IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Janet I. Dillard, :

Plaintiff, :

v. : Case No. 2:11-cv-080

Commissioner of Social Security, JUDGE MICHAEL H. WATSON

 Magistrate Judge Kemp

 Defendant. :

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Janet I. Dillard, filed this action seeking

review of a decision of the Commissioner of Social Security

denying her applications for disability benefits and supplemental

security income. Those applications were filed with a protective

filing date of June 13, 2007, and alleged that plaintiff became

disabled on February 28, 2003. At the administrative hearing,

she amended her alleged onset date to July 25, 2006. 

After initial administrative denials of her claim, plaintiff

was given a hearing before an Administrative Law Judge on

December 4, 2009. In a decision dated February 2, 2010, the ALJ

denied benefits. That became the Commissioner’s final decision

on January 4, 2011, when the Appeals Council denied review.

After plaintiff filed this case, the Commissioner filed the

administrative record on April 4, 2011. Plaintiff filed her

statement of specific errors on May 27, 2011. The Commissioner

filed a response on August 30, 2011. No reply brief has been

filed, and the case is now ready to decide.

II. The Lay Testimony at the Administrative Hearing

 Plaintiff’s testimony at the administrative hearing is found

at pages 38 through 64 of the record. Plaintiff, who was 63

years old at the time of the hearing and is a high school

graduate, testified as follows.

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Plaintiff was driven to the administrative hearing by her

son. She testified that she has never had a driver’s license due

to her diabetes. She last worked as a telephone solicitor but

that was not a full-time position. Before that, she had worked

as a cashier and stock person at a discount pharmacy. She had

held other cashier and stocker jobs at a discount stores before

that. Most of these jobs required her to lift 20 to 30 pounds.

Plaintiff testified that she is unable to work because she

cannot stand for long periods of time due to pain in her lower

back. She is unable to afford any treatment and takes only overthe-counter medications for the pain. In addition, she has

trouble with her legs hurting and burning. She also has diabetic

neuropathy in her feet.

Plaintiff also testified that she has passed out at various

times because of drops in her blood sugar. In addition,

variations in her blood sugar cause her to be confused. She also

has some arthritis in her hands and a frozen shoulder.

On a daily basis, plaintiff is able to clean her room and to

read. She can fix her own meals and do her own laundry. She

also shops for groceries and watches television. She takes

insulin four times a day for her diabetes and also takes blood

pressure medication. She is able to hear only through her left

ear and has a hearing aid in that ear. She suffers from episodes

of hyperglycemia at least twice a week and the episodes last for

as much as an hour. She also suffers from episodes of

hypoglycemia, and those episodes can last for half an hour after

she eats or drinks something. They can cause her to be exhausted

for the rest of the day.

III. The Medical Records

The medical records in this case are found beginning on page

237 of the administrative record. They can be summarized as

follows. Because plaintiff’s claims relate primarily to her

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cervical radiculopathy and her diabetes, records relating to

those impairments will be highlighted.

Plaintiff was seen by Dr. Lin in 2004 and again in 2006. 

Based on tests which he ran, he first diagnosed carpal tunnel

syndrome, bilateral ulnar mononeuropathy, and chronic cervical

radiculopathy at C7-8. Later, he stated that he suspected a

benign essential tremor as well. In between these two visits,

plaintiff underwent a right carpal total release and also had a

workup for carotid artery stenosis. (Tr. 237-52).

The file contains a number of records from Eastland Family

Health. They indicate that plaintiff was being treated for

hypoglycemia, insulin-dependent diabetes mellitus, and

hypertension. She was referred to Dr. Karne for evaluation of

her diabetes in 2007. He saw her on June 27, 2007 and noted that

she reported episodes of hypoglycemia 3 to 4 times per week and

that her fasting blood sugar ranged from 27-256. She reported a

large number of symptoms from which it was hard to detect a

pattern. Dr. Karne changed her insulin regimen and recommended

that she check her blood sugar four times daily. He arranged to

see her again in three months. (Tr. 268-83).

Dr. Gahman, a state agency reviewer, completed a physical

capacities evaluation report on September 13, 2007. He concluded

that plaintiff could lift 50 pounds occasionally and 25 pounds

frequently and that she could stand, walk, and sit about six

hours each in a workday. She had some other postural limitations

as well but no manipulative or visual limitations. However, she

would need to avoid exposure to hazards such as machinery or

heights. (Tr. 348-55). This was later confirmed by Dr.

