Popken v. Astrue

Filing 17

MEMORANDUM. Signed by Judge Gregory M. Sleet on 10/9/2014. (mdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

LAURIE A. POPKEN,
Plaintiff,
v.

MICHAEL J. ASTRUE, 1
Commissioner of Social Security,
Defendant.

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C.A. No. 11-711 (GMS)

MEMORANDUM
I.

INTRODUCTION
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(±). 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. (!d. at
70-71, 74.) Popken thereafter requested an administrative law judge ("ALJ") rehearing, which
took place on April14, 2009. (!d. at 29-31.) At the hearing, Popken and an impartial vocational
expert, Tony Malass provided testimony. (!d. at 31.)
The ALJ, Melvin Benitz, issued a written decision on June 29, 2009, denying Popken's
benefit claims. (!d. at 13.) Popken requested a review of the ALJ's decision by the Social

1
Carolyn W. Colvin became the Commissioner of Social Security ("Commissioner") on February 13,
2013, after briefmg began. Although under Federal Rule of Civil Procedure 25, Carolyn W. Colvin should be
substituted for Michael J. Astrue, pursuant to 42 U.S.C. § 405(g) no further proceedings are necessary to continue
this action.

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.I. 1.) Presently before the court are the
parties' cross-motions for summary judgment. (D.I. 9; D.I. 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.
II.

BACKGROUND

Popken was born on April 21, 1962. (D.I. 5 at 120.) She attended high school and
received her diploma. (!d. at 32, 177). At the time of her application for DIB on March 7, 2007,
Popken was forty-four years old.

(!d. at 120, 125.)

Her alleged disability dates back to

November 5, 2005. (!d. 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 ofDrs.
Diehl, Leitman, Xing, and Ivins are disputed by the parties. (See D.I. 10; D.I. 13.)
A. Medical and Employment History

Popken worked as a cafeteria worker for the Brandywine School District from August
1999 to November 2005. (D.I. 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. (!d. 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
2

conditions in the medical record.

B.
i.

Expert Opinions
Dr. Diehl
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. (Jd.) While under Dr. Diehl's care
for pain medication, Popken obtained several hundre9 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. "5/1 0" 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. (Jd.) 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. Leitman'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. (Jd.)

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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. (Jd.) Dr. Leitman's notes following the
surgery indicated that Popken's knee was healing well. (Jd.) 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. (Jd.) On November 15, 2007, Ms. Popken
underwent arthroscopic

~urgery

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. (Jd.)

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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. (ld. at 712-14.) Dr.
Xing noted that Popken had "trouble ambulating and climbing stairs" but that the pain was
relieved with medication.

(ld.)

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. (!d.) Dr. Xing continued to treat Popken on a monthly basis.
(!d. 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. (!d. 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. (!d. 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. (!d. 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"). (!d. at 60003.) He noted that Popken was tearful and sad throughout the evaluation, having to stop and cry
several times. (!d. at 600.) She denied hallucinations. (ld.) Dr. Ivins found her stream of
thinking "adequate," and he found her ability to answer questions "good." (!d.) 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. (!d. at 601.) She stated

5

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." (!d. 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

6

vocational expert's testimony that Popken could perform one of several jobs which exist in
significant numbers in the national economy. (!d. at 26.)
III.
A.

STANDARD OF REVIEW

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
oflaw." FED. R. Crv. P. 56(c); see also Boyle v. County ofAllegheny 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.
7

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 F. Supp. 497, 505 (D. Del. 1990) (citation
omitted).

B.

