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David Ivan Platon v. Michael J. Astrue

November 13, 2012


The opinion of the court was delivered by: Joseph A. DiClerico, Jr. United States District Judge


David Ivan Platon seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the decision of the Commissioner of the Social Security Administration, denying his application for disability insurance benefits. Platon renews his request that the Commissioner review the denial of disability insurance benefits in light of the Social Security Administration's decision on January 4, 2012, that granted his application for Supplemental Security Income benefits. Platon also contends that the Administrative Law Judge ("ALJ") erred in denying his disability insurance benefits application, by failing to properly consider the medical evidence and by failing to properly consider his complaints of the effects of his impairments. The Commissioner moves to affirm the decision.


Platon applied for disability insurance benefits on December 12, 2008, alleging an onset of disability as of November 25, 2008, due to body pain and diverticulitis. He was forty years old when he applied for benefits. Platon had a high school equivalency diploma; could speak, read, and write in English, and had past relevant work as a construction laborer.

A. Medical Records and Capacity Assessments On February 26, 2008, Platon saw Julie McGinnis, a physician's assistant ("PA"), due to complaints of lower back pain radiating to his legs. PA McGinnis diagnosed lower back pain and anxiety and prescribed Klonopin, Cymbalta, and physical therapy. From March through November of 2008, Platon had physical therapy for lower back pain. His pain continued, particularly on rainy days.

In April of 2008, Platon saw PA McGinnis for abdominal pain. His physical examination provided normal results. PA McGinnis diagnosed diverticulitis, inflamation of the colon, and lower back pain. On follow up, Platon reported that he was doing much better. Examination produced normal results. PA McGinnis diagnosed diverticulitis. On April 24, 2008, another physician assistant and Dr. Russell Brummett diagnosed Platon with degenerative disc disease of the lumbar spine, recommended a home exercise program, and prescribed a Medrol Dosepack.

On September 3, 2008, Platon was examined by PA McGinnis because of complaints of pain in his back, legs, and arms that he said had first occurred a year before when he fell off of a ladder. PA McGinnis found generally normal results, a full range of motion in all joints, but generalized muscle tenderness. She diagnosed arthralgia, joint pain, and myalgia, which is muscle pain.

On September 8, 2008, Platon went to Parkland Medical Center for pain in his left shoulder and hand that he said were due to a motor vehicle accident. On examination, Platon had no neck or back pain and had a normal range of motion in each but tenderness in the left shoulder, wrist, and hand. The diagnosis was a sprain. Five days later, Platon again went to Parkland Medical Center for pain in his back and left hand due to the motor vehicle accident. X-rays showed no fractures. He had normal ranges of motion, strength, reflexes, and mobility. He was diagnosed with back pain and a sprained left wrist.

Dr. Theodore T. Brooks, Platon's primary care physician at the Derry Medical Center, saw him on September 17, 2008, because of complaints of pain in his left hand from the motor vehicle accident. Dr. Brooks noted that Platon had no swelling but did have decreased range of motion in his left wrist along with painful movement and tenderness. Dr. Brooks diagnosed a sprained wrist and instructed Platon to wear a splint for two weeks and to start exercises after two weeks.

Dr. Brooks referred Platon to Dr. Andrea B. Schneebaum, a rheumatologist at the Derry Medical Center, for complaints of pain in his back and legs, and Dr. Schneebaum saw Platon the same day. Dr. Schneebaum found that Platon had good joint mobility, negative straight leg raising test, normal motor strength and reflexes, and minor discomfort in palpation of the pelvis area. Dr. Schneebaum thought that Platon possibly was developing secondary myofascial pain syndrome and prescribed Neurontin. She also thought he would be a candidate for physical therapy.

Platon had a physical therapy appointment on October 16, 2008, for treatment of neck pain. He told the provider that he had worked eight hours that day installing sheet rock. He said that he had pain in his feet and legs because he had not worked in a long time although he reported his pain as a 4 on a scale of 1 to 10.

On October 29, 2008, Platon saw Dr. Brooks for complaints of chronic back pain, inability to do his job, and a need for pain medication. On examination, Dr. Brooks found that Platon had a decreased range of motion, tenderness, and painful movements in his spine but was in no acute distress, had no deformities, and his straight leg test was negative. Dr. Brooks diagnosed lower back pain and prescribed Neurontin and Vicodin. PA McGinnis saw Platon on November 24, 2008, and made similar findings.