Holbrook. (Tr. 362).

Dr. Karne saw plaintiff again on October 4, 2007. At that

time, she reported fatigue and dizziness and noted that her blood

sugars were mostly in the one hundreds at fasting but

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progressively increased over the course of the day. Her

hypoglycemic episodes were significantly reduced. He indicated

that her diabetes was still uncontrolled and he changed her

insulin regimen again. He scheduled another follow-up visit for

three months. (Tr. 356-58). When he saw her in March 2008, he

attributed her variable blood sugars to not counting

carbohydrates. At a June, 2008 visit, he saw improvement but

noted that her sugar was high because of dietary indiscretion,

and he described her diabetes as uncontrolled at that time. In

December, 2008, Dr. Karne indicated that plaintiff’s diabetes was

controlled and that her blood sugars had improved significantly

compared with the last visit. He wrote another letter after

seeing plaintiff on March 24, 2009 in which he indicated that

plaintiff’s blood sugars were reasonably well controlled but

slightly higher than the previous visit. (Tr. 368-80).

 IV. The Medical Expert Testimony

A medical expert, Dr. Cherdron, testified at the

administrative hearing. See Tr. 67-69. Dr. Cherdron testified

that there was evidence in the record that plaintiff suffered

from diabetes mellitus, insulin dependent, hypertension,

bilateral carpal tunnel syndrome with right release operation in

2005, carotid stenosis, a small left adrenal adenoma,

diverticulosis, and hearing loss. He noted that cervical

radiculopathy was “listed in the record” but he could not find it

in the evidence, and that osteoarthritis in the hips was

“questionable.” 

Dr. Cherdron further testified that plaintiff could lift 40

pounds occasionally and 20 to 25 pounds frequently. He thought

she could stand or sit for six hours each in a work day “with

appropriate breaks,” and walk four to six hours. He limited her

to occasional crouching, crawling, stooping, and climbing stairs,

and said she should never climb ropes or ladders or work around

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heights or hazardous and moving machinery. She also should avoid

extreme hot and cold temperatures due to her neuropathy.

In response to questions from plaintiff’s attorney, Dr.

Cherdron agreed that a diabetic whose disease is not under

control would have episodes of hyperglycemia or hypoglycemia. He

agreed that the way plaintiff described such episodes was

consistent with the way people with uncontrolled diabetes

experience them. 

 V. The Vocational Testimony

Mr. Hartung, a vocational expert, also testified at the

administrative hearing. See Tr. 69-72. He characterized

plaintiff’s past work as a cashier/checker as light and semiskilled. He was asked to assume that plaintiff had either the

limitations described in Exhibit 11F (the assessment done by Dr.

Gahman, the state agency reviewer) or those to which the medical

expert testified. In response, Mr. Hartung stated that plaintiff

could do the checker/cashier job, as well as a full range of

light and sedentary jobs and some medium jobs. However, if she

were as limited as her testimony at the hearing indicated, she

could not work due to the symptoms caused by her diabetic

condition. 

 VI. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 11

through 22 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

had not engaged in substantial gainful activity from her alleged

onset date of July 25, 2006 through the date of the decision. As

far as plaintiff’s impairments are concerned, the ALJ found that

plaintiff had severe impairments including insulin dependent

diabetes mellitus, peripheral vascular disease - carotid

stenosis, bilateral carpal tunnel syndrome, status post right

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carpal tunnel release, a hearing loss with an amplification

device, hypertension, diverticulosis/gastroesophageal reflux

disease, a small left adrenal adenoma, and cervical radiculopathy

with no electromyogram evidence. The ALJ also found that these

impairments did not meet or equal the requirements of any section

of the Listing of Impairments (20 C.F.R. Part 404, Subpart P,

Appendix 1).

Moving to the next step of the sequential evaluation

process, the ALJ found that plaintiff had the residual functional

capacity to lift 40 pounds occasionally and 20 to 25 pounds

frequently, to sit, stand and/or walk for six hours in an eighthour work day with appropriate breaks, and occasionally to climb

stairs, stoop, crouch, and crawl. She could not climb ropes or

scaffolds and was required to avoid heights and hazardous and

moving machinery. The ALJ accepted the vocational expert’s

testimony that someone with such limitations could perform

plaintiff’s past work as a cashier/checker. As a result, the ALJ

concluded that plaintiff had not demonstrated an entitlement to

benefits.

