approximately 1998 to 2001, but never
worked anywhere on a full-time basis for more than three
months. (Id. at 58, 339.) She now lives with her 18
year old son, Michael Brown. (Id. at 56.)
initially sought SSI for impairments that limit her ability
to work, including angina, high blood pressure, hepatitis C,
diabetes, a bad liver and asthma. (Id. at 338.)
Berg's application was initially denied by the Social
Security Administration on October 28, 2010. (Id. at
165-169.) She requested a hearing before an
Administrative Law Judge, which was held on May 10, 2012.
(Id. at 40, 95.) Berg, represented by counsel,
testified at the hearing, as did her oldest son and an
impartial vocational expert. (Id. at 92-143.) She
testified to additional impairments including pain in her
hips, legs, knees, elbows and hands, obesity, vision
problems, and mental health conditions including depression
and anxiety. (Id. at 98, 101, 104, 106, 108, 112,
23, 2012, the ALJ issued an unfavorable decision.
(Id. at 145-56.) Berg requested review, and on
November 20, 2013, the Appeals Council remanded her
application to an ALJ for an additional hearing.
(Id. at 160-163.) The Appeals Council instructed the
ALJ to further develop evidence regarding Berg's mental
impairment and obtain the services of a medical expert for an
evaluation. (Id. at 162-63.) The Appeals Council
also instructed the ALJ to perform an evaluation as to what
effects, if any, the claimant's diabetes and obesity had
on her ability to perform basic work activities.
(Id. at 161-162.)
15, 2015, a different ALJ held a hearing in which Berg,
represented by counsel, her son, and an impartial vocational
expert again testified. (Id. at 48-89). On December
3, 2015, the ALJ issued a decision that was in part favorable
to Berg. (Id. at 29-47.) At step one, the ALJ
determined that Berg had not engaged in substantial gainful
activity since April 19, 2010. (Id. at 35.) At step
two, the ALJ found that she has several severe physical and
mental impairments, including: trochanteric bursitis, mild,
multi-level degenerative disc disease, morbid obesity,
recurrent major depressive disorder with psychotic features,
generalized anxiety disorder, and social anxiety disorder.
(Id. at 35-36.) The ALJ noted that while medical
records indicate Berg suffered from other impairments,
including type 2 diabetes, elevated liver levels,
hypertension and asthma, these impairments would have no more
than a minimal impact on her ability to perform basic work
activities and therefore were non-severe. (Id. at
36.) At step three, the ALJ determined that her impairments,
either alone or in combination, did not meet the severity of
one of the impairments listed in 20 C.F.R. pt. 404, subpt. P,
app. 1. (Id. at 26-27.)
four, the ALJ found that since April 19, 2010, Berg had the
residual functional capacity (“RFC”) to:
[P]erform light work as defined in CFR 416.967(b) except she
is limited to occasional walking and standing, 6 hours in an
8-hour day. The claimant is limited to occasional postural
maneuvers such as balancing, stooping, kneeling, crouching
crawling and climbing ramps/stairs; with no climbing of
ladders/ropes/scaffolds. The claimant must be afforded an
option to sit and stand during the workday, 1-2 minutes every
20 minutes or so. Further, the claimant is limited to simple,
routine tasks, not performed in a fast-paced production
environment, involving only simple work-related decisions and
in general, relatively few workplace changes. The claimant
must work primarily with objects rather than people, and no
jobs requiring teamwork or interaction with the public. The
claimant is limited to occupations which require no
mathematical calculations such as cashier or teller work; and
generally limited to 1-2 step tasks learned by demonstration.
(Id. at 37.) After considering Berg's age,
education, work experience, residual functional capacity and
the vocational expert's testimony, the ALJ determined
that prior to April 17, 2015 jobs existed in significant
numbers in the U.S. economy that Berg could perform.
(Id. at 40.) However, the ALJ found that beginning
on April 17, 2015-the date the ALJ found her age category
changed to an individual of advanced age because Berg was
54.5 years old-there were no jobs that existed in significant
numbers in the national economy that Berg could perform.
(Id. at 40-42) (citing 20 C.F.R. § 416.963).
appealed the ALJ's decision. The Appeals Council granted
her request for review and on July 28, 2017 issued a ruling
on the merits that was less favorable to Berg. (Id.
at 1-11.) The Appeals Council adopted the ALJ's finding
at steps one, two, three and four of the sequential
evaluation process, including an identical RFC assessment.
(Id. at 4, 6, 8.) The Appeals Council did not,
however, agree with the ALJ's findings regarding the date
that Berg's age category changed to an individual of
advanced age. The Appeals Council determined that Berg's
age category changed on October 16, 2015, the day before her
55th birthday. (Id. at 8-9.) The Appeals Council
found accordingly that Berg became disabled on October 16,
2015, not before.
filed her Complaint in this Court on October 3, 2017, seeking
judicial review of the Appeals Council's decision.
(Compl., ECF No. 3.) She argued that (1) the Appeals Council
erred when it modified the ALJ's determination as to when
she entered an older age category and (2) the Appeals
Council's decision was not supported by substantial
evidence because its RFC determination did not incorporate
Berg's moderate difficulties with concentration,
persistence, and pace. On June 18, 2018, the Court referred
the case to Magistrate Judge Hey for a report and
recommendation. On April 30, 2019, Judge Hey recommended ...