Platon had a magnetic resonance imaging ("MRI") study of the cervical spine done on December 1, 2008. The MRI showed a posterior central disc protrusion at level C5-6. He saw Dr. Brooks again on December 10, 2008. Dr. Brooks again found that Platon was in no acute distress but had tenderness, abnormal movements, and decreased range of motion in the neck and spine. Dr. Brooks diagnosed fibromyalgia and neck and lower back pain. In Dr. Brooks's opinion, Platon was unable to work and his condition was a "long-term situation." Dr. Brooks reiterated his diagnosis of fibromyalgia on January 14, 2009.

Paula LeBrun, a "Single Decision Maker" for the Disability Determination Services, completed a physical residual functional capacity assessment of Platon on January 23, 2009. She noted Dr. Brooks's opinion that Platon was unable to work. She also noted, that Platon's records showed some limitation in range of motion at times but that physical therapy reported normal ranges of motion, and that no medical provider had put restrictions on his activities. In addition, LeBrun noted that Platon used marijuana daily and cocaine weekly. She concluded that Platon had no limitations in his physical abilities.

Platon saw Dr. Brooks in March of 2009. Dr. Brooks repeated his diagnosis of fibromyalgia. Platon also saw Dr. Scott J. Low at Derry Medical Center, who diagnosed diverticulitis of the colon. X-rays of Platon's abdomen done on March 30, 2009, showed normal findings.

In April, Platon saw Dr. Schneebaum for complaints of pain. Dr. Schneebaum restated her diagnosis of secondary myofascial pain. She continued Platon's prescription for Lyrica and added an antidepressant.

Platon saw Dr. Low twice in May for joint pain. Dr. Low noted that Platon said that he was following up on fibromyalgia. On examination, Dr. Low found that Platon had painful movements and generalized muscle tenderness. Dr. Low noted Dr. Brooks's diagnosis of fibromyalgia and prescribed Zoloft and Lyrica. An MRI of Platon's right hip on June 8, 2009, showed normal results. Dr. Brooks continued the diagnosis of fibromyalgia after seeing Platon in September of 2009 and prescribed Percocet.

PA McGinnis saw Platon in October of 2009 for complaints of diverticulitis. On November 5, 2009, "computed tomography scans" of Platon's abdomen and pelvis showed diverticulitis of the colon. Platon saw another physician assistant on November 9, 2009, for diverticulitis. Platon also saw Dr. Brooks for fibromyalgia pain and diverticulitis.

Following a diagnosis at Parkland Medical Center of acute diverticulitis, Platon was referred to Dr. Volker Kropp for sigmoid diverticulitis. Dr. Kropp noted that Platon had only the slightest tenderness and that despite being on disability for fibromyalgia Platon appeared to be "completely uncompromised." He also said that if Platon had another bout of diverticulitis, he should be hospitalized for maximum treatment and testing.

Platon had regular appointments with Dr. Brooks for complaints of fibromyalgia. Following each examination, Dr. Brooks noted that Platon was alert, oriented, in no acute distress; had a full range of motion in his neck; no edema in his legs; but had tenderness in his thighs and spine. On August 31, 2009, Dr. Brooks completed a physical residual functional capacity assessment for Platon. Dr. Brooks wrote that fibromyalgia and chronic back pain frequently interfered with Platon's ability to perform even simple work tasks, that he could not walk more than two city blocks, that he could not sit longer than five minutes at a time, that he could not stand for more than fifteen minutes, that he could not sit and stand for more than two hours total in a work day, and that he could not lift or carry more than twenty pounds occasionally. Dr. Brooks found other limitations for postural activities and for grasping, turning, and manipulating objects. He also stated that Platon would be absent from work more than four days per month, that he would have to walk every ten minutes, that he would have to be able to shift positions at will, and that he would need to take frequent unscheduled breaks in a work day.

In his own function report for the Social Security Administration, which is not dated, Platon stated that he was in pain all day and that he stayed home and read his Bible. He said he needed pain medication to do housework, that he prepared his meals every three days, and that he drove a car and shopped once every two weeks. He said that he was able to pay bills and handle his financial affairs but that he could not count change because of pain. He also said he could ...

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