VII. Plaintiff’s Statement of Specific Errors

 In her statement of specific errors, plaintiff raises three

issues. She argues that the administrative decision improperly

relied on the opinion of Dr. Cherdron, that the treating

physician rule was not properly followed, and that there was no

definition or description of what Dr. Cherdron meant by

“appropriate breaks.” The Court reviews the administrative

decision under this legal standard:

Standard of Review. Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the

Commissioner] as to any fact, if supported by substantial

evidence, shall be conclusive. . . ." Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as

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adequate to support a conclusion'" Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.

NLRB, 305 U.S. 197, 229 (1938)). It is "'more than a mere

scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

Cir. 1976). The Commissioner's findings of fact must be based

upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th

Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.

1984). In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into

account whatever in the record fairly detracts from its weight.'" 

Beavers v. Secretary of Health, Education and Welfare, 577 F.2d

383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,

340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human

Services, 755 F.2d 495, 497 (6th Cir. 1985). Even if this Court

would reach contrary conclusions of fact, the Commissioner's

decision must be affirmed so long as that determination is

supported by substantial evidence. Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).

The Court notes, first, that a number of plaintiff’s

objections about Dr. Cherdron’s opinions do not constitute

adequate reasons for concluding that the ALJ was not entitled to

rely on them. For example, plaintiff chides both Dr. Cherdron

and the ALJ for failing to recognize that her cervical

radiculopathy (which the ALJ found to be a severe impairment) was

diagnosed on the basis of an EMG. She appears to be correct that

the record shows than an EMG was done in 2004, but the failure of

either Dr. Cherdron or the ALJ to acknowledge the basis for the

diagnosis does not appear to have affected their evaluation of

this impairment, and plaintiff does not argue that her cervical

radiculopathy caused limitations not taken into account in the

ALJ’s assessment of her residual functional capacity. 

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Plaintiff also criticizes Dr. Cherdron for coming up with a

residual functional capacity finding which is similar to that of

the state agency reviewers (and which was similar to an RFC

finding made in connection with plaintiff’s prior application for

benefits), and for being a pathologist rather than some other

type of physician. However, a pathologist has medical training

and there is no hard and fast rule (apart from specific statutory

provisions relating to children’s disability cases, see 42 U.S.C.

§1382c(a)(3)(I), which have no application here) that the medical

expert in a social security case specialize in the exact

condition or conditions from which the claimant suffers. Cf.

Jennings v. Astrue, 2009 WL 7387721 (E.D. Pa. November 30, 2009)

(no error in calling cardiologist to testify in case involving

orthopedic injuries), adopted and affirmed in part 2011 WL 338799

(E.D. Pa. January 31, 2011).

Further, it is clear that both the state agency reviewers

and Dr. Cherdron considered not only the prior adjudication, but

subsequent medical records, and that Dr. Cherdron made some

adjustments in the RFC based on those records. Thus, the record

does not support plaintiff’s claim that these sources simply

“regurgitated” the prior finding without reference to the

additional medical evidence submitted in support of plaintiff’s

most recent application for benefits. In short, none of these

arguments provides a basis for a ruling that the ALJ should have

afforded little or no weight to Dr. Cherdron’s testimony.

The more significant objection plaintiff makes to the ALJ’s

decision is that he did not credit the various reports from Dr.

Karne, plaintiff’s treating physician for her diabetes, to the

effect that her blood sugar was not well-controlled until

approximately two years after her alleged onset date. As the

Court has noted in the summary of the medical evidence recited

above, Dr. Karne made efforts over several years to get plaintiff

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to bring her blood sugar under control, but it was not until his

report of December, 2008, that he concluded that her diabetes was

well-controlled. Plaintiff argues that his reports, coupled with

her testimony or reports to him about the frequency of her

hyperglycemic and hypoglycemic episodes, constitute an opinion

from a treating physician as to disability, and that the ALJ did

not follow the prescribed process for discounting such an

opinion. See 20 C.F.R. §§404.1527, 416.927.

