1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JAMIE MAULDIN, Case No. 1:17-cv-868

Plaintiff, Barrett, J.

Bowman, M.J.

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

REPORT AND RECOMMENDATION

Plaintiff Jamie Mauldin filed this Social Security appeal in order to challenge the 

Defendant’s finding that she is not disabled. See 42 U.S.C. §405(g). Proceeding through 

counsel, Plaintiff presents a single claim of error for this Court’s review. As explained 

below, I conclude that the ALJ’s finding of non-disability should be AFFIRMED, because 

it is supported by substantial evidence in the record as a whole.

I. Summary of Administrative Record

In July 2014, Plaintiff filed applications for Disability Insurance Benefits (“DIB”) and 

for Supplemental Security Income (“SSI”), alleging disability beginning on August 17, 

2012 due to a combination of mental and physical impairments that Plaintiff alleges were 

exacerbated following a June 2012 car accident. After her claim was denied initially and 

upon reconsideration, Plaintiff requested an evidentiary hearing before an ALJ. 

On September 16, 2016, a hearing was conducted by video-conference. Plaintiff

appeared in Cincinnati, Ohio with a non-attorney representative and gave testimony 
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before ALJ Catherine Ma, who was located in Cleveland. A vocational expert also 

testified. (Tr. 30-75). 

Plaintiff was 42 years old on the date of her alleged disability and remained in the 

same “younger individual” age category at the time of the ALJ’s decision. Plaintiff lives 

with her husband in a three-level townhouse. She has a bachelor’s degree and past 

relevant work as a social worker, a substance abuse counselor, a school-based 

counselor, and as an assistant store manager. All prior work was considered “skilled.” 

On November 28, 2016, the ALJ issued an adverse written decision, concluding 

that Plaintiff is not disabled. (Tr. 12-23). The ALJ determined that Plaintiff has severe 

impairments of: “affective disorder, including depression, anxiety disorders, fibromyalgia, 

obesity, and degenerative disc disease.” (Tr. 15). Although Plaintiff had alleged that she 

was also disabled due to migraines, irritable bowel syndrome, macular degeneration, and 

partial rotator cuff tear of the right shoulder (Tr. 35),1the ALJ determined that none of 

those alleged impairments could be considered to be severe. (Tr. 15). In this judicial 

appeal, Plaintiff does not challenge the ALJ’s findings concerning which impairments 

were severe, nor does she dispute the determination that none of her impairments, either 

alone or in combination, met or medically equaled any Listing in 20 C.F.R. Part 404, 

Subpart P, Appendix 1, such that Plaintiff would be entitled to a presumption of disability. 

(Tr. 16). 

 

1At the hearing, Plaintiff included insomnia and PTSD as additional impairments. (Tr. 35, counsel’s 

statement that “I guess insomnia would be considered a physical impairment”; see also Tr. 59, Plaintiff’s 

testimony about counseling “in the past” for PTSD). Although the ALJ’s opinion discusses Plaintiff’s 

complaints of drowsiness, (Tr. 19), the opinion does not specifically reference insomnia or PTSD. However, 

Plaintiff’s Statement of Errors does not allege any specific error concerning insomnia or PTSD. 
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The ALJ agreed that Plaintiff can no longer perform her prior skilled work due to 

her mental limitations, but found that she retains the residual functional capacity (“RFC”) 

to perform a restricted range of medium unskilled work, subject to the following limitations:

[S]he must never climb ladders, ropes or scaffolds. The claimant can 

frequently climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. 

She must never be exposed to hazards. The claimant is limited to 

performing simple and routine tasks and is limited to routine workplace 

changes. She can have occasional interaction with the public.

(Tr. 23). Considering Plaintiff’s age, education, and RFC, and based on testimony from 

the vocational expert, the ALJ determined that Plaintiff could still perform a “significant 

number” of jobs in the national economy, including the representative jobs of kitchen 

helper, laundry worker, and hand packager. (Tr. 23). Therefore, the ALJ determined that 

Plaintiff was not under a disability. The Appeals Council denied further review, leaving 

the ALJ’s decision as the final decision of the Commissioner.

In her appeal to this Court, Plaintiff argues that the ALJ’s finding that she can 

engage in sustained work activity is not supported by substantial evidence in the record 

as a whole. 

II. Analysis

A. Judicial Standard of Review

To be eligible for benefits, a claimant must be under a “disability.” See 42 U.S.C. 

§1382c(a). Narrowed to its statutory meaning, a “disability” includes only physical or 

mental impairments that are both “medically determinable” and severe enough to prevent 

the applicant from (1) performing his or her past job and (2) engaging in “substantial 

gainful activity” that is available in the regional or national economies. See Bowen v. City 

of New York, 476 U.S. 467, 469-70 (1986). 
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When a court is asked to review the Commissioner’s denial of benefits, the court’s 

first inquiry is to determine whether the ALJ’s non-disability finding is supported by 

substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “such relevant 

evidence as a reasonable mind might accept as adequate to support a conclusion.” 

