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Berg v. Berryhill

United States District Court, E.D. Pennsylvania

July 26, 2019

NANCY BERG, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          GERALD J. PAPPERT, J.

         Nancy 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), [1] the Court overrules Berg's objections and adopts the R. & R. denying her request for review and affirming the Commissioner's decision.



         Berg 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.)

         Berg 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, 116, 118.)

         On July 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.)

         On July 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.[2] (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.)

         At step 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).

         Berg 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.

         Berg 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 ...

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