Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Popken v. Astrue

United States District Court, District of Delaware

October 9, 2014

LAURIE A. POPKEN, Plaintiff,
MICHAEL J. ASTRUE, [1] Commissioner of Social Security, Defendant.



This action arises from the denial of the plaintiff Laurie Popken's ("Popken") claim for Social Security benefits under Titles II and XVI of the Social Security Act ("Act"). 42 U.S.C. §§ 401-433, 1381-1383(f). Popken filed for disability insurance benefits ("DIB") on March 7, 2007, claiming she became disabled on November 5, 2005. (D.I. 5 at 120, 125.) The Social Security Administration ("SSA") denied Popken's claims initially and on reconsideration. (Id. at 70-71, 74.) Popken thereafter requested an administrative law judge ("ALJ") rehearing, which took place on April 14, 2009. (Id. at 29-31.) At the hearing, Popken and an impartial vocational expert, Tony Malass provided testimony. (Id. at 31.)

The ALJ, Melvin Benitz, issued a written decision on June 29, 2009, denying Popken's benefit claims. (Id. at 13.) Popken requested a review of the ALJ's decision by the Social Security Appeals Council, which denied review on November 4, 2010. (Id. at 4.) Popken filed a timely appeal with the court on August 12, 2011. (D.L 1.) Presently before the court are the parties' cross-motions for summary judgment. (D.I. 9; D.L 12.) For the reasons that follow, the court will: (1) deny Popken's motion for summary judgment, and (2) grant the Commissioner's motion for summary judgment.


Popken was born on April 21, 1962. (D.L 5 at 120.) She attended high school and received her diploma. (Id. at 32, 177). At the time of her application for DIB on March 7, 2007, Popken was forty-four years old. ( Id. at 120, 125.) Her alleged disability dates back to November 5, 2005. (Id. at 120.) Popken was examined and treated by a number of medical professionals throughout her claim period, but only the ALJ's assessment of the opinions of Drs. Diehl, Leitman, Xing, and Ivins are disputed by the parties. (See D.L 10; D.L 13.)

A. Medical and Employment History

Popken worked as a cafeteria worker for the Brandywine School District from August 1999 to November 2005. (D.L 5 at 196.) While working and throughout most or all of the relevant claim period, she was obese. (See, e.g., Id . at 340.) Popken claims that she stopped working as a result of a fall which injured her right knee. (Id. at 34-35.) In January 2006, she was diagnosed with osteoarthritis of the right knee and underwent a total right knee replacement. (Id. at 350.) An October 2006 MRI of Popken's back showed significant degeneration and disc herniation. (Id. at 257-59.) She underwent a laminectomy and discectomy to treat these issues in March 2007. (Id. at 309.) Popken testifies to having suffered from irritable bowel syndrome and carpal tunnel syndrome throughout the claim period, but there is no treatment record of these conditions in the medical record.

B. Expert Opinions

i. Dr. Dichl

Dr. Kristine Diehl, Popken's primary care physician, treated her for a variety of acute and chronic illnesses including depression, for which she prescribed psychotropic medication. (See, e.g., Id . at 402-596.) Dr. Diehl noted on February 22, 2007, that Popken had abused pain medications and suffered from withdrawal as a result. (Id. at 517.) Despite the withdrawal and Popken's various ailments, Dr. Diehl opined that Popken had an alert mental status and an otherwise normal general outlook, including a normal gait. (Id.) While under Dr. Diehl's care for pain medication, Popken obtained several hundred prescription pain pills from multiple other doctors. (Id. at 657-771.)

On December 11, 2007, Dr. Diehl completed a physical RFC questionnaire in which she opined that Popken was disabled due to the constant. "5/10" pain Popken had reported. (Id. at 626-27.) Dr. Diehl described Popken's various conditions as including severe arthritis, a slow gait, and depression. (Id.) She gave Popken a prognosis of "poor" but remarked that Popken could tolerate moderate work stress. (Id.) Dr. Diehl noted that emotional factors did not contribute to the severity of Popken's symptoms or functional limitations. (Id.) ALJ Benitz accorded Dr. Diehl's opinion little weight in his findings, remarking that Dr. Diehl's treatment notes and Popken's pain reports to her were inconsistent with Dr. Lehman's treatment records. (Id. at 25.) The ALJ also considered Dr. Diehl's reports of Popken's drug abuse to cast doubt on Popken's credibility. (Id.)

ii. Dr. Leitman

Dr. Elliot Leitman, an orthopedist, treated Popken for her knee impairments beginning in 2005. (Id. at 368-401.) On October 21, 2005, he diagnosed her with osteoarthritis of the right knee and recommended total right knee replacement. (Id.) Dr. Leitman's notes following the surgery indicated that Popken's knee was healing well. (Id.) Popken reported left knee pain in March 2006, which she attributed to a June 2005 fall from her camper. (Id. at 373.) Dr. Leitman diagnosed Popken with left knee pain, probable degenerative meniscus tear, and pre-existing osteoarthritis of the left knee. (Id.) In June 2007, Dr. Leitman recommended surgical arthroscopy of Popken's left knee with debridement. (Id.) On November 15, 2007, Ms. Popken underwent arthroscopic surgery for her left knee. (Id. at 648) Popken continued to report left knee pain after the surgery and received regular injections. (Id. at 737-741.) In July 2008, Popken reported that her right knee was doing well. (Id.) Dr. Leitman found no effusion, though he diagnosed extensive, patellofemoral subluxation and recommended a patellofemoral arthroplasty. (Id.) In September 2008, Popken underwent full left knee arthroplasty and followup physical therapy. (Id. at 701-706.) In December 2008, Dr. Leitman recommended that Popken be limited to moderate physical activity. (Id. at 749.)

