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Penrod v. Colvin

United States District Court, N.D. Indiana, Hammond Division

June 13, 2014

TOD PENROD, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


ANDREW P. RODOVICH, Magistrate Judge.

This matter is before the court on the petition for judicial review of the decision of the Commissioner of the Social Security Administration filed by the plaintiff, Tod Penrod, on April 24, 2013. For the following reasons, the decision of the Commissioner is AFFIRMED.


The plaintiff, Tod Penrod, applied for Disability Insurance Benefits and Supplemental Security Income on September 24, 2010, alleging an onset date of August 30, 2010. (Tr. 149-155) Penrod's applications initially were denied on December 10, 2010, and again upon reconsideration on March 18, 2011. (Tr. 73-80) Penrod requested a hearing, and a hearing was held on February 21, 2012, before Administrative Law Judge (ALJ) Jennifer Fisher. (Tr. 26-68) Vocational Expert (VE) Marie N. Kieffer and Leta Penrod, Penrod's wife, testified at the hearing. (Tr. 26-68)

The ALJ issued her decision on April 11, 2010, finding that Penrod was not disabled. (Tr. 7-20) The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-3)

At step one of the five step sequential analysis for determining whether an individual is disabled, the ALJ found that Penrod had not engaged in substantial gainful activity since August 30, 2010, his alleged onset date. (Tr. 12) At step two, the ALJ determined that Penrod had the following severe impairments: coronary artery disease, hypertension, obesity, nephrolithiasis, history of Bell's palsy, cerebral vascular accident (mild), trigeminal neuralgia, and tobacco dependence/abuse. (Tr. 12) At step three, the ALJ concluded that Penrod did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. (Tr. 14)

The ALJ then assessed Penrod's residual functional capacity as follows:

The claimant has the residual functional capacity to lift and carry 20 pounds occasionally and 10 pounds frequently, stand/walk 4 hours total and 20 minutes continuously, and sit 6 hours total and 1-2 hours continuously. Although the limits on continuous sitting and/or standing implicate the need to periodically change positions, the individual can remain at the workstation and on task. The claimant can never climb ladders, ropes, or scaffolds. He can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. The claimant can tolerate frequent exposure to extreme cold, extreme heat, and humidity, and no exposure to work-place hazards such as dangerous moving machinery, unprotected heights, and slippery/uneven surfaces. The claimant can sustain a flexible or goal oriented pace despite needing to take an additional 3-5 minute break (for bathroom purposes) in the morning and afternoon. (Tr. 14-15)

The ALJ explained that in considering Penrod's symptoms she followed a two-step process. (Tr. 15) First, she determined whether there was an underlying medically determinable physical or mental impairment that was shown by a medically acceptable clinical or laboratory diagnostic technique that could reasonably be expected to produce the claimant's pain. (Tr. 15) Then, she evaluated the intensity, persistence, and limiting effects of the symptoms to determine the extent to which they limited Penrod's functioning. (Tr. 15)

Of relevance, the ALJ explained that Penrod testified that he had experienced back pain since he was a child, but that it had not changed, but that he had worked despite the pain. (Tr. 15) He occasionally saw a chiropractor for the pain. (Tr. 15) Penrod could sit for an hour or so and stand for 20 minutes. (Tr. 15) After that, he experienced pain in his legs and lower back. (Tr. 15) Penrod could use his hands for a while, but after that they became numb. (Tr. 15) He was diagnosed with carpal tunnel syndrome 15 years before the hearing but never had surgery or any other treatment for it. (Tr. 15)

The ALJ determined that Penrod's back pain was not well-documented and noted that it only had been treated by a chiropractor, which is not an acceptable medical source. (Tr. 17) The ALJ also stated that Penrod's back pain was not disabling because he testified that it had not changed since the alleged onset date and that he worked despite any problems from back pain in light to medium levels of exertion for many years. (Tr. 17)

The ALJ also summarized Penrod's testimony concerning his kidney stones. (Tr. 17) Penrod stated that he had kidney stones on and off for many years. (Tr. 16) He experienced excruciating pain when the stones blocked his kidneys. (Tr. 16) He had lithotripsy and surgery to remove the stones, and recent renal testing was normal. (Tr. 16) His kidney stones caused him to urinate more frequently depending on how the stones were positioned, and he was advised to drink more water. (Tr. 16) He stated that he drank four cups an hour because he dehydrated easily, and he woke up every hour or so at night to urinate. (Tr. 16) Penrod believed that he could work if he could use the bathroom with no restrictions. (Tr. 16) At his previous job, he used the bathroom every hour or so, and it took him five minutes each time. (Tr. 16) Penrod also experienced kidney pain a couple of times per month and took Advil, but that was before his recent kidney surgery. (Tr. 16) Leta Penrod also stated that Penrod got up several times per night to go to the bathroom and that during the day he took naps that lasted between 20 minutes and 2 hours. (Tr. 16)

The ALJ then stated that she did not find Penrod's statements concerning the intensity, persistence, and limiting effects entirely credible. (Tr. 16) The ALJ explained that the evidence did not support Penrod's allegations of kidney pain so bad that he had to stay in bed 10 to 15 days per month in the year before his last removal of kidney stones. (Tr. 16) Penrod did not report a history of such pain to his doctors over the prior year. (Tr. 16) When he went to the hospital on October 9, 2011, Penrod complained of acute flank pain, and on November 21, 2011, he denied having any urinary symptoms other than some flank pain. (Tr. 16) Penrod did not report the extent of urinary frequency about which he testified. (Tr. 16) The ALJ also explained that Penrod had surgery, and that the last records from his urologist did not indicate that he was having ongoing and significant kidney stone pain despite the presence of some smaller stones in the left kidney. (Tr. 16) The ALJ also found that Penrod's complaints of pain so bad that he had to stay in bed up to half a month less credible because he only took Advil and never had been prescribed any pain medication. (Tr. 16) Penrod also did not seek help for kidney or flank pain from the other doctors he saw since his alleged onset date, and he did not report having kidney-related pain to such an extent to the consultative physical examiner who asked Penrod to tell him about all of his health problems. (Tr. 16-17)

The ALJ further explained that the fact that Penrod sought medical care for flank pain related to his kidney stones in November 2011, but did not seek help for pain control at other times, and worked despite having intermittent problems with kidney stones for many years, suggested that his kidney pain was not as limiting as he testified in between acute attacks. (Tr. 17) There was nothing in Penrod's records indicating that he should drink the quantities of water he testified that he drank, and the ALJ found that the amount he drank was extreme and had an obvious effect on how frequently he needed to ...

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