The ALJ clearly did not view this evidence in the same

fashion. Rather, the administrative decision makes it clear

that, in the ALJ’s view, neither Dr. Karne nor any other treating

source expressed an opinion as to disability; as the ALJ stated,

“a review of the record does not reveal that any of the

claimant’s physicians have ever suggested she is disabled and/or

unable to work.” (Tr. 21). For this reason, the ALJ did not do

the type of analysis required by the “treating physician rule,”

did not determine what weight to give the opinion of Dr. Karne

(beyond discussing how his reports related to the issue of

uncontrolled diabetes), and did not articulate reasons for

rejecting Dr. Karne’s views, if any, about plaintiff’s

disability. Thus, as properly phrased, the question plaintiff

raises is whether the ALJ should have considered Dr. Karne’s

statements about the extent to which plaintiff’s diabetes was

controlled as opinions concerning her ability to work. If so,

this case would have to be remanded for further articulation of

the reasons why his opinions were not given controlling weight. 

See, e.g., Wilson v. Comm’r of Social Security, 378 F.3d 541, 544

(6th Cir. 2004).

The Commissioner responds to this argument by stating that

“treatment notes like Dr. Karne’s that merely record observations

or a patient’s subjective complaints do not qualify as opinions

under agency regulations.” Commissioner’s Memorandum, Doc. #17,

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at 12. In support, the Commissioner cites to 20 C.F.R.

§040.4527(a)(2), which states that “Medical opinions are

statements from physicians and psychologists or other acceptable

medical sources that reflect judgments about the nature and

severity of your impairment(s), including your symptoms,

diagnosis and prognosis, what you can still do despite

impairment(s), and your physical or mental restrictions.” 

Although it is true that this regulation permits medical opinions

to include views on what a claimant can still do despite his or

her impairments and what the claimant’s physical or mental

restrictions are, it does not state that medical opinions must

contain such information; rather, any statement from an

acceptable source that “reflect[s] judgments about the nature and

severity of [an] impairment” would seem to fall into the defined

category of medical opinions. So Dr. Karne’s reports cannot be

rejected as an opinion from a treating source just because he did

not expressly state his view about plaintiff’s physical

restrictions.

This does not mean, however, that every medical opinion from

a treating source is subject to the “treating physician” rule

laid out in §404.1527(d)(2). That regulation restricts its

application to “a treating source’s opinion on the issue(s) of

the nature and severity of your impairment,” and provides that if

such an opinion “is not inconsistent with the other substantial

evidence in your case record, we will give it controlling

weight.” If it not afforded such weight, the ALJ is required to

“give good reasons ... for the weight [given to the] treating

source’s opinion.” Id; see Rogers v. Comm’r of Social Security,

486 F.3d 234, 242 (6th Cir. 2007). The question raised by this

regulation is, then, whether Dr. Karne’s reports are opinions “on

the issue(s) of the nature and severity” of plaintiff’s diabetes.

In a further effort to persuade the Court that they are not,

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the Commissioner cites to Bass v. McMahon, 499 F.3d 506, 510 (6th

Cir. 2007), for the proposition that “observations, without more,

are not the type of information from a treating physician which

will be provided great weight under 20 C.F.R. § 404.1513(b).” 

There, the observations made by the treating source did not rise

to the level of “medical judgments” and, as a result, “the ALJ

had no duty to give such observations controlling weight or

provide good reasons for not doing so.” Id. 

Here, it stretches the language and intent of the

regulations to say that the opinion of a treating physician about

the extent to which his patient’s diabetes is successfully

controlled is not a “medical judgment.” Dr. Karne did not simply

report (as the physician in Bass v. McMahon had done) his

observations of his patient’s behavior when she visited him;

rather, he used objective measures concerning her blood sugar

levels to decide if her diabetes was being controlled or not, and

made medical decisions - such as changing her medications and

their dosage - based on these measures. Other courts have

considered statements about whether a claimant’s diabetes is

controlled to be medical opinions subject to §404.1527(d). See,

e.g., Osborn v. Astrue, 2010 WL 2772480 (N.D. Ill. July 12,

2010). Thus, Dr. Karne, who is undisputedly a treating

physician, expressed medical judgments in his reports, and the

treating physician rule applies to those judgments.

It is true, of course, that “a treating physician's 

diagnosis is not by itself determinative of the ultimate

disability determination.” Canup v. Commissioner of Social

Security, 2009 WL 891736, *13 (S.D. Ohio March 31, 2009). 

Nevertheless, the fact that it is not determinative does not mean

that a diagnosis can never have an effect on the disability

determination. That is especially true where, as here, there was

testimony in the record that the episodes which plaintiff

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testified to were consistent with a diagnosis of uncontrolled

diabetes, and where the primary basis for the ALJ’s decision was

his conclusion that her diabetes was, contrary to the conclusion

apparently reached by Dr. Karne, under sufficient control during

the relevant time period that she could still do her past

relevant work. 

