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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

MELISSA ANN FLANNERY, 

Plaintiff, 

vs. Civil Action 2:11-CV-1120 

Judge Frost 

Magistrate Judge King 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

OPINION AND ORDER 

This action seeks review of the administrative decision denying 

plaintiff’s application for disability insurance benefits and 

supplemental security income. On January 28, 2013, the United States 

Magistrate Judge recommended that the decision of the Commissioner of 

Social Security be affirmed and that the action be dismissed. Report 

and Recommendation, Doc. No. 17. This matter is now before the Court 

on plaintiff’s objections to that recommendation. Plaintiff’s 

Objections to Report and Recommendation (“Plaintiff’s Objections”), 

Doc. No. 18. The Court will consider the matter de novo. See 28 

U.S.C. § 636(b); Fed. R. Civ. P. 72(b). 

The administrative law judge found that plaintiff’s severe 

impairments consist of mild osteoarthritis of the knees, degenerative 

disc disease at L5-S1, right shoulder pain, anxiety disorder, 

depressive disorder, and personality disorder. PAGEID 49. The 

administrative law judge also found that plaintiff’s impairments 

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neither meet nor equal a listed impairment and leave plaintiff with 

the residual functional capacity (“RFC”) to 

lift and carry 10 pounds occasionally and five pounds 

frequently. The Claimant can stand or walk a total of two 

hours during an eight-hour workday. She can sit a total of 

six hours during an eight-hour workday. The claimant can 

never climb ladders, ropes, or scaffolds. She can 

occasionally climb ramps and stairs, balance, stoop, kneel, 

crouch, and crawl. The claimant must avoid concentrated 

exposure to vibration and workplace hazards. She is 

limited to simple routine repetitive tasks. The claimant 

cannot raise her non-dominant arm about her shoulder. She 

is limited to occasional contact with co-workers and the 

public. 

PAGEID 51. Although this RFC precluded plaintiff’s past relevant 

work, the administrative law judge relied on the testimony of the 

vocational expert to find that plaintiff is able to perform a 

significant number of jobs in the national economy. PAGEID 56-57. 

Accordingly, the administrative law judge concluded that plaintiff was 

not disabled within the meaning of the Social Security Act. PAGEID 

58. 

 In the Statement of Errors considered by the Magistrate Judge, 

plaintiff challenged, inter alia, (1) the Commissioner’s failure to 

include bipolar disorder as a severe impairment and (2) the 

Commissioner’s alleged failure to include all of the limitations 

caused by plaintiff’s severe impairments in the RFC and in the 

hypothetical question posed to the vocational expert. The Magistrate 

Judge rejected both of plaintiff’s arguments. 

 Specifically, the Magistrate Judge concluded that there was 

substantial support in the record for the administrative law judge’s 

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failure to include bipolar disorder as a severe impairment because 

only Heidi Jache, M.D., expressly diagnosed this condition; the 

consultative examiner and the state agency psychologists did not 

include bipolar disorder among the conditions documented in the 

record. Report and Recommendation, p. 12. The Magistrate Judge 

further noted that, in any event, plaintiff did not articulate any 

additional limitation of function caused by her claimed bipolar 

disorder. Id. at p. 13. The Magistrate Judge also rejected 

plaintiff’s challenge to the administrative law judge’s RFC 

assessment. Plaintiff argued in her Statement of Errors that the 

administrative law judge failed to include all of the limitations 

noted by Gary Sarver, Ph.D., in her RFC assessment. Statement of 

Errors, Doc. No. 11, p. 5. The Magistrate Judge specifically 

addressed the limitations proposed by Dr. Sarver and the state agency 

psychologists and found that the “administrative law judge=s finding 

that plaintiff had the residual functional capacity, from a mental 

standpoint, to perform simple, routine, repetitive tasks that require 

only occasional contact with co-workers and the public is consistent 

with these assessments and enjoys substantial support in the record.” 

Report and Recommendation, pp. 13-14. 

 Plaintiff’s objections raise the same arguments presented in her 

Statement of Errors and considered by the Magistrate Judge. In 

addition, plaintiff argues that the limitation in her RFC to “simple 

routine repetitive tasks” is “not adequate to convey the moderate 

limitations in [her] ability to maintain concentration, persistence, 

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and pace.” Plaintiff’s Objections, p. 2. Plaintiff now attributes 

these limitations to her claimed bipolar disorder. Plaintiff does 

not, however, cite any medical opinion suggesting a limitation in 

concentration, persistence, or pace and this Court has found none in 

the record. See PAGEID 349-50 (Dr. Sarver’s July 13, 2010 report 

finding plaintiff’s concentration, persistence, and pace to be 

appropriate), 363 (Dr. Zwissler’s July 17, 2010 opinion that plaintiff 

had no difficulty in maintaining concentration, persistence, or pace). 

Accordingly, this is not, as plaintiff suggests, a case where the 

administrative law judge completely omitted from the claimant’s RFC a 

moderate limitation otherwise found by the administrative law judge or 

failed to adequately portray the claimant’s impairments in the 

hypothetical posed to the vocational expert. See Ealy v. Comm’r of 

Soc. Sec., 594 F.3d 504, 516-19 (6th Cir. 2010) (remanding where the 

administrative law judge completely omitted speed and pace 

restrictions from the hypothetical to the vocational expert). There 

is simply no error in omitting a limitation that was not found by the 

administrative law judge and which was not supported by the medical 

evidence. 

 The Court has carefully considered plaintiff’s objections, as 

well as the entire record in this action. For the foregoing reasons 

and for the reasons articulated in the Report and Recommendation, the 

Court concludes that those objections are without merit. 

Plaintiff’s Objections, Doc. No. 18, are OVERRULED. The Report 

and Recommendation, Doc. No. 17, is ADOPTED AND AFFIRMED. The 

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decision of the Commissioner of Social Security is AFFIRMED. This 

action is hereby DISMISSED. 

The Clerk shall enter FINAL JUDGMENT pursuant to Sentence 4 of 

42 U.S.C. § 405(g). 

 /s/ Gregory L. Frost 

 Gregory L. Frost 

 United States District Judge 

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