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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

AMY GRANNON, 

 Plaintiff, 

 vs. Civil Action 2:12-CV-494 

 Judge Graham 

 Magistrate Judge King 

MICHAEL J. ASTRUE, Commissioner 

of Social Security, 

 Defendant. 

REPORT AND RECOMMENDATION

 This is an action instituted under the provisions of 42 U.S.C. §405(g) 

for review of a final decision of the Commissioner of Social Security 

denying plaintiff’s application for supplemental security income. This 

matter is now before the Court on plaintiff’s Statement of Errors, Doc. 

No. 14, the Commissioner’s Memorandum in Opposition, Doc. No. 17, and 

plaintiff’s Reply, Doc. No. 18. 

 Plaintiff Amy Grannon filed her current application for benefits on 

November 27, 2007, alleging that she has been disabled since January 1, 

2006, as a result of bipolar disorder and depression. PageID 219. The 

application was denied initially and upon reconsideration, and plaintiff 

requested a de novo hearing before an administrative law judge. 

 A hearing was held on October 19, 2010, at which plaintiff, 

represented by counsel, appeared and testified, as did Paul F. Gatens, M.D., 

who testified as a medical expert, and Jerry A. Olsheski, who testified 

as a vocational expert. In a decision dated January 7, 2011, the 

administrative law judge concluded that plaintiff was not disabled. PageID

51-61. That decision became the final decision of the Commissioner of Social 

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Security when the Appeals Council declined review on April 23, 2012. PageID

42-44. 

 Plaintiff was 32 years of age on the date she filed her current 

application for benefits. PageID 60, 72-73. She has a tenth grade, 

“limited,” education, PageID 224, and past relevant work experience as a 

car driver for an auto auction, a cashier, a factory worker and a meat cutter 

at a grocery store. PageID 220. 

The Evidence of Record1

 On October 8, 2007, plaintiff was admitted to the psychiatric unit 

of Genesis Good Samaritan Hospital (“Genesis”) for depression and bipolar 

affective disorder. PageID 317-23. Plaintiff reported to Mukesh Rangwani, 

M.D., that she had not consulted a psychiatrist even though she is “kind 

of depressed” and had entertained thoughts of death. PageID 317-18. Dr. 

Rangwani characterized plaintiff as outgoing and social and noted that she 

had complied with treatment and had interacted quite appropriately with 

staff and other patients. PageID 317. According to Dr. Rangwani, 

plaintiff’s memory was intact, she was thought to be of average 

intelligence, and she exhibited fair grooming and hygiene. PageID 320. Dr. 

Rangwani diagnosed bipolar affective disorder, mixed, and assessed 

plaintiff’s Global Assessment of Functioning (GAF) at 50, which is 

indicative of serious dysfunction. Id. Plaintiff’s psychotropic 

medications were adjusted and she was discharged two days later. Id.

 Plaintiff began treatment at Six Counties, Inc., in November 2007. 

PageID 328-39. Amy Green, a therapist, reported that plaintiff 

experiences depressive symptoms daily, but is not suicidal. PageID 336. 

 

1 Plaintiff challenges only the residual functional capacity assessment related 

to plaintiff’s mental impairments. See PageID 1043. The Court will therefore limit 

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Ms. Green diagnosed bipolar disorder I, mixed, moderate, and borderline 

personality disorder. PageID 337. Wheaton B. Wood, M.D., also examined 

plaintiff and managed her medications. PageID 324-26. Dr. Wood 

characterized plaintiff as quite irritable; she had poor concentration but 

slept well. PageID 325. Plaintiff also demonstrated disproportionate 

anger. Id. Dr. Wood diagnosed Bipolar II, r/o borderline personality 

disorder, and alcohol abuse in sustained full remission. Id. In December 

2007, Dr. Wood adjusted plaintiff’s medication. PageID 436-37. 

 State agency psychologist Robelyn Marlow, Ph.D., reviewed the file 

in January 2008. PageID 387-405. According to Dr. Marlow, plaintiff was 

moderately restricted in her activities of daily living, in maintaining 

social functioning, and in the areas of concentration, persistence and 

pace. PageID 397. Plaintiff was moderately limited in her abilities to 

maintain attention and concentration for extended periods, accept 

instructions and respond appropriately to criticism from supervisors, get 

along with coworkers or peers without distracting them or exhibiting 

behavioral extreme, respond appropriately to changes in the work setting, 

and complete a normal workday and workweek without interruptions from 

psychologically based symptoms and to perform at a consistent pace without 

an unreasonable number and length of rest periods. PageID 401-02. Dr. Marlow 

concluded that plaintiff can perform simple, steady, repetitive work and 

can choose to relate appropriately. Id. 