Standard of Review
A reviewing court will only reverse the ALJ's decision if the Commissioner did not apply

the proper legal standards or if the ALJ's decision is unsupported by "substantial evidence" in
the record. 42 U.S.C. § 405(g); Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992).
"Where the ALJ's findings of fact are supported by substantial evidence," the court is "bound by
those findings, even if ... [it] would have decided the factual issue differently." Fargnoli v.
Massanari, 247 F.3d 34, 38 (3d Cir. 2001). "[S]ubstantial evidence ... means more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Thus, substantial evidence "may be somewhat
less than a preponderance of evidence." Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir.
2005) (quoting Ginsburg v. Richardson, 436 F.2d 1146, 1148 (3d Cir. 1971)). "Ifthere is only a
slight preponderance of the evidence on one side or the other, the [Commissioner's] finding
should be affirmed." Hanusiewicz v. Bowen, 678 F. Supp. 474, 476 (D.N.J. 1988).
In determining whether substantial evidence supports the Commissioner's findings, the
court may not undertake a de novo review of the ALJ's decision, nor may it re-weigh the
evidence of record. Monsour Med. Ctr. v. Heckle, 806 F.2d 1185, 1190 (3d Cir. 1986). The
inquiry is not whether the reviewing court would have made the same determination, but rather
8

whether the Commissioner's conclusion was reasonable.

Richardson, 402 F.2d at 401; see

Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).

ALJ decisions are therefore to be

accorded a high level of deference in review. Even if the court would have decided the case
differently, it must defer to the ALJ and affirm the Commissioner's decision so long as that
decision is supported by substantial evidence. Monsour, 806 F.2d at 1190-91.
In an action in which review of an administrative determination is sought, the agency's
decision cannot be affirmed on a ground other than that actually relied upon by the agency in
making its decision. Fargnoli, 247 F.3d at 44, n. 7 (citing SEC v. Chenery Corp., 318 U.S. 80,
63 (1943) ("The grounds upon which an administrative order must be judged are those upon
which the record discloses that its action was based.")). "The district court's function is to
determine whether the record, as a whole, contains substantial evidence to support the
Commissioner's findings." Cefalu v. Barnhart, 387 F. Supp. 2d 486, 491 (W.D. Pa. 2005) (citing

Adorno v. Shalala, 40 F.3d 43,. 46 (3d Cir. 1994)). In Social Security cases, this substantial
evidence standard applies to motions for summary judgment brought pursuant to FED R. CIV. P.
56( c). See Woody v. Sec y of the Dep 't of Health & Human Serv., 859 F.2d 1156, 1159 (3d Cir.
1988).

IV.
A.

DISCUSSION
Applicable Statute and Law
The Act defines "disability" as the inability "to engage in any substantial gainful activity

by reason of any medically determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last for a continuous period of not less
than 12 months." 42 U.S.C. § 1382c(a)(3)(A). The Commissioner has promulgated regulations
9

for determining disability by application of a five-step sequential analysis. See 20 C.F.R. §
404.1520. The ALJ, the reviewing Appeals Council, and the Commissioner evaluate each case
according to this five-step process until a finding of "disabled" or "not disabled" is obtained. See
id. at§ 404.1520(a). The process is summarized as follows:
1.

2.
3.

4.
5.

If the claimant currently is engaged in substantial gainful employment, she will be
found "not disabled."
If the claimant does not suffer from a "severe impairment," she will be found "not
disabled."
If the severe impairment meets or equals a listed impairment in 20 C.F.R. Part
404, Subpart P, Appendix 1 and has lasted or is expected to last for a continuous
period of at least twelve months, the claimant will be found "disabled."
Otherwise, she will be found "not disabled."
If the claimant can still perform work she has done in the past ("past relevant
work") despite the severe impairment, she will be found "not disabled."
Finally, the Commissioner will consider the claimant's ability to perform work
("residual functional capacity"), age, education, and past work experience to
determine whether or not she is capable of performing other work in the national
economy. If she is incapable, a finding of disability will be entered. Conversely, if
the claimant can perform other work, she will be found "not disabled."

