Leta Penrod v. Nancy A. Berryhill (Commissioner, Social Security Administration)

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

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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

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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.

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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

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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

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VE’s opinion made clear that such a job is not one that someone

with Penrod’s RFC could perform.

AFFIRMED