In February 2009, Popken reported to Dr. Leitman that her left knee was completely pain free, though she noted that her right knee bothered her with pain from stiffness when standing up after prolonged sitting. (Id. at 734.) Dr. Leitman opined that Popken seemed to have had a good result from the knee replacement surgery. (Id.) He found her gait to be normal and her right knee to demonstrate a full range of motion with no evidence of instability, effusion, or infection. (Id.) He found her left knee exam to be completely normal. (Id.)

iii. Dr. Xing

Dr. Selina Xing, a pain management specialist, began treating Popken on October 20, 2008, for her complaints of knee and leg pain secondary to low back pain. (Id. at 712-14.) Dr. Xing noted that Popken had "trouble ambulating and climbing stairs" but that the pain was relieved with medication. (Id.) Dr. Xing gave Popken a prognosis of "[t]otal disability secondary to ambulation dysfunction." (Id.) She recommended a regimen of pain medications along with a urine drug screen. (Id.) Dr. Xing continued to treat Popken on a monthly basis. (Id. at 751-56.) On November 11, 2008, Dr. Xing diagnosed Popken with lumbar strain secondary to gait dysfunction related to knee pain after Popken complained of right knee pain affecting her back. (Id. at 756) In March 2009, Popken reported to Dr. Xing that the knee pain had subsided, though in April 2009 she claimed it had returned. (Id. at 751-52.) ALJ Benitz accorded Dr. Xing's opinion little weight because of its inconsistency with Dr. Leitman's . records, particularly concerning Popken's claimed ambulation dysfunction. (Id. at 25.)

iv. Dr. Ivins

Dr. Ivins, a psychologist consulting for the SSA, examined Popken on September 5, 2007 and filled out a Psychological Functional Capacities Evaluation Form ("PFCEF"). (Id. at 600-03.) He noted that Popken was tearful and sad throughout the evaluation, having to stop and cry several times. (Id. at 600.) She denied hallucinations. (Id.) Dr. Ivins found her stream of thinking "adequate, " and he found her ability to answer questions "good." (Id.) He found no language impairment, suicidal ideation, or delusional thinking. (Id.) Dr. Ivins found Popken's remote memory to be poor, but her recent past memory to be quite good. (Id. at 601.) She stated that she slept well while taking her medication. (Id.) Popken reported strong attention and concentration skills, though she noted that she avoided human contact. (Id.)

Dr. Ivins diagnosed Popken with recurrent major depressive disorder and gave her a guarded prognosis. (Id.) He found that she had a "moderately severe" degree of impairment restricting her daily activities, her ability to sustain work performance and attendance in a normal work-setting, cope with the pressures of ordinary work, and perform routine, repetitive tasks under ordinary supervision." (Id. at 602-03.) "Moderately severe" was defined on the form as "an impairment which seriously affects ability to function." (Id. at 603.) ALJ Benitz interpreted this to mean that Dr. Ivins believed Popken would be able to perform simple and routine work. (Id. at 21.)

C. The ALJ's Decision

On June 29, 2009, ALJ Benitz issued a decision finding Popken not disabled during the claimed period from November 5, 2005, to the date of the decision. (D.I. 5 at 27.) He found that Popken had the severe impairments of degenerative disc disease; disc herniation; status-post lumbar fusion; osteoarthritis and subsequent right knee total replacement and left knee partial arthroplasty; and depression. (Id. at 18.) He found that she had the non-severe impairments of obesity, irritable bowel syndrome ("IBS"), and carpal tunnel syndrome. (Id. at 19.) ALJ Benitz determined in his residual functional capacity ("RFC") assessment that, with these impairments, Popken could perform sedentary work as defined in 20 C.F.R. 404.1567(a) subject to certain exceptions based on her physical and mental limitations. (Id. at 20.) While ALJ Benitz determined Popken was unable to perform any past relevant work, he found in accord with a vocational expert's testimony that Popken could perform one of several jobs which exist in significant numbers in the national economy. (Id. at 26.)


A. Summary Judgment Standard

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Boyle v. County of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998). Thus, summary judgment is appropriate only if the moving party shows there are no genuine issues of material fact that would permit a reasonable jury to find for the non-moving party. Boyle, 139 F.3d at 393. A fact is material only if it might affect the outcome of the suit. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). An issue is genuine if a reasonable jury could possibly find in favor of the non-moving party with regard to that issue. Id. In deciding the motion, the court must construe all facts and inferences in the light most favorable to the non-moving party. Id.; see also Assaf v. Fields, 178 F.3d 170, 173-74 (3d Cir. 1999).

This standard does not change merely because there are cross-motions for summary judgment. Appelmans v. Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987). Cross-motions for summary judgment:

are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist.

Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968) (citation omitted). "The filing of cross-motions for summary judgment does not require the court to grant summary judgment for either party." Krupa v. New Castle County, 732 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.