See -Cunningham v. Apfel, No. 00-693, 2001 WL 1568708, at *4 (D. Del. Dec. 7, 2001)
(paraphrasing the five-step process for determining disability).
The disability determination analysis involves a shifting burden of proof. See Wallace v.
Secretary of Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983). In the first four steps
of the analysis, the burden is on the claimant to prove every element of his or her claim by a
preponderance of the evidence. At step five, however, the burden shifts to the Commissioner to
prove that there is some other kind of substantial gainful employment the claimant is able to
perform. Sykes v. Apfel, 228 F.3d 259, 263 (3d Cir. 2000); see also Kangas v. Bowen, 823 F.2d
775, 777 (3d Cir. 1987); Olsen v. Schweiker, 703 F.2d 751, 753 (3d Cir. 1983). Substantial
gainful employment is defined as "work that-(a) involves doing significant and productive
10

physical or mental duties; and (b) is done (or intended) for pay or profit." 20 C.P.R.§ 404.1510.
When determining whether substantial gainful employment is available, the ALJ is not limited to
consideration of the claimant's prior work, but may also consider any other substantial gainful
activity which exists in the national economy. See 42 U.S.C. § 423 (d)(1)(A), (2)(A); Heckler v.
Campbell, 461 U.S. 458,460 (1983).

B.

The ALJ's Finding of "Not Disabled"
Undertaking the five-step process, ALJ Benitz found at step one that Popken has not

engaged in substantial gainful activity since the alleged onset date. (D.I. 5 at 18.) He found at
step two that Popken has several severe impairments and several non-severe impairments. (Id. at
19.)

However, ALJ Benitz found in step three that Popken's impairments do not, either

singularly or in combination, meet or medically equal one of the listed impairments in 20 C.P.R.
Part 404, Subpart P, Appendix 1. (!d.) While ALJ Benitz found in step four that Popken could
not perform her past relevant work as a cafeteria worker, he found in step five that she has the
RFC to perform the sedentary work necessary for several forms of substantial gainful activity
which exist in the national economy.

(!d. at 25-26.) ALJ Benitz therefore concluded that

Popken has not, during the relevant dates of consideration, been under a disability as defined by
the Act. (!d. at 26.)

C.

Parties' Contentions
Popken disputes the ALJ's findings under step five. She argues that ALJ Benitz made

several errors in the course of his RFC determination:
First, the ALJ's reasons for rejecting the opinions of Drs.
Xing and Diehl, Ms. Popken's treating physicians, was [sic] not
supported by substantial evidence.
Second, the Commissioner rejected a portion of the opinion
11

of the state agency consultant and gave no reasoning for the
rejection of it. The consultant's opinion provided additional
limitations that would affect the outcome of Ms. Popken's capacity
for work.
Third, the ALJ failed to consider the impact of Ms.
Popken's obesity on her ability to work and its effect on her other
impairments.
Fourth, the Commissioner erred by failing to consider and
evaluate the testimony of George Popken that described the
claimant's limitations. The ALJ was required to examine and
assess weight to this evidence.
Lastly, as the hypothetical question posed to the VE did not
comprehensively describe Mr. [sic] Popken's impairments, it
cannot provide support for a finding that there is other work in the
national economy that he [sic] can perform.
Since Ms. Popken's entitlement to benefits is clear from
this record, this Court should reverse the Commissioner's decision
and remand with instructions to award benefits. Alternatively, this
case should be remanded to the Commissioner for further
proceedings in accordance with applicable law and regulations.
(D.I.lOat 1-2.)
The Commissioner in response argues that ALJ Benitz's findings at each step were
supported by substantial evidence:
First, Popken's disagreement with the ALJ's reasoning for
assigning "little" weight to the medical source statements of Drs.
Diehl and Xing is not grounds for asserting legal error ....
Secondly, and in accordance with the regulations, the ALJ
properly considered Dr. Ivins's consultative report ....
Thirdly, contrary to Popken's assertion oflegal error at step
two, the ALJ properly found that Popken's obesity was not
severe ....
Fourthly, Popken's assertion that the ALJ failed to consider
the testimony of her husband, George, is an inadvertent
misrepresentation of the ALJ' s decision ....
Lastly, Popken's assertion that the ALJ's finding at step
five of the sequential evaluation process was based upon an
12

