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Kevin M. Todd v. Michael J. Astrue

July 30, 2012


The opinion of the court was delivered by: Magistrate Judge Jeffrey Cole


The plaintiff, Kevin Todd, seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying his applications for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 423(d)(2), and Supplemental Security Income ("SSI") under Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). Mr. Todd asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.



Mr. Todd applied for DIB and SSI in February 2007, alleging that he became disabled on January 29, 2007 due to cirrhosis of the liver. (Administrative Record ("R.") 140, 144, 162). His application was denied initially and upon reconsideration. (R. 68, 77). After requesting a hearing on his claim, Mr. Todd -- represented by counsel -- appeared and testified before an administrative law judge ("ALJ") on February 9, 2009.

(R. 47-64). In addition, Dr. Carl Lee testified as a medical expert and Thomas Dunleavy testified as a vocational expert. (R. 57-64). The hearing was continued so that Mr. Todd could undergo a consultative examination. (R. 62-63).

On July 1, 2009, Mr. Todd was back in front of the ALJ, along with his attorney. Mr. Todd and another vocational expert, Grace Gianforte, testified. (R. 23-46). On July 23, 2009, the ALJ issued a decision finding that Mr. Todd was not disabled because he retained the capacity to perform a substantial range of unskilled, light work, which allowed him to do jobs that exist in significant numbers in the national economy. (R.10-22). This became the final decision of the Commissioner when the Appeals Council denied Mr. Todd' request for review of the decision on May 25, 2010. (R. 1-4). See 20 C.F.R. §§ 404.955; 404.981. Mr. Todd has appealed that decision to the federal district court under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c).




The Vocational Evidence Mr. Todd was born on December 3, 1956, making him fifty-two years old at the time of the ALJ's decision. (R. 142).


The Medical Evidence Nearly all of the medical evidence in this case comes from about ten days in early 2007. Mr. Todd wasn't feeling well at the end of January 2007. He felt tired and weak and was experiencing shortness of breath. His stomach was bloated and he had pain there. (R. 251). He checked himself into the hospital January 29th.

At that time, Mr. Todd was in the habit of drinking eight to ten vodkas a day, every day, for years. (R. 251, 361).*fn1 His liver enzymes were elevated (R. 252), and the left lobe of the liver appeared to be markedly enlarged. (254). Ascites was present in the abdomen. (R. 257). There was also some pleural effusion. (R. 257). Doctors drained 70-100 cc's of fluid from his abdomen. (R. 251). They also performed thoracentesis to drain fluid from the right lung. (R. 262). Their diagnosis was alcoholism and alcoholic cirrhosis. (R. 255). Mr. Todd was discharged on a low salt and low protein diet, and given a course of rehabilitative exercises. (R. 334-35). He had a normal range of motion in his upper extremities, and his grip strength was 4/5 bilaterally. (R. 297). Doctors advised him to give up all alcohol or his prognosis was not good. (R. 263).

Mr. Todd had a consultative examination with Dr. M.S. Patil on May 14, 2007. At the time, Mr. Todd's only complaints were occasional cramping in his fingers and toes and some numbness in his toes. (R. 468). Physical examination was essentially normal. There was moderate hepatomegaly but no tenderness. (R. 469). Range of motion was normal in the back and the extremities. (R. 469). Motor strength was 5/5 in all extremities. (R. 469). Reflexes and sensation were normal. (R. 469). Grip strength was 5/5 bilaterally, and Mr. Todd was able to perform examples of fine and gross manipulation with no difficulty. (R. 470). Blood level testing was within normal limits, -- including creatinine, albumin, etc. -- with the exception of elevated glucose at 115. (R. 472).

After his hospitalization, Mr. Todd followed up with Dr. Benjamin Schmid at the Hammond Clinic. On July 3, 2007, an x-ray revealed mild to moderate, multilevel degenerative disc disease in Mr. Todd's cervical spine. (R. 486). Blood levels were all normal, including glucose, with the exception of alkaline phosphates. (R. 492).

On July 30, 2007, Mr. Todd sought treatment at the Hammond Clinic for numbness in his fingers and toes. He said he had difficulty squeezing and opening his hands. (R. 485). It got better in the afternoon. (R. 485). He had no back pain or any problems other than in his hands and feet. (R. 485).

Dr. Kevin Joyce's treatment notes from October 10, 2007, referenced bilateral flexion contractures of the fingers, which were worse on the right. (R. 537). There was no tenderness in Mr. Todd's hands, but palpation revealed palmar nodules consistent with fibrosis. (R. 538). X-rays revealed flexion deformities and mild degenerative changes in the first carpal metacarpal joints, and an EMG showed evidence of neuropathy in the right wrist. (R. 538). Dr. Joyce thought Mr. Todd's hand impairment was closely related to Dupuytren's contractures and due to his alcoholic cirrhosis. (R. 539).

On November 28, 2007, Dr. Joyce filled out a form provided by Mr. Todd's attorney. (R. 510-11). Under "signs or symptoms . . . that affect wrists, hands or fingers", the doctor checked off "limitation of motion" and "reduced grip strength." (R. 510). There was no pain or paresthesia. (R. 510). Dr. Joyce also said that Mr. Todd's ability to use his hands to grasp, turn and twist objects was about 50% of normal, and his ability to perform fine manipulations was about 10% of normal. (R. 511).

On December 17, 2007, Dr. Schmid filled out a similar form on Mr. Todd's cirrhosis. He noted a diagnosis of palmar fibrosis. (R. 513). Under "signs and symptoms", the doctor checked off ecchymoticlesions, pleural effusion, hot/cold spells, splenomegaly, chronic fatigue, ascites, spider nevi, peripheral edema. (R. 513). Under the tests he had performed, Dr. Schmid listed "CT scan -- [illegible] of liver." (R. 513). Dr. Schmid said Mr. Todd had not used alcohol since January 2007, but abstinence would have no effect on his symptoms. He'd continue to experience problems with his hands due to "palmar fasciitis [illegible] by Dr. Joyce will continue to prevent complete finger closure of both hands." (R. 514). Dr. Schmid then indicated that Mr. Todd's symptoms would have no effect at all -- not even rarely -- on his attention and concentration. (R. 514). Still, he would be unable to perform routine, repetitive tasks; detailed or complicated tasks; fast paced tasks; or be exposed to workplace hazards. (R. 514).

There were no side effects from medication. (R. 514). Mr. Todd could walk six blocks without rest or severe pain, sit for just one hour at a time, and stand for just 20 minutes at a time. (R. 515). While Dr. Schmid indicated that Mr. Todd would not have to lie down during the day, he also said that in eight hours, he could only sit for a total of four hours and stand/walk for a total of two hours. (R. 515). The doctor added that Mr. Todd would have to take four unscheduled breaks of 20 minutes apiece every day. (R. 515). This was due to "pain/paresthesia, weakness, ...

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