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Penland v. Colvin

United States District Court, Northern District of Indiana, Fort Wayne Division

January 14, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


Roger B. Cosbey, United States Magistrate Judge.

Plaintiff Rex Allen Penland appeals to the district court from a final decision of the Commissioner of Social Security (“Commissioner”) denying his application under the Social Security Act (the “Act”) for a period of disability and Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).[1] (See Docket # 1.) For the following reasons, the Commissioner’s decision will be AFFIRMED.


Penland applied for DIB and SSI in March 2011, alleging disability as of January 22, 2009. (Tr. 158-72.) The Commissioner denied Penland’s application initially and upon reconsideration. (Tr. 79-97.) After a timely request (Tr. 98-100), a hearing was held on July 18, 2012, before Administrative Law Judge (“ALJ”) Jennifer Fisher, at which Penland, who was represented by counsel, and a vocational expert (“VE”) testified (Tr. 36-70). On September 27, 2012, the ALJ rendered an unfavorable decision to Penland, concluding that he was not disabled because he could perform a significant number of unskilled jobs in the economy despite the limitations caused by his impairments. (Tr. 19-31.) The Appeals Council denied his request for review (Tr. 10-12), at which point the ALJ’s decision became the final decision of the Commissioner. See Luna v. Shalala, 22 F.3d 687, 689 (7th Cir. 1994); 20 C.F.R. §§ 404.981, 416.1481.

Penland filed a complaint with this Court on April 9, 2014, seeking relief from the Commissioner’s final decision. (Docket # 1.) In this appeal, Penland alleges that the ALJ: (1) incorrectly concluded at step three that his impairments did not meet or equal Listing 12.05C, intellectual disability (formerly titled mental retardation); and (2) improperly rejected the opinion of consultive examiner Cathy Strack, M.S., L.M.H.C., which was countersigned by Kenneth Bundza, Ph.D.[2] (Social Security Opening Br. of Pl. 6-16.)


A. Background

At the time of the ALJ’s decision, Penland was fifty-two years old (Tr. 321); had an eighth or ninth grade education with special education classes (Tr. 25, 42-43, 195, 210, 262); and had work experience as a maintenance worker, factory worker, cook, and stocker (Tr. 195-96, 211). At the time of the hearing, he had recently started working as a Walmart greeter thirty hours per week. (Tr. 51.) He alleged on his written application that he became disabled due to emphysema and high blood pressure. (Tr. 210.) Because Penland does not challenge the ALJ’s findings about his physical condition, the Court will focus on the evidence pertaining to his mental limitations.

B. Penland’s Testimony at the Hearing

At the hearing, Penland testified that for the past eight years he has lived with his wife, but prior to that he lived alone. (Tr. 55-56.) He stated that he has difficulty with reading, writing, and math; more particularly, he has problems reading a newspaper and often relies on the pictures, but can read notes from his wife. (Tr. 43-45, 67-68.) He knows how to drive, but does not have a driver’s license because he could not pass the written exam. (Tr. 43-44, 54.) His wife completes job applications for him and completed his disability application. (Tr. 44.) He explained that he quit school in the eighth or ninth grade and sought work to help support his parents after his father was injured. (Tr. 43.)

When living alone, Penland was independent with his self care, shopping, and household tasks, except that his sister helped him write checks and pay bills. (Tr. 55-56.) He primarily relied on walking for transportation, but his siblings or landlord drove him places when needed; at the time of the hearing, he was in the process of obtaining a moped for transportation. (Tr. 57.)

Penland recently started working as a Walmart greeter thirty hours a week at the store where his wife is employed. (Tr. 45-46.) He quit a part-time job unloading trucks at the Dollar Tree for the Walmart position; he was let go from a previous job at a doughnut shop because of difficulty breathing in the hot environment. (Tr. 46, 50, 53.) He also worked various other jobs in the past, including five years of maintenance at Ramada Inn; he stated that he had no problems performing that job and was let go due to a change in management. (Tr. 47-49.) At several of his past factory jobs, his wife or another coworker occasionally helped him when he got behind. (Tr. 57-58, 68.) When asked what prevented him from working now, he stated that he had developed emphysema and high blood pressure and gotten glasses, and his long-term difficulty with reading and math. (Tr. 51.)

C. Summary of the Relevant Medical Evidence

In May 2011, Penland was evaluated by clinician Cathy Strack, M.S., L.M.H.C., and was administered the Wechsler Adult Intelligence Scale, Fourth Edition (WAIS-IV). (Tr. 262-64.) He scored 63 in verbal comprehension, 75 in perceptual reasoning, 63 in working memory, 79 in processing speed, and a full-scale IQ of 65. (Tr. 263.) Ms. Strack stated that Penland’s scores placed him in the mild mental retardation range and appeared to be a valid reflection of his intellectual functioning. (Tr. 263.) She concluded that he was “able to manage skills for daily living that include grooming, hygiene, and dress habits and routine household skills, ” but “displayed an inability to maintain satisfactory, long-term, or full-time employment that would allow him to become self-sufficient, due, in part, to his lack of arithmetic skills and ability to read.” (Tr. 263.) Ms. Strack’s report was countersigned by Kenneth Bundza, Ph.D. (Tr. 263.)

In June 2011, Kari Kennedy, Psy.D., a state agency psychologist, reviewed Penland’s record and completed a psychiatric review technique and a mental residual functional capacity (“RFC”) assessment. (Tr. 287-304.) On the psychiatric review technique, Dr. Kennedy concluded that Penland had mild restrictions in activities of daily living and maintaining social functioning; and moderate difficulties in maintaining concentration, persistence, or pace. (Tr. 297.)

On the mental RFC assessment, Dr. Kennedy found that Penland was moderately limited in his ability to understand, remember, and carry out detailed instructions; maintain attention and concentration for extended periods; and complete a normal workday and workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; respond appropriately to changes in the work setting; and set realistic goals or make plans independently of others. (Tr. 301-02.) He was not significantly limited in the other fifteen mental activity categories. (Tr. 301-02.) After noting Penland’s long work history, Dr. Kennedy concluded that while Penland may require some initial repetition for new learning, he “does appear capable of sustaining once learned.” (Tr. 303.) She summarized:

The totality of evidence in [the] file suggests that the claimant is able to: understand, carry out and remember simple instructions; able to make judgments commensurate with functions of unskilled work; able to respond appropriately to brief supervision and interactions with coworkers and work situations; [and] able to deal with changes in a routine work setting. Cl[aiman]t appears capable of unskilled work.

(Tr. 303.) Dr. Kennedy’s opinion was later affirmed by B. Randal Horton, Psy.D., a second state agency psychologist. (Tr. 305.)

D. Other Evidence

Penland’s manager from the Dollar Tree submitted a written report stating that Penland had worked there several hours per week unloading trucks, cleaning floors, and stocking shelves. (Tr. 217.) She indicated that although he was a little slow in catching on to new instructions and needed directions repeated, he was a reasonably good worker overall, was eventually allowed to train other employees, and Dollar Tree would rehire him. (Tr. 217.) She could not, however, assign him to the cash register because he made too many mistakes. (Tr. 217.)

Penland’s wife submitted a written report stating that Penland takes care of the household chores, but does not cook; he does dishes at a slow pace and sometimes does not get them clean. (Tr. 216.) He needs instructions repeated several times. (Tr. 216.) He has difficulty counting change, cannot complete an application, and cannot use a password on a computer. (Tr. 216.) He is ...

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