 Plaintiff continued to treat with Ms. Green and Dr. Wood at Six 

Counties through at least October 2009. PageID 433-46, 505-51, 636-72. 

Plaintiff’s complaints included sleep problems, depressed mood, suicidal 

ideation and anger problems. Id. Diagnoses included major depressive 

 

its discussion of the record to the evidence of plaintiff’s claimed mental 

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disorder and borderline personality disorder. Id. In February 2008, 

plaintiff reported to Ms. Green that she “want(s) to go back to the hospital 

where it was quiet” and that family conflicts prompted suicidal thoughts 

upon which she would not act. PageID 395. In April 2008, plaintiff asked 

Ms. Green if she had to report thoughts of hurting herself before she could 

return to the hospital. PageID 507. Ms. Green responded that plaintiff could 

not “vacation” at the hospital. Id. Two days later, plaintiff was tearful 

and depressed and exhibited a flat affect. PageID 527. 

Plaintiff was admitted to Genesis for 3 days in May 2008 for suicidal 

ideation with a history of affective disorder and noncompliance with 

medication. PageID 760-62. She complained of family conflict and financial 

problems. PageID 760. Dr. Rangwani characterized plaintiff as depressed 

and isolative. Medication was resumed and plaintiff responded well to 

therapy. Plaintiff was discharged after denying suicidal or homicidal 

ideation. Id. 

In June 2008, Ms. Green noted that plaintiff was calm and that her 

symptoms had improved; plaintiff had not been compliant with her 

medications, however. PageID 505. According to Ms. Green, plaintiff’s 

personality disorder continued to predominate. Id. 

Plaintiff returned to Genesis ten days later after ingesting Ambien. 

PageID 553-63. 

 State agency psychologist Steven Meyer, Ph.D., reviewed the record 

on June 26, 2008. PageID 564. Dr. Meyer noted several additional brief 

in-patient hospitalizations for stabilization after suicidal gestures. Dr. 

Meyer attributed these episodes to plaintiff’s increasing desire for 

 

impairments.

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hospitalization rather than to any additional limitation or significant 

decrease in her ability to function. Id.

 In October 2008, Dr. Wood characterized plaintiff as a “[v]ery 

depressed borderline patient” and rendered diagnoses of borderline 

personality disorder and major depressive disorder, recurrent atypical 

type. PageID 648. According to Dr. Wood, plaintiff is “a very 

self-distorted, powerless feeling person who has enormous amounts of anger 

and rage and this will define the treatment more than any diagnostic label.” 

PageID 649. 

 Plaintiff was again hospitalized for depression and suicidal thoughts 

in January 2009 (PageID 745-49), March 2009 (PageID 896-901), April 2009 

(PageID 742-44) and on September 4, 2009 (PageID 908-18). 

 Plaintiff presented to the emergency room at Fairfield Medical Center 

on September 19, 2009 following an overdose of Ambien. PageID 854-71. She 

refused to attend counseling sessions but did take her medications. She 

was discharged five days later, in a stabilized condition and with 

medications. PageID 868. 

 Charles Loomis, M.Ed., performed a consultative psychological 

evaluation on behalf of the state agency on February 18, 2010. PageID

579-87. Plaintiff reported crying spells, poor appetite, sleep 

difficulties and a low sense of self worth. PageID 581. According to Mr. 

Loomis, plaintiff’s mood was appropriate although she presented with some 

symptoms of depression. Id. There were no abnormalities of mental content. 

Plaintiff appeared to be functioning in the average range of intelligence. 

PageID 582. Mr. Loomis diagnosed a mood disorder and personality disorder. 

PageID 583. He assigned a GAF score of 55, which is suggestive of moderate 

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dysfunction. Id. According to Mr. Loomis, plaintiff’s mental ability to 

relate to others was not impaired nor was her ability to understand, 

remember, and follow complex instructions. Her ability to maintain 

attention and concentration was not impaired. Her ability to cope with the 

ordinary stresses and pressures of competitive work was moderately 

impaired. PageID 584. 

 Plaintiff was again hospitalized at Genesis on June 6, 2010, for 

complaints of ongoing suicidal ideation and depression. PageID 950-68. 

She asked that her medications be changed. PageID 954. She was discharged 

once her condition was stabilized. PageID 960. 

 The record also contains a Mental Residual Functional Capacity 

Assessment completed on October 19, 2010 by John Bova.1

 According to Mr. 

