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Penrod v. Berryhill

United States Court of Appeals, Seventh Circuit

August 15, 2018

Leta Penrod, on behalf of Tod Alan Penrod, Deceased, Plaintiff-Appellant,
Nancy A. Berryhill., Acting Commissioner of Social Security, Defendant-Appellee.

          Argued June 6, 2018

          Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:16cv324- William C. Lee, Judge.

          Before Wood, Chief Judge, and Kanne and Scudder, Circuit Judges.

          PER CURIAM.

         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 these impairments, Penrod retained the capacity to work through his last insured date. Because substantial evidence supports that decision, we affirm.


         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 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 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 ...

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