incomplete hypothetical question is also meritless ....
(D.I. 13 at 12-19.)
Popken mischaracterizes ALJ Benitz's assessment of the medical opinions and
testimonies, and she mistakes the level of deference the ALJ is required to accord these opinions.
Contrary to Popken's allegations, ALJ Benitz explained the level of weight he afforded each
opinion and made no legal error in formulating the RFC assessment. Popken in effect asks this
court to undertake an inappropriate de novo review of the ALJ's findings on the record by reweighing the evidence in her favor. Because, as the Commissioner contends, the ALJ's findings
are supported by substantial evidence in the record-evidence which a reasonable mind might
accept as adequate to support his conclusion-this court will not overrule those findings.
D.

Weight Given to Medical Opinions

"A cardinal principle guiding disability eligibility determinations is that the ALJ accord
treating physicians' reports great weight." Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000).
Such reports will be given controlling weight where a treating source's opinion on the nature and
severity of a claimant's impairment is well supported by medically acceptable clinical and
laboratory diagnostic techniques, and is not inconsistent with the other substantial evidence on
record. Fargnoli, 247 F.3d at 43. The ALJ must consider medical findings supporting the
treating physician's opinion that the claimant is disabled. Morales, 225 F.3d at 317 (citing
Plummer v. Apfel, 186 F.3d 422,429 (3d Cir. 1999)).
It is error, however, to apply controlling weight to an opinion merely because it comes

from a treating source if it is not well-supported by the medical evidence or is inconsistent with
other substantial evidence-medical or lay-in the record. SSR 96-2P, 1996 WL 374188, at *5
13

(S.S.A. July 2, 1996). If the ALJ rejects the treating physician's assessment, he may not make
"speculative inferences from medical reports," and may reject "a treating physician's opinion
outright only on the basis of contradictory medical evidence." Plummer, 186 F.3d at 429. A
statement by a treating source that a claimant is "disabled" is not a medical opinion; rather, it is
an opinion on an issue reserved to the ALJ because it is a legal finding that is dispositive of the
case. See 20 C.F.R. § 416.927(d). Only the ALJ can make a disability determination.
If a medical source's opinion is not given controlling weight, it may still be given some
weight based on these factors: (1) whether the source has examined the claimant; (2) whether the
source has treated the patient, and the length, nature, and extent of the treating relationship; (3)
the degree to which the source has presented relevant evidence to support the opinion; (4) the
degree to which the source's opinion is consistent with the record as a whole; (5) whether the
source specializes in the relevant medical area; and (6) other factors which tend to support or
contradict the opinion. 20 C.F.R. § 404.1527(c). If a treating source's opinion is not given
controlling weight, the ALJ must explain in the decision his reasons for not doing so and the
reasons for which he grants weight to other sources. 20 C.F.R. §§ 404.1527(c)(2), 404.1527
(e)(2)(i) (2012); see also SSR 96-2P at *5.
Popken asserts that "[t]he ALJ wrongfully rejected the opinions of Ms. Popken's treating
physicians, Dr. Selina Xing and Dr. Kristine Diehl [sic] and failed to provide a detailed
explanation for the rejection" in that he "provided only a one sentence explanation for each
physician." (D.I. 10 at 18.) Popken, however, cites no legal precedent to support the proposition
that an ALJ's explanation for not according a treating source controlling weight must be of any
particular length. Furthermore, as the Commissioner mentions, the Third Circuit has noted that
14

"[a] written evaluation of every piece of evidence is not required, as long as the ALJ articulates
at some minimum level her analysis of a particular line of evidence .... Moreover, the ALJ's
mere failure to cite specific evidence does not establish that the ALJ failed to consider it."
Phillips v. Barnhart, 91 F. App'x 775, 780 n.7 (3d Cir. 2004) (citing Green v. Shalala, 51 F.3d

