Date: 08-17-2018

Case Style:

Case Number: 17-2973

Judge: Per Curiam

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Indiana (Allen County)

Plaintiff's Attorney: Randal Forbes

Defendant's Attorney: James B Geren

Description: Leta Penrod brings this appeal on behalf of
her deceased husband, Tod Penrod, who before his death applied
for disability insurance benefits based on various impairments,
including arthritis, diabetes, and high blood pressure.
An administrative law judge determined that, despite
2 No. 17‐2973
these impairments, Penrod retained the capacity to work
through his last insured date. Because substantial evidence
supports that decision, we affirm.
BACKGROUND
Tod Penrod first applied for disability benefits and supplemental
security income in September 2010, when he was
45. He alleged that he became disabled after a heart attack the
previous month. An administrative law judge (“ALJ”) denied
Penrod’s application for benefits in April 2012. The Appeals
Council declined review, and the district court upheld the
agency’s decision, Penrod v. Colvin, No. 1:13‐cv‐131‐APR, 2014
WL 2700253 (N.D. Ind. June 13, 2014). Penrod did not appeal
to this court.
While Penrod’s case was pending in the district court, he
filed a second application for disability insurance benefits
(but not for supplemental security income). This time he alleged
that he was disabled because of arthritis, diabetes, high
blood pressure, high cholesterol, short‐term memory loss,
and asthma. This second application, which is the subject of
this appeal, covers the period from April 2012 (when the ALJ
denied Penrod’s first application for benefits) to June 2013 (his
date last insured).
The relevant medical evidence is sparse. After his 2010
heart attack, Penrod received a stent and regular follow‐up
care for coronary artery disease. In January 2012 his cardiologist
opined that Penrod had been “doing well from a cardiovascular
standpoint,” though he continued to experience occasional
chest pain. The pain occurred more frequently when
Penrod exerted himself or became anxious, but it sometimes
No. 17‐2973 3
occurred when he was at rest. One nitroglycerin tablet typically
relieved the pain when it did not subside on its own. In
2012 Penrod twice visited the emergency room with complaints
of chest pain, though he did not require treatment on
either visit.
Penrod’s poverty and lack of health insurance coverage
complicated his treatment. For example, in November 2012
Penrod told his cardiologist that he could not afford all of his
prescribed medications or a recommended stress test.
Penrod also suffered from kidney stones during the relevant
period. In January 2012 he had surgery to extract several
stones and to implant a ureteral stent. Three months later he
had another stone removed. And in October 2012 he visited
the emergency room with “severe left flank pain,” which was
relieved with Toradol. Soon afterwards a urologist performed
lithotripsy to clear an obstruction in Penrod’s urinary tract.
A consultative physician, Dr. Vijay Kamineni, examined
Penrod in May 2013 in connection with his application for
benefits. Penrod identified his chief complaint as arthritis
pain. Dr. Kamineni observed a limited range of motion in
Penrod’s spine, shoulders, and hips. Later x‐rays of those areas
showed moderate degeneration in Penrod’s spine but no
significant degeneration in his shoulders or hips. After reviewing
Penrod’s medical records, two consultative doctors
agreed that he could perform light work, 20 C.F.R.
§ 404.1567(b), subject to certain postural and environmental
limitations.
A different ALJ held a hearing on Penrod’s second application
for benefits in December 2014, 18 months after Penrod’s
date last insured. Penrod and his lawyer acknowledged
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at the outset of the hearing that the period under consideration
was limited to April 2012 through June 2013.
Penrod testified about his work and medical history. He
said that he stood 5 feet and 8 inches tall and weighed about
255 pounds. He had dropped out of high school after the 11th
grade, and he had previously worked as a truck driver, laborer,
and machine operator. The last time he had tried to
work was in 2012, when he worked full‐time for a few months
at a mechanic’s shop. But he had to quit because he was unable
to work at the pace that his employer wanted.
When the ALJ asked Penrod why he could not work, Penrod
focused on the difficulty of finding a job with his limited
education and job skills. Although he still drove two to three
days a week, he could not work as a truck driver because the
state revoked his commercial driver’s license when he started
taking insulin. He added that, even if there were jobs he could
perform, he would not sell his house and move for “a $9.00 an
hour job.” Pressed by the ALJ to focus on his functional limitations,
Penrod said that he would have difficulty working
because of his inability to stand or sit for prolonged periods,
limited grip, fatigue and dizziness from his medications, pain
in his hips and lower back, and kidney stones.
Penrod also testified about another heart attack he had in
September 2014, fifteen months after his date last insured. The
attack occurred while Penrod was being prepared for triple
bypass surgery, and he acquired four more stents as a result.
Leta confirmed that her husband’s functioning had “gotten
much worse” since 2012, though she did not specify how
much of the decline had occurred after his date last insured.
No. 17‐2973 5
A vocational expert testified about the number of jobs that
someone with Penrod’s limitations could perform. The ALJ
asked the VE to consider a claimant who (subject to limitations
for certain postures and work environments) could lift,
carry, push, and pull 20 pounds occasionally and 10 pounds
frequently; and sit, stand, and walk for up to six hours per
eight‐hour workday. The VE testified that such an individual
could not do Penrod’s past relevant work, but could perform
light work as an accessories assembler, small products assembler,
and laundry folder. The VE confirmed that jobs would
still be available if the individual needed to sit or stand at will
and was off‐task up to 15% of the time, excluding scheduled
breaks.
Two months after the hearing, Penrod died from cardiac
arrest. Leta then took his place in the subsequent proceedings,