Bova, plaintiff had poor or no ability to respond appropriately to changes 

in routine settings, work in coordination with or proximity to others 

without being unduly distracted or distracting, deal with work stresses, 

or socialize. PageID 1036-37. Plaintiff had a fair ability to complete a 

normal workday and work week without interruption from psychologically 

based symptoms and to perform at a consistent pace without an unreasonable 

number and length of rest periods. Id. Mr. Bova believed that, even when 

stable on medication, plaintiff would still be anxious in crowds and social 

situations. PageID 1037. 

 Plaintiff testified at the administrative hearing that she continues 

to experience crying spells and severe mood swings, particularly without 

her medication. There are days during which she does not get out of bed. 

PageID 85. She described feelings of worthlessness and episodes of 

 

1

The record does not reflect John Bova’s credentials. 

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suicidal ideation. PageID 86. Her medications cause drowsiness and nausea. 

PageID 88. She also reported problems with concentration and memory. Id. 

 Plaintiff testified that her husband performs all household chores 

and cares for the children. PageID 89-91. She drives twice per day. PageID

99. On a typical day, 

I get up at 10:00 o’clock, I don’t want to, but I have to. I get 

up at 10:00 o’clock and take my medicine and I’ll sit in my 

recliner and then I’ll get up -- well, I don’t sit in it all day. 

I’ll get up after I get done taking my medicine, I will check 

the mail or whatever and then I get up and I try to clean the 

front room up a little bit and then I’ll sit down and take a break 

and check my daughter's homework because she’s home schooled. 

I have to do that on the computer. And then I try to do the dishes. 

What I can’t finish, my husband will end up doing. And then after 

that, it’s about time to take a nap. I lay down and take a nap. 

PageID 90. She naps 90 minutes to 2 hours a day and sleeps 5 or 6 hours at 

night. PageID 90, 92. She has difficulty maintaining her personal hygiene. 

PageID 100. She becomes aggravated talking to people. PageID 101. 

 Jerry A. Olsheski, the vocational expert, was asked by the 

administrative law judge to assume a claimant with plaintiff’s vocational 

profile with the mental limitations and restrictions articulated by Dr. 

Marlow, the state agency reviewing psychologist, PageID 403: i.e., able 

to concentrate and persist at simple tasks, relate appropriately if she 

chooses to, and work at a steady pace to sustain simple, repetitive work. 

PageID 112. In response, the vocational expert testified that such a claimant 

could perform work as an unskilled assembler, unskilled inspector and 

unskilled sedentary hand packer. PageID 113. 

Administrative Decision 

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 In his decision, the administrative law judge characterized 

plaintiff’s severe impairments as degenerative joint disease, 

osteoarthritis of the knees, bipolar and borderline personality disorder, 

and obesity. PageID 53. The administrative law judge also determined that 

plaintiff does not suffer an impairment or combination of impairments that 

meets or medically equals any listed impairment. PageID 54. The 

administrative law judge specifically considered, but rejected, any 

suggestion that plaintiff is disabled under Listings 12.04 (affective 

disorder) or 12.08 (personality disorders). Specifically, the 

administrative law judge determined that plaintiff was moderately 

restricted in her activities of daily living, had moderate difficulties in 

social functioning and had moderate difficulties in the areas of 

concentration, persistence or pace. There was no objective medical 

evidence that she had experienced episodes of decompensation. PageID

55-56. The administrative law judge also made clear that plaintiff’s 

residual functional capacity reflected this degree of limitation. PageID

56. 

 The administrative law judge found that plaintiff has the residual 

functional capacity to 

Perform sedentary work as defined in 20 CFR 416.967(a) except 

the claimant is limited to occasional climbing of stairs. The 

claimant must avoid bending, squatting, stooping, crouching, and 

climbing ladders. Furthermore, the claimant must avoid all 

exposure to hazardous equipment, and the claimant must have the 

option to change position or alternate between sitting and 

standing at least every 30 minutes. 

PageID 56-57. This portion of the administrative law judge’s decision made 

no mention of the moderate limitations of function found to have resulted 

from plaintiff’s documented severe mental impairments. However, the 

administrative law judge expressly stated that he accorded “great weight” 

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to the mental assessment of Dr. Marlow, the state agency psychological 

consultant, “because it is consistent with the whole of the objective medical 

evidence.” PageID 59. The administrative law judge gave “little weight” 

to Mr. Bova’s opinion “because the longitudinal records does [sic] not 

support such severe limitations.” Id.

 Relying on the vocational expert’s testimony, the administrative law 

judge found that plaintiff is able to perform a significant number of jobs 

in the national economy. PageID 60-61. Accordingly, the administrative law 

judge concluded that plaintiff was not disabled within the meaning of the 

Social Security Act. PageID 61. 