96, 101 (7th Cir. 1995) and Blackv. Apfel, 143 F.3d 383,386 (8th Cir. 1998)).
ALJ Benitz did not outright reject Dr. Xing and Dr. Diehl's opinions but accorded them
little weight because of their inconsistency with other evidence of record. (D.I. 5 at 25.) The
ALJ described these inconsistencies and explained his reasons for according greater weight to
other medical opinions of record. (!d.)
i.

. Dr. Xing's Opinion

ALJ Benitz properly accorded Dr. Xing's opmwn "little weight" and explained his
reasons for not according it controlling weight. (Id.) Dr. Xing stated that Popken was disabled
due to ambulation dysfunction. (Id.) ALJ Benitz gave this opinion little weight because of
contradictory evidence in Dr. Leitman's records.

(Id.)

Those records did not indicate that

Popken had an abnormal gait except immediately before and after her knee surgeries. (Id. at
734-50 ("[o]n examination, [Popken's] gait is normal.").) ALJ Benitz accorded Dr. Leitman's
opinion more weight than Dr. Xing's, albeit while noting that Dr. Leitman did not take into
consideration Popken's back problem. (Id. at 25.)
ALJ Benitz could perhaps have provided more detail as to why he gave precedence to Dr.
Leitman's opinion over Dr. Xing's. He seems, however, to have reasonably found Dr. Leitman's
opinion deserving of greater weight for at least several of the six factors of 20 C.F .R. §
404.1527(c).

ALJ Benitz could reasonably have determined Dr. Xing's account was less
15

consistent with the record as a whole. He could have reasonably found Dr. Xing's medical
specialty of pain management less relevant to the determination than Dr. Leitman's specialty of
orthopedic surgery. The ALJ could also have considered relevant, as the Commissioner notes,
the fact that Dr. Xing's finding of ambulation dysfunction was made three years after Popken's
alleged onset date. (D.I. 13 at 4.) In any case, given the inconsistency of the medical opinions,
ALJ Benitz's decision to assign little weight to Dr. Xing's opinion was supported by substantial
evidence of record. If he erred by failing to adequately explain his reasons for resolving the
inconsistency in favor of Dr. Leitman's opinion, this error is not dispositive.
ii.

Dr. Diehl's Opinion

Popken also accuses ALJ Benitz of having wrongfully rejected Dr. Diehl's opinion. (D.I.
10 at 18.) In actuality, ALJ Benitz considered Dr. Diehl's opinion and accorded it little weight.
(D.I. 5 at 25.)

He found that, like Dr. Xing's opinion, Dr. Diehl's treatment notes were

inconsistent with Dr. Leitman's treatment records. (!d.) ALJ Benitz reasonably accorded Dr.
Leitman's records more weight than Dr. Diehl's because Dr. Diehl's disability assessment was
based only on Popken's subjective pain complaints. (!d.) ALJ Benitz noted that Popken's pain
reports were inconsistent throughout the record and among the accounts of Drs. Xing, Sugarman,
and Leitman. (!d. at 24-25.) Popken used these inconsistent reports to obtain hundreds of
additional pain pills from multiple doctors. (!d. at 25.) The ALJ reasonably determined because
of this behavior that Popken's credibility was doubtful, and he accordingly gave more weight to
Dr. Leitman's records than to Dr. Diehl's opinion.
iii.

