Judges: Per Curiam
Filed: Aug. 15, 2018
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 17-2973 LETA PENROD, on behalf of Tod Alan Penrod, Deceased, Plaintiff-Appellant, v. NANCY A. BERRYHILL., Acting Commissioner of Social Security, Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:16cv324— William C. Lee, Judge. _ ARGUED JUNE 6, 2018 — DECIDED AUGUST 15, 2018 _ Before WOOD, Chief Judge, and KANNE and SCUDDER, Cir- cuit Judges. PER C
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 17-2973 LETA PENROD, on behalf of Tod Alan Penrod, Deceased, Plaintiff-Appellant, v. NANCY A. BERRYHILL., Acting Commissioner of Social Security, Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:16cv324— William C. Lee, Judge. _ ARGUED JUNE 6, 2018 — DECIDED AUGUST 15, 2018 _ Before WOOD, Chief Judge, and KANNE and SCUDDER, Cir- cuit Judges. PER CU..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐2973
LETA PENROD, on behalf of Tod Alan Penrod, Deceased,
Plaintiff‐Appellant,
v.
NANCY A. BERRYHILL.,
Acting Commissioner of Social Security,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:16cv324— William C. Lee, Judge.
____________________
ARGUED JUNE 6, 2018 — DECIDED AUGUST 15, 2018
____________________
Before WOOD, Chief Judge, and KANNE and SCUDDER, Cir‐
cuit Judges.
PER CURIAM. Leta Penrod brings this appeal on behalf of
her deceased husband, Tod Penrod, who before his death ap‐
plied for disability insurance benefits based on various im‐
pairments, including arthritis, diabetes, and high blood pres‐
sure. 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 sup‐
plemental 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 al‐
leged 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 cardiolo‐
gist opined that Penrod had been “doing well from a cardio‐
vascular standpoint,” though he continued to experience oc‐
casional 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 typi‐
cally relieved the pain when it did not subside on its own. In
2012 Penrod twice visited the emergency room with com‐
plaints 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 rele‐
vant 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 ar‐
eas showed moderate degeneration in Penrod’s spine but no
significant degeneration in his shoulders or hips. After re‐
viewing 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 appli‐
cation for benefits in December 2014, 18 months after Pen‐
rod’s date last insured. Penrod and his lawyer acknowledged
4 No. 17‐2973
at the outset of the hearing that the period under considera‐
tion 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, la‐
borer, 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 una‐
ble to work at the pace that his employer wanted.
When the ALJ asked Penrod why he could not work, Pen‐
rod 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 limi‐
tations, 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 limita‐
tions 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 assem‐
bler, 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 bene‐
fits. 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 dis‐
ease, obesity, kidney stones, and diabetes were severe impair‐
ments; (Step 3) none of those impairments equaled a listed
impairment; (Step 4) he retained the residual functional ca‐
pacity to perform a limited range of light work; and (Step 5)
he could not perform his past relevant work but could per‐
form the jobs that the VE identified.
In reaching this conclusion, the ALJ determined that alt‐
hough Penrod’s impairments could result in the types of
symptoms he alleged, the medical evidence did not support
6 No. 17‐2973
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 rec‐
ommended 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 appli‐
cation. Although the ALJ who denied Penrod’s second appli‐
cation added degenerative disc disease and diabetes to Pen‐
rod’s list of severe impairments, she formulated a slightly dif‐
ferent 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 restric‐
tive 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 ben‐
efits for a prior period. Second, the newer RFC is not materi‐
ally less restrictive than the older one. The newer RFC pro‐
vides that the applicant needs “the option to sit or stand alter‐
natively at will,” which offsets the increase in the estimated
number of hours Penrod could stand. And the newer RFC
No. 17‐2973 7
also contains an accommodation that the applicant must be
able to be off‐task 10% of the time, which offsets the elimina‐
tion 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 occa‐
sional 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 Pen‐
rod’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 ina‐
bility 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 treat‐
ment, nor the existence of “disabling heart disease.” See Chil‐
dress 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 be‐
8 No. 17‐2973
cause Leta does not explain how any lack of specific treat‐
ments 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 lim‐
itations the ALJ should have included in the RFC analysis.
And the two agency doctors considered Dr. Kamineni’s opin‐
ion when they concluded that Penrod could do light work.
Leta also observes that “daily activities do not have a di‐
rect and immediate correlation to work.” Contrary to Leta’s
suggestion, however, the ALJ did not improperly equate Pen‐
rod’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, per‐
formed 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 strength‐
ened 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 me‐
chanic 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 some‐
one with Penrod’s RFC could perform.
AFFIRMED