Donna Weaver v. Nancy Berryhill
Opinion
NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604
Argued August 8, 2018 Decided August 20, 2018
Before
WILLIAM J. BAUER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 17‐3562
DONNA J. WEAVER, Appeal from the United States District Plaintiff‐Appellant, Court for the Northern District of Indiana, Fort Wayne Division.
v.
No. 1:16‐cv‐00268‐WCL‐SLC NANCY A. BERRYHILL, Acting Commissioner of Social Security, William C. Lee, Defendant‐Appellee. Judge.
O R D E R
Donna Weaver, a 67‐year‐old diabetic, appeals the district court’s judgment upholding the denial of her application for disability‐insurance benefits. An administrative law judge found that, despite her impairments, she could work at all exertional levels. Weaver challenges the adequacy of the ALJ’s assessment of her residual functional capacity and his finding that she was not entirely credible. On this record, the ALJ committed only harmless error by overlooking the medical opinion of a nontreating physician and did not make a patently wrong credibility finding. We therefore affirm the judgment.
Weaver applied in 2012 for disability‐insurance benefits based on her diabetes, right‐thumb amputation, nerve damage in her stomach (gastroparesis), thyroid problems, and kidney problems—ailments that, she said, rendered her unable to work as of the summer of 2011. Weaver, a high‐school graduate, spent most of her career as a machine operator at a paper company (1980–2006) and later worked as a retail stocker (2007–2008), an auditor clerk (2008–2009), a machine operator (2009–2011), and most recently as a part‐time cashier at a dollar store (2013–2014).
Weaver’s relevant medical records date back to 2006, when an endocrinologist, Dr. J. Matthew Neal, examined her type 1 diabetes and documented her trouble managing her hypoglycemic episodes. At spring appointments, Dr. Neal diagnosed her with swelling in her ankle and noted that she had a “severe” hypoglycemic episode at work. He opined that she had a “moderate” risk of having another episode and that she should avoid “heavy or hazardous machinery.” But he concluded that “she appeared well and fit for work.” Two months later, noting her continued poor control of her diabetes, Dr. Neal observed that “different insulin regimes” that she tried did “not appear to help.” About four months after that, Dr. Neal documented her “quite erratic” glucose levels and recommended that she eat more regularly. Weaver then lost her job at the paper company and, lacking health insurance, did not see Dr. Neal for 16 months.
At subsequent appointments in 2008 and 2009, Dr. Neal observed that Weaver continued to struggle with monitoring and managing her blood sugar. At an appointment in the winter of 2008, he advised her not to drive without first checking her blood sugar. About a year later, Dr. Neal found that her “glucose readings are quite poor” and that “she does have several complications of diabetes including possible early chronic kidney disease … and neuropathy.” Two months later, he determined that her control over her diabetes continued “to be erratic, probably complicated by her diet.” (She ate only one meal per day and said that she had “some aversion to food and some nausea.”) According to Dr. Neal, Weaver’s “symptoms certainly sound like gastroparesis” (impaired stomach muscles controlling food digestion).
After a 13‐month period without insurance and no medical visits, Weaver’s health deteriorated in mid‐2010, and she was treated for kidney failure and chronic kidney disease. During this time period, she also experienced recurring sinus headaches and went to the emergency room for lightheadedness, reporting that she was not taking her blood‐pressure medication because she was uninsured.
No. 17‐3562 Page 3
Over the next two years, Weaver lost weight, continued to have trouble controlling her diabetes, and visited an orthopedic surgeon. At appointments in September 2010 and January 2011, her primary‐care physician, Dr. Thomas Stewart, noted that she had lost weight because of irregular eating and was not effectively managing her blood sugar. Six months later, Dr. Stewart recorded her complaints of sinus headaches and noted that she continued to lose weight. At her appointment with the surgeon, Weaver was diagnosed with carpal tunnel syndrome in her right hand and two left‐hand trigger fingers and underwent trigger‐finger‐release surgery.
In July 2012, a state‐agency consultative examiner found that Weaver had no musculoskeletal or neurological abnormalities, opined that her diabetes and gastroparesis problems could be minimized with more effective dieting, and concluded that she “should avoid use of hazardous power equipment.” Weaver told the doctor that she could walk 12 blocks, lift up to 50 pounds, and stand for 8 to 12 hours per day. About a week later, another state examiner opined that Weaver had “no severe impairments” that would prevent her from working.
Dr. Stewart documented Weaver’s problems with swelling and managing her blood sugar in 2013 and 2014, and she suffered two hypoglycemic episodes that caused her to go to the emergency room in 2014. At three appointments between May 2013 and February 2014, Dr. Stewart recorded swelling in her hands and soft tissue. He also noted her complaints of having “on and off low blood sugars” and temporarily losing consciousness as a result of low blood sugar. Several months later, Weaver’s son took her to the emergency room during a hypoglycemic episode, and five months after that, Weaver had another episode while on the road, causing her to drive, with her grandson, into a ditch, crash her car, and return to the emergency room. Upon discharge, the E.R. doctor instructed: “Limited activity, Limited work, No heavy lifting.” The next day Dr. Stewart advised her to stop driving, but she rejected his suggestion and said that she would “check [her] blood sugar just before she drives.”
At a hearing in the fall of 2014 (after the Appeals Council had vacated the ALJ’s first decision denying Weaver benefits and remanded the case), Weaver testified that instances of her blood sugar significantly dropping had increased to three to four times per month and that she checked her blood sugar more often—about six to ten times per day instead of once per day as she had previously done. She also said that she had continued to lose weight as a result of regularly not feeling hungry and that at her part‐ time retail job, she had “dizzying spells” once or twice per three days of work and “maybe one” unscheduled break over the same period because of her blood sugar
No. 17‐3562 Page 4
dropping. (She said that her boss let her take breaks as needed.) She also had to leave work “a couple of times” because of hypoglycemic episodes and sinus headaches. The ALJ asked a vocational expert whether a person who could not work at unprotected heights or operate hazardous machinery could perform any of Weaver’s past jobs. The expert replied that this person could work as an auditor clerk or retail stocker.
The ALJ applied the five‐step analysis in 20 C.F.R. § 404.1520(a)(4), and found Weaver not disabled. The ALJ determined that she had not engaged in substantial gainful activity since the alleged onset date of July 1, 2011 (step one); that her diabetes mellitus was a severe impairment (step two); that this impairment did not equal a listed impairment (step three); that she had the residual functional capacity to perform a full range of work at all exertional levels, save for work at unprotected heights or around hazardous moving machinery; and that she could perform her past jobs as an auditor clerk and a retail stocker (step four).
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