including this appeal.
The ALJ denied Penrod’s application for disability benefits.
Applying the requisite five‐step analysis, see 20 C.F.R.
§ 404.1520(a)(4), the ALJ determined that—from his alleged
onset date through his date last insured—(Step 1) Penrod did
not engage in substantial gainful activity; (Step 2) Penrod’s
coronary artery disease, hypertension, degenerative disc disease,
obesity, kidney stones, and diabetes were severe impairments;
(Step 3) none of those impairments equaled a listed
impairment; (Step 4) he retained the residual functional capacity
to perform a limited range of light work; and (Step 5)
he could not perform his past relevant work but could perform
the jobs that the VE identified.
In reaching this conclusion, the ALJ determined that although
Penrod’s impairments could result in the types of
symptoms he alleged, the medical evidence did not support
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his testimony about the degree of limitations he experienced.
For example, the ALJ said that Penrod’s “ongoing smoking
behavior against medical advice … was inconsistent with the
allegation of ‘disabling’ heart disease,” his frequent reports to
his doctors that he was “unable to afford medications and recommended
tests,” and his credibility generally.
The Appeals Council denied Penrod’s request for review,
and the district court upheld the ALJ’s decision.
ANALYSIS
In this court Leta first faults the ALJ for not reconciling her
decision with that of the ALJ who denied Penrod’s first application.
Although the ALJ who denied Penrod’s second application
added degenerative disc disease and diabetes to Penrod’s
list of severe impairments, she formulated a slightly different
residual functional capacity (“RFC”) than the first ALJ
had. As relevant here, the new RFC increases from four to six
the potential hours of standing and walking in a day, and it
does not include an accommodation for an extra three to five
minute bathroom break in the morning and afternoon. Leta
contends that the second ALJ should have identified specific
improvements in Penrod’s symptoms to justify a less restrictive
RFC than the first ALJ’s.
This argument fails for at least two reasons. First, Leta cites
no authority—and we have found none—that requires an ALJ
to use the same RFC that a different ALJ used in denying benefits
for a prior period. Second, the newer RFC is not materially
less restrictive than the older one. The newer RFC provides
that the applicant needs “the option to sit or stand alternatively
at will,” which offsets the increase in the estimated
number of hours Penrod could stand. And the newer RFC
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also contains an accommodation that the applicant must be
able to be off‐task 10% of the time, which offsets the elimination
of the two bathroom breaks.
Leta next faults the ALJ for “failing to consider the way
that Penrod’s peculiar symptoms are the exact symptoms that
prefigure his subsequent repeat heart attack and later death.”
The upshot seems to be that because Penrod’s heart problems
proved fatal in 2015 they must have been disabling in 2012
and 2013. This argument is both illogical and inconsistent
with the record. As discussed above, Penrod’s cardiologist
opined in January 2012 that he had been “doing well from a
cardiovascular standpoint.” True, Penrod experienced occasional
chest pain in 2012 and 2013, but that was controlled
with medication, and Leta does not explain how any latent
heart problems imposed functional limitations before Penrod’s
date last insured in June 2013.
Leta concludes with a scattershot challenge to the ALJ’s
decision to give limited weight to Penrod’s testimony about
his limitations. The most compelling of these critiques is that
the ALJ should not have discredited Penrod based on his inability
to quit smoking. Penrod’s addiction to cigarettes—an
“unnecessary item[],” the ALJ said— in no way negates his
claims about his inability to afford expensive medical treatment,
nor the existence of “disabling heart disease.” See Childress
v. Colvin, 845 F.3d 789, 793–94 (7th Cir. 2017); Shramek v.
Apfel, 226 F.3d 809, 813 (7th Cir. 2000) (“Given the addictive
nature of smoking, the failure to quit is as likely attributable
to factors unrelated to the effect of smoking on a person’s
health.”). But the ALJ’s analytical error is harmless here be8
No. 17‐2973
cause Leta does not explain how any lack of specific treatments
made Penrod’s heart problems disabling before his date
last insured.
Leta’s remaining arguments are conclusory statements of
boilerplate law, and they are all meritless. She says that the
ALJ did not consider that Dr. Kamineni’s consultative opinion
“supports the limitations that Penrod opines in the range of
motion limitations.” But she does not say what additional limitations
the ALJ should have included in the RFC analysis.
And the two agency doctors considered Dr. Kamineni’s opinion
when they concluded that Penrod could do light work.
Leta also observes that “daily activities do not have a direct
and immediate correlation to work.” Contrary to Leta’s
suggestion, however, the ALJ did not improperly equate Penrod’s
daily activities with the activities of full‐time work. See
Pepper v. Colvin, 712 F.3d 351, 369 (7th Cir. 2013). Nor could
she have, as the record makes clear that during the relevant
time period Leta or the couple’s daughter, not Penrod, performed
most household work.
Next Leta contends that the ALJ should have considered
how Penrod’s noncompliance with his prescribed treatment
might be partially attributable to unspecified “psychological
conditions.” Once again, Leta does not explain how Penrod’s
noncompliance interfered with his ability to work.
Finally, Leta argues that Penrod’s work history strengthened
his credibility. But “[t]he ALJ did not commit reversible
error by failing to explicitly discuss [his] work history when
evaluating [his] credibility.” Summers v. Berryhill, 864 F.3d
523, 528 (7th Cir. 2017). And the failure to account for the mechanic
job is consistent with the ALJ’s conclusion because the
No. 17‐2973 9
VE’s opinion made clear that such a job is not one that someone
with Penrod’s RFC could perform.

Outcome: AFFIRMED

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Defendant's Experts:

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