Dr. Ivins's Opinion

16

Popken argues that ALJ Benitz wrongly rejected Dr. Ivins's opinion and "completely
ignored Dr. Ivins' [sic] PFCEF." (D.I. 10 at 25.) ALJ Benitz, however, considered Dr. Ivins's
assessment, finding it on the whole consistent with Popken's ability to perform simple and
routine work. (D.I. 5 at 21, 600-603.) Popken argues that "[t]he ALJ erred in failing expressly
to address all of Dr. Ivins' [sic] opinion" for the RFC assessment, but she offers no legal
precedent to support this contention. (D.I. 10 at 27.) It is true that the ALJ "must consider
findings and other opinions of State agency medical and psychological consultants ... as opinion
evidence, except for the ultimate determination about whether [the claimant is] disabled." 20
C.F.R. § 404.1527(e)(2)(i). The ALJ, however, is "not bound by any findings made by State
agency medical or psychological consultants ...." Id. "The findings of fact made by state
agency medical consultants must be treated as expert opinion evidence of nonexamining sources
.... An ALJ may not ignore these opinions and must explain the weight given them." Neal v.

Comm'rofSoc. Sec., 2003 WL 340789, at *979 (3d Cir. Feb. 10, 2003).
Popken argues that "no rationale whatsoever was given for the rejection of Dr. Ivins'
PFCEF" and that "[t]his error was not harmless because consideration of Dr. Ivins' [sic] opinion
affected whether additional restrictions should have been included in the [RFC] assessment,
thereby potentially altering the disability determination." (D.I. 10 at 25.) Popken correctly
asserts that ALJ Benitz erred when he "wrongfully stated that Dr. Ivins believed that Ms. Popken
was capable of simple, routine work." (Jd.; D.I. 5 at 21 ("Dr. Ivins ... stated she would be able
to perform simple and routine work.").) Dr. Ivins in fact opined in his PFCEF that Popkens had
a "moderately severe" degree of impairment restricting her ability to perform daily activities; to
sustain work performance and attendance in a normal work-setting; to cope with the pressures of
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ordinary work; and to perform routine, repetitive tasks under ordinary supervision. (D.I. 5 at
600-03.) "Moderately severe" was defined on this form as "an impairment which seriously
affects ability to function." (!d.)
The ALJ's error in misinterpreting Dr. Ivins's opinion, however, does not in itself merit
remand. The Commissioner correctly notes that a function-by-function analysis of a medical
source's statements is unnecessary where a claimant's impairments do not rise to the level
necessary to establish disability. Bencivenga v. Apfel, 2000 WL 875684, at *3 (E.D. Pa. June
2000), aff'd, Bencivenga v. Apfel, 2000 WL 1929759 (3d Cir. Dec. 19, 2000); (D.I. 13 at 15-16.)
While the ALJ did not explicitly address each of Dr. Ivins's functional ratings, he incorporated
restrictions compatible with Dr. Ivins's opinion into his own function-by-function RFC
assessment. (D.I. 5 at 20-25.) Furthermore, ALJ Benitz's rejection of portions of Dr. Ivins's
opinion was justified by the inconsistency of Dr. Ivins's findings with the other medical evidence
of record. Though ALJ Benitz erred in failing to fully explain his reasons for that rejection, the
error is not dispositive. He could still reasonably have found Popken disabled based on the same
substantial evidence of record.

E.

Popken's Obesity
Popken argues that the ALJ erred in failing to consider her obesity for the purposes of the

RFC and in declining to find Popken's obesity a severe impairment on her ability to work at a
sedentary level. (D.I. 10 at 28.) These two claims are contradictory. In advancing the latter
Popken concedes that ALJ Benitz did consider her obesity, though he found that "even while she
worked .... [o]besity seem[ ed] to cause only a minimal effect on her ability to perform workrelated activity." (D.I. 5 at 19.) As the Commissioner notes, "to the extent that Popken's weight
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may have potentially affected her knee and back impairments, the ALJ adequately
accommodated Popken by finding that she was limited to work at the sedentary level of exertion
that allowed for a sit-stand option and no stair climbing." (D.I. 13 at 17; D.I. 5 at 20.)
ALJ Benitz was reasonable in declining to find Popken's obesity a severe impairment on
her ability to work at this level. The evidence of record demonstrated Popken's ability to work
and maintain other daily activities despite her obesity. (D.I. 5 at 19.) ALJ Benitz perhaps should
have addressed Dr. Michael Borek's comments about Popken's obesity, but he evidently took
Dr. Borek's opinion into consideration when he adopted similar exertional restrictions. (!d. at
252-56; see id. at 20-25.) Because ALJ Benitz's impairment assessment regarding Popken's
weight was supported by substantial evidence which a reasonable mind might accept as adequate
to support his conclusion, it does not merit remand.
F.