The ALJ’s decision seems to rest on two separate

conclusions. First, he found that the “evidence ... reflects

that once the claimant began to follow her doctor’s advice, her

blood sugars were ‘well controlled.’” (Tr. 18). Second, he

appears to have concluded that any evidence to the contrary, such

as Dr. Karne’s reports of February and June, 2008, could be

explained by plaintiff’s failure to follow Dr. Karne’s

instructions, such as her consumption of a “variable bedtime

snack,” her failure to count carbohydrates on a consistent basis,

or her “dietary indiscretions” while visiting her daughter. 

Thus, he stated that any fluctuations in her blood sugars before

Dr. Karne concluded that they were well-controlled were

“significantly due to the claimant’s own actions and inactions.” 

Id. He did not, however, invoke 20 C.F.R. § 404.1530(b), which

reads “[i]f you do not follow the prescribed treatment without a

good reason, we will not find you disabled,” as a basis for

denying benefits, nor does he appear to have followed the

required procedures if that, in fact, was the basis of the

decision to deny benefits. See, e.g., Social Security Ruling

82-59; Nunley v. Barnhart, 296 F.Supp.2d 702 (W.D. Va. 2003); see

also Franklin v. Astrue, 2010 WL 2667388 (S.D. Ohio June 10,

2010). Rather, despite making that statement, which seems to

imply that plaintiff might have been disabled due to uncontrolled

diabetes largely of her own making, the ALJ found that “the

greater weight of the evidence in the record demonstrates that

the claimant’s blood sugars are well controlled.”

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If the treating physician rule applies here - and the Court

holds that it does - the ALJ was not entitled to reject Dr.

Karne’s opinion about how well controlled plaintiff’s diabetes

actually was simply on the basis that “the greater weight of the

evidence in the record” points to a contrary conclusion. That

is, “it is not enough to dismiss a treating physician's opinion

as ‘incompatible’ with other evidence of record; there must be

some effort to identify the specific discrepancies and to explain

why it is the treating physician's conclusion that gets the

short end of the stick.” Friend v. Commissioner, 375 Fed. Appx.

543, 552 (6th Cir. April 28, 2010). The Court does not believe

that the administrative decision in this case clearly

articulates, in a way that would satisfy the requirements of

§404.1527(d) and the Court of Appeals’ decisions in cases such as

Wilson, supra, what other evidence contradicted Dr. Karne’s

findings, how much weight was assigned to his opinions, and the

reasons for that assignment. Additionally, the decision cannot

be sustained on the alternative ground that plaintiff was

disabled due to uncontrolled diabetes for at least a twelve-month

period following her onset date but was not entitled to benefits

because she did not follow a prescribed course of treatment, both

because that does not appear to have been the actual reason for

the decision to deny benefits, and because of the lack of

compliance with SSR 82-59. A remand is required in order to

permit these issues to be addressed.

This disposition makes it unnecessary to rule on plaintiff’s

last statement of error concerning what was meant by “appropriate

breaks” when the ALJ and the experts used that term. It seems

that the Commissioner’s argument on this point is the more

persuasive - that they all understood the phrase to mean those

breaks which are normally taken and permitted during a work day -

but a remand will give the Commissioner an opportunity to clarify

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this point.

 VIII. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors be sustained and that this case

be remanded to the Commissioner for further proceedings pursuant

to 42 U.S.C. §405(g), sentence four.

IX. Procedure on Objections

If any party objects to this Report and Recommendation,

that party may, within fourteen (14) days of the date of this

Report, file and serve on all parties written objections to

those specific proposed findings or recommendations to which

objection is made, together with supporting authority for the

objection(s). A judge of this Court shall make a de novo

determination of those portions of the report or specified

proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may

accept, reject, or modify, in whole or in part, the findings

or recommendations made herein, may receive further evidence

or may recommit this matter to the magistrate judge with

instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to

object to the Report and Recommendation will result in a

waiver of the right to have the district judge review the

Report and Recommendation de novo, and also operates as a

waiver of the right to appeal the decision of the District

Court adopting the Report and Recommendation. See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d

947 (6th Cir. 1981).

/s/ Terence P. Kemp 

United States Magistrate Judge

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