DISCUSSION

 Pursuant to 42 U.S.C. §405(g), judicial review of the Commissioner’s 

decision is limited to determining whether the findings of the 

administrative law judge are supported by substantial evidence and employed 

the proper legal standards. Richardson v. Perales, 402 U.S. 389 (1971). 

Substantial evidence is more than a scintilla of evidence but less than a 

preponderance; it is such relevant evidence as a reasonable mind might accept 

as adequate to support a conclusion. See Buxton v. Halter, 246 F.3d 762, 

772 (6th Cir. 2001); Kirk v. Secretary of Health & Human Servs., 667 F.2d 

524, 535 (6th Cir. 1981). This Court does not try the case de novo, nor does 

it resolve conflicts in the evidence or questions of credibility. See 

Brainard v. Secretary of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 

1989); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). 

 In determining the existence of substantial evidence, this Court must 

examine the administrative record as a whole. Kirk, 667 F.2d at 536. If the 

Commissioner’s decision is supported by substantial evidence, it must be 

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affirmed even if this Court would decide the matter differently, see Kinsella 

v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983), and even if substantial 

evidence also supports the opposite conclusion. Longworth v. Comm’r Soc. 

Sec., 402 F.3d 591, 595 (6th Cir. 2005). 

 In her Statement of Errors, plaintiff contends that the administrative 

law judge erred by failing to include any mental limitations in his residual 

functional capacity assessment, despite finding that plaintiff has moderate 

limitations in activities of daily living, social functioning, and 

concentration and pace. Doc. No. 14 at PageID 1049; Reply, Doc. No. 18. 

The Commissioner takes the position that this omission was tantamount to 

a clerical or typographical error and was, under the circumstances, 

harmless. Memorandum in Opposition, Doc. No. 17, PageID 1070. This Court 

agrees. 

Dr. Marlow, the state agency reviewing psychologist, opined that 

plaintiff suffered moderate restrictions in activities of daily living, in 

maintaining social functioning and in concentration, persistence and pace. 

Plaintiff was, Dr. Marlow found, moderately limited in a number of other 

work-related areas of functioning. PageID 397-402. According to Dr. 

Marlow, plaintiff could concentrate and persist at simple, steady, 

repetitive work and could choose to relate appropriately. Id. 

The administrative law judge incorporated Dr. Marlow’s assessment in 

the hypothetical posed to the vocational expert, PageID 112, and upon which 

the administrative law judge relied. In his decision, the administrative 

law judge expressly accorded “great weight” to Dr. Marlow’s opinions and 

assessment, PageID 59, and expressed his intention to include plaintiff’s 

moderate limitations of function caused by her mental impairments in 

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plaintiff’s residual functional capacity assessment. PageID 56 

(“Therefore, the following residual functional capacity assessment reflects 

the degree of limitation the undersigned has found in the ‘paragraph B’ 

mental function analysis.”) It is clear that, under these circumstances, 

the failure of the administrative law judge to later expressly and separately 

articulate those limitations in his assessment of plaintiff’s residual 

functional capacity, PageID 56-57, was mere clerical oversight or 

typographical error. 

Moreover, that error was harmless. Read fairly, the decision of the 

administrative law judge was based on an assessment of plaintiff’s residual 

functional capacity that included moderate limitations of functioning by 

reason of plaintiff’s documented mental impairments. Plaintiff does not 

appear to challenge that assessment but rather appears to argue only that 

the administrative law judge’s failure to expressly incorporate those 

moderate limitations of functioning into the language reflected at PageID

56-57 of his decision requires reversal. To reverse with directions to 

expressly incorporate into the residual functional capacity assessment the 

moderate limitations already clearly found and relied upon by the 

administrative law judge would be to demonstrate the harmless nature of the 

administrative law judge’s error. The Court declines to do so. 

It is therefore RECOMMENDED that the decision of the Commissioner be 

affirmed and that this action be dismissed. 

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 If any party seeks review by the District Judge of this Report and 

Recommendation, that party may, within fourteen (14) days, file and serve 

on all parties objections to the Report and Recommendation, specifically 

designating this Report and Recommendation, and the part thereof in 

question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1); 

F.R. Civ. P. 72(b). Response to objections must be filed within fourteen 

(14) days after being served with a copy thereof. F.R. Civ. P. 72(b). 

 The parties are specifically advised that failure to object to the 

Report and Recommendation will result in a waiver of the right to de novo 

review by the District Judge and 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); Smith v. Detroit Federation of Teachers, Local 231 etc., 

829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d 947 (6th 

Cir. 1981). 

 s/Norah McCann King 

Norah McCann King 

 United States Magistrate Judge 

June 25, 2013

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