7th Circuit: Disability benefit arguments lack merit

August 16, 2018

Medical evidence did not support the testimony of a deceased man about the degree of limitations he experienced, the 7th Circuit affirmed when reviewing his denied disability benefits case.

Before his death, Tod Penrod applied for disability insurance benefits based on various impairments, including arthritis, diabetes and high blood pressure.

Penrod alleged that he became disabled after suffering a heart attack in 2010, but an administrative law judge denied his application for benefits in April 2012.

While Penrod’s case was pending in the district court, he filed a second application for disability insurance benefits, alleging he was disabled because of arthritis, diabetes, high blood pressure, high cholesterol, short‐term memory loss and asthma.

A different ALJ held a hearing on Penrod’s second application for benefits in December 2014. When the second ALJ asked Penrod why he could not work, Penrod focused on the difficulty of finding a job with his limited education and job skills, having dropped out of high school in 11th grade.

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, kidney stones and obesity. He also confirmed suffering a second heart attack in September 2014.

A vocational expert confirmed jobs would be available given Penrod’s limitations. However, two months after that hearing, Penrod died from cardiac arrest. His late wife, Leta, then took his place in the subsequent proceedings.

Subsequently, the ALJ denied Penrod’s application for disability benefits on a five-step basis, concluding Penrod’s impairments could result in the types of symptoms he alleged, but the medical evidence did not support his testimony about the degree of limitations he experienced.

On appeal, Leta faulted the second ALJ for not reconciling her decision with that of the ALJ who denied Penrod’s first application. The ALJ who denied Penrod’s second application formulated a slightly different residual functional capacity than the first ALJ, which did not include a three- to five-minute bathroom break and increased potential hours of walking and standing in a day from four to six.

But the 7th Circuit noted that argument failed for lack of authority requiring an ALJ to use the same RFC that a different ALJ used in denying benefits for a prior period. Also, it found the second ALJ had made an accommodation that the applicant must be able to be off‐task 10 percent of the time, which offsets the elimination of the two bathroom breaks.

Next, Leta faulted 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 7th Circuit found that point “illogical and inconsistent with the record,” noting Leta’s argument did not explain how any latent heart problems imposed functional limitations before Penrod’s date last insured in June 2013.

Finally, Leta challenged the ALJ’s decision to give limited weight to Penrod’s testimony about his limitations, including a critique that the ALJ should not have discredited Penrod based on his inability to quit smoking.

“But the ALJ’s analytical error is harmless here because Leta does not explain how any lack of specific treatments made Penrod’s heart problems disabling before his date last insured,” Judge Diane Wood wrote for the court.

The 7th Circuit found Leta’s remaining arguments meritless and affirmed the Northern District court’s denial of disability benefits to the late Penrod in Leta Penrod v. Nancy Berryhill, 17‐2973.



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