George Popken's Testimony

Popken argues that ALJ Benitz erred in providing no explanation as to why he
disregarded George Popken's testimony. As authority Popken cites SSR 96-7p's requirement that
[i]n determining the credibility of the individual's statements, the
adjudicator must consider the entire case record, including the
objective medical evidence, the individual's own statements about
symptoms, statements and other information provided by treating
or examining physicians or psychologists and other persons about
the symptoms and how they affect the individual, and any other
relevant evidence in the case record.
Titles II & XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an
Individual's Statements, SSR 96-7P, 1996 WL 374186, at *1 (S.S.A July 2, 1996). Popken notes
that "the ALJ must also consider and weigh all of the non-medical evidence before him."
Burnett v. Comm 'r of Soc. Sec. Admin., 2000 WL 1025673, at *122 (3d Cir. 2000).

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Unlike the ALJ in Burnett, however, ALJ Benitz took Mr. Popkens's testimony into
consideration. (See D.I. 5 at 24.) ALJ Benitz formulated an RFC consistent with Mr. Popkens's
account of his wife's depression and social limitations. (ld. at 20.) While ALJ Benitz could
have been more explicit in rejecting Mr. Popkens's specific opinion as to his wife's inability to
work, he clearly explained his reasoning for finding this opinion inconsistent with the other
evidence of record. (See, e.g., id. ("The undersigned finds that the objective medical evidence
does not support the degree of limitation alleged by the claimant.").) ALJ Benitz did not err in
making this reasonable conclusion.
G.

Other Work in the National Economy
Popken argues that the Commissioner failed to establish that there is other work in the

national economy that Popken can perform because the ALJ's hypothetical question was
deficient. (D.I. 10 at 34.) "A hypothetical question must reflect all of a claimant's impairments
that are supportee by the record; otherwise the question is deficient and the expert's answer to it
cannot be considered substantial evidence." Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir.
1987) (citing Podedworny v. Harris, 745 F.2d 210 (3d Cir. 1984); Wallace v. Secretary, 722 F.2d
1150 (3d Cir. 1983)). Popken contends that the hypothetical was deficient because the ALJ did
not comprehensively describe Ms. Popken's limitations. (Jd.) However, she gives no indication
as to what limitations the ALJ did not "comprehensively" describe. Furthermore, the Chrupcala
court precedent Popken cites does not support the proposition that an ALJ's hypothetical must
meet a specific level of "comprehensiveness" in its description of each impairment listed. The
hypothetical merely must "reflect all of a claimant's impairments that are supported by the

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record." Chrupcala, 829 F.2d 1276 (emphasis added). ALJ Benitz's hypothetical question was
not deficient in that it reflected all of Popken's impairments that are supported by the record.
The ALJ, therefore, acted reasonably in formulating his hypothetical question to the
vocational expert. He committed no error of law meriting remand in this assessment or any
other. With due consideration given to the parties' arguments and submissions,. and the
applicable law, the court finds that ALJ Benitz's disability determination was properly supported
by substantial evidence.
V.

CONCLUSION

ALJ Benitz' s findings were supported by evidence "a reasonable mind might accept as
adequate to support a conclusion." Richardson, 402 F.2d at 401. Thus, the court grants the
Commissioner's motion for summary judgment and denies Popken's motion for summary
judgment.

Dated: October~' 2014

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