Richardson v. Perales, 402 U.S. 389, 401 (1971) (additional citation and internal quotation 

omitted). In conducting this review, the court should consider the record as a whole. 

Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports 

the ALJ’s denial of benefits, then that finding must be affirmed, even if substantial 

evidence also exists in the record to support a finding of disability. Felisky v. Bowen, 35 

F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained:

The Secretary’s findings are not subject to reversal merely because 

substantial evidence exists in the record to support a different conclusion.... 

The substantial evidence standard presupposes that there is a ‘zone of 

choice’ within which the Secretary may proceed without interference from 

the courts. If the Secretary’s decision is supported by substantial evidence, 

a reviewing court must affirm.

Id. (citations omitted). 

In considering an application for supplemental security income or for disability 

benefits, the Social Security Agency is guided by the following sequential benefits 

analysis: at Step 1, the Commissioner asks if the claimant is still performing substantial 

gainful activity; at Step 2, the Commissioner determines if one or more of the claimant’s 

impairments are “severe;” at Step 3, the Commissioner analyzes whether the claimant’s 

impairments, singly or in combination, meet or equal a Listing in the Listing of 

Impairments; at Step 4, the Commissioner determines whether or not the claimant can 

still perform his or her past relevant work; and finally, at Step 5, if it is established that 

claimant can no longer perform his or her past relevant work, the burden of proof shifts to 

the agency to determine whether a significant number of other jobs which the claimant 
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can perform exist in the national economy. See Combs v. Commissioner of Soc. Sec., 

459 F.3d 640, 643 (6th Cir. 2006); 20 C.F.R. §§404.1520, 416.920. 

A plaintiff bears the ultimate burden to prove by sufficient evidence that she is 

entitled to disability benefits. 20 C.F.R. § 404.1512(a). A claimant seeking benefits must 

present sufficient evidence to show that, during the relevant time period, she suffered an 

impairment, or combination of impairments, expected to last at least twelve months, that 

left her unable to perform any job. 42 U.S.C. § 423(d)(1)(A). 

B. Substantial Evidence Supports the ALJ’s Findings

The ALJ’s non-disability determination must stand if it is supported by substantial 

evidence in the record as a whole. See Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 

1993). In addition, the ALJ alone is responsible for determining what limitations to include 

in an individual’s residual functional capacity. See 20 C.F.R. § 404.1546(c). If the 

hypothetical RFC formulated by the ALJ is supported by the record, a vocational expert’s 

testimony that an individual can engage in a substantial number of jobs will constitute 

substantial evidence to support the non-disability determination. Varley v. Sec’y of HHS, 

820 F.2d 777 (6th Cir. 1987). 

In her Statement of Errors, Plaintiff does not challenge any specific mental or 

physical limitation included by the ALJ in the determination of her RFC. Instead, she 

points to testimony by the vocational expert (“VE”) that an individual with the hypothetical 

limitations determined by the ALJ in this case would be precluded from all unskilled work 

if she were “off-task” more than 10% of the workday, and/or if she were absent from work 

more than 1 day per month. (Tr. 73). On the record presented, however, no such

limitations were included in Plaintiff’s RFC. Plaintiff broadly argues that the ALJ 

committed reversible error by finding that she can engage in any full-time work for 8 hours 
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a day, or for 5 days every week, on a sustained, or “regular and continuing” basis. 

Plaintiff’s argument strongly implies that the ALJ should have included work-preclusive 

limitations concerning absenteeism and/or Plaintiff’s inability to engage in work for a full 

8 hours per day on a consistent basis. Plaintiff asserts that the ALJ “ignored significant 

evidence” that supports her claim that she cannot sustain fulltime work. 

In support of her claim, Plaintiff relies heavily on her own testimony along with 

select medical records. Prior to turning to the evidence on which Plaintiff relies, the 

undersigned first reviews the evidence relied upon by the ALJ in formulating the RFC. 

Notably, no treating or examining physicians or psychologists offered any medical 

opinions suggesting that Plaintiff was disabled from all work, or for that matter, that she 

had any specific functional limitations at all. In the absence of other medical opinion 

evidence, the ALJ based her RFC determination in large part upon the opinions of two 

state agency reviewing physicians, Drs. Gedmark and Reed, giving their opinions “great 

weight.” (Tr. 21). The ALJ also gave “great weight” to the opinions of the consulting 

psychologists, Drs. Gonzalez and Cutler. (Tr. 19). The ALJ’s reliance on these medical 

opinions to help formulate Plaintiff’s RFC reflects no error. Because the evaluations are 

the only medical opinions of record, they serve as the best evidence of Plaintiff’s workrelated abilities and limitations. Accord Watts v. Com’r of Soc. Sec., 179 Fed. Appx. 290, 

294 (6th Cir. 2006).

None of the four agency consultants opined that Plaintiff would be excessively 

absent, that she would be off-task for greater than 10% of the workday, or that she could 

not engage in work on a regular and continuing basis. To the contrary, both Drs. Gedmark 

and Reed opined that Plaintiff could engage in medium work with postural limitations and 

other non-exertional limitations. The ALJ accepted their limitations as adequately 
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encompassing the Plaintiff’s chronic physical pain complaints, including some tenderness 

to palpitation of her back, “at times a muscle spasm in lumbar region, and some reduced 

range of motion of her lumbar spine from her degenerative disc disease and fibromyalgia.” 

(Tr. 19, 20). The ALJ also took Plaintiff’s obesity into account in formulating the RFC,2

noting that she should not be exposed to hazards due to her obesity and “because she 

would unable to protect herself adequately due to her pain.” (Tr. 20). The ALJ declined 

to further limit Plaintiff because “her allegations of impairments of a disabling severity are 

not consistent with the record, including the aforementioned normal findings such as a 

generally normal gait, strength, [and] coordination.” (Id.) The ALJ emphasized that “the 

record reflects limited treatment for the allegedly constant and disabling pain and 

otherwise normal clinical findings.” (Tr. 19).

The agency psychologists also opined that Plaintiff was able to engage in 

sustained work activity. (Tr. 124-125, indicating that Plaintiff is “not significantly limited” 

in her “ability to perform activities within a schedule, maintain regular attendance, and be 

punctual within customary tolerances”). In accepting most of their opinions and rejecting 

the work-preclusive limitations to which Plaintiff testified,

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the ALJ relied on mental health 

records that included frequent reports of “a euthymic mood and activities of daily 

living...such as driving, performing household chores and personal care, and international 

travel.” (Tr. 19, 85-91, 119-126). The ALJ noted that Plaintiff exhibits only mild 

restrictions in her activities of daily living, and reported that upon waking, she eats 

breakfast, checks emails, writes letters to pen pals, performs household chores, and 

 

2

In September 2015, Plaintiff had reported that she had lost 17 pounds after attending a weight loss clinic 

for two months.

3Although the agency consultants found that Plaintiff had only “mild” difficulties in maintaining social 

functioning, the ALJ found “moderate” difficulties in that area of the Paragraph B criteria. 
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prepares lunch and dinner. (Tr. 17). She does not need reminders for personal care. (Id.) 

Elsewhere in her opinion, the ALJ noted that Plaintiff spends time with others at family 

dinners, with friends, and uses social media, goes grocery shopping, uses the library and 

enjoys reading, and is fairly involved in her church community. (Tr. 57-58). For example, 

she took a two-week volunteer work trip to India with her church, during which she enjoyed 

an underground railroad tour, and she took another trip to New Orleans. (Tr. 17 citing Tr. 

661 and 889; see also Tr. 20, 63). She also reported tutoring at church. (Tr. 20). 

In finding Plaintiff capable of sustaining full-time work, the ALJ unequivocally 

rejected much of Plaintiff’s testimony that pain from multiple impairments precludes 

sustained work activity. Plaintiff testified at the hearing that she does not “have the 

stamina” to work for eight hours based on the combination of her migraines, fibromyalgia, 

arthritis, depression, and “all the different things.” (Tr. 49). She testified that her chronic 

pain from neck and back issues, migraines, and IBS would cause her to be frequently 

absent from work. (Tr. 49-50, 52). She testified that she cannot sit “for extended periods 

because of the arthritis and the cervical stenosis, the degenerative disc disease,” and that 

she has a lot of back and neck pain, as well as difficulty with her “hips and my knees.”4 

(Tr. 50). In addition, she testified that fibromyalgia causes her pain throughout her body. 

(Id.) 

Because no medical opinions support her testimony, Plaintiff relies on discrete 

medical records, which she admits reflect “scattered medical treatment,” to argue that her 

impairments resulted in a disabling level of pain and would have caused excessive 

 

4Plaintiff testified that she has bursitis in both hips and arthritis. (Tr. 58). The ALJ found degenerative disc 

disease to be a severe impairment but did not specifically discuss bursitis or arthritis. Plaintiff does not 

refer to hip or knee pain, or assert any error relating to bursitis or arthritis in this appeal.
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absenteeism. (Doc. 9 at 12). There are two problems with Plaintiff’s argument. First, the 

fact that substantial evidence may be found to support a different determination is not 

cause for reversal of a non-disability determination, so long as substantial evidence also 

supports the ALJ’s decision. Second, none of the evidence relied upon by Plaintiff is 

sufficient to undermine the substantial evidence that supports the ALJ’s determination in 

this case. 

In addition to determining that Plaintiff’s migraines, macular degeneration, and IBS 

could not be considered to be “severe” impairments, the ALJ made an adverse credibility 

determination regarding Plaintiff’s overall complaints of disabling pain. (Tr. 19). The ALJ 

contrasted Plaintiff’s subjective complaints with multiple records that reflected “normal 

findings.” (Id.) Defendant asserts that Plaintiff has waived any challenge to the adverse 

credibility finding by failing to specifically challenge that finding. See generally, Swain v. 

Com’r of Soc. Sec., 379 Fed. Appx. 512, 517-518 (6th Cir. 2010) (a failure to raise a claim 

on the merits constitutes waiver). Considering Plaintiff’s focus on select medical records 

and failure to include the word “credibility” anywhere in her argument, (see Doc. 9 at 10-

12), Defendant’s argument has some appeal. 

In her reply memorandum, however, Plaintiff maintains that no waiver applies. She 

contends that her broader argument that the ALJ “ignored” certain evidence in favor of 

her claim encompasses a more specific challenge to the ALJ’s adverse credibility 

determination. In her Statement of Errors, she cites both to her own testimony that she 

cannot sustain full-time work, and to work history and medical records that she believes 

support that testimony.

An issue cannot be presented for the first time in a reply memorandum. Plaintiff’s 

attempt to reframe her initial claim in her reply memorandum as encompassing a 
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challenge to the adverse credibility determination is not particularly persuasive. However, 

giving Plaintiff the benefit of the doubt on this issue, I find no reversible error.

It is the province of the ALJ, and not the reviewing court, to evaluate 

the credibility of witnesses, including that of the claimant. Rogers v. Comm'r of Social 

Sec., 486 F.3d 234, 247 (6th Cir.2007) (citations omitted). In light of the Commissioner's 

opportunity to observe the individual's demeanor, the Commissioner's credibility finding 

is entitled to deference and should not be discarded lightly. Buxton v. Halter, 246 F.3d 

762, 773 (6th Cir.2001). 

It is true that subjective complaints of pain may support a claim for 

disability. See Duncan v. Sec'y of HHS, 801 F.2d 847, 852 (6th Cir. 1986). However, in 

cases in which complaints of disabling pain are not well-supported by medical evidence, 

the credibility of the claimant is often critical. See Tyra v. Sec'y of HHS, 896 F.2d 1024, 

1030 (6th Cir. 1990) (Though claimant's physicians consistently reported Tyra's 

subjective complaints of pain, he had no underlying neurological abnormalities, atrophy 

or proportionate loss of sensory and reflex reactions.”); Daniels v. Com'r of Soc. 

Sec., 2011 WL 2110145 at *4 (S.D. Ohio May 25, 2011) (normal neurological findings or 

other results of objective testing may be considered in determining credibility of subjective 

complaints, citing Cross v. Com'r of Soc. Sec., 373 F.Supp.2d 724, 732 (N.D. Ohio 

2005)). As other courts have noted, many people experience chronic pain that is less 

than disabling. See Blacha v. Secretary of Health and Human Services, 927 F.2d 228, 

230–231 (6th Cir. 1990) (affirming ALJ's determination that back pain from nerve root 

compression and herniated disc, coupled with degenerative changes, was not disabling). 

Here, the ALJ discussed Plaintiff’s allegations that she could not work due to her 

physical pain and lack of stamina, her allegations of contact pain, and that her conditions 
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caused difficulty in sitting for extended periods and lifting restrictions to 10 pounds or less. 

(Tr. 18). The ALJ also expressly considered Plaintiff’s testimony that her mental 

impairments are disabling because her depression causes her to stay in bed for most of 

the day and she requires two naps for 2 hours at a time each day. (Id.) Although the 

records reflect that most of Plaintiff’s conditions existed prior to her alleged onset of 

disability when she was still working full-time, the ALJ also considered Plaintiff’s testimony 

that the “progression” of those conditions caused her to be disabled after her car accident. 

(See generally Tr. 64-65, Plaintiff’s testimony concerning her degenerative joint disease,

bone spurring in her neck and spine and arthritis).

In this judicial appeal, Plaintiff protests that in assessing her claim, the ALJ overrelied upon her ability to perform daily activities, which is not equivalent to the ability to 

sustain full-time work. See Rogers v. Com’r of Soc. Sec., 486 F.3d 234, 248 (6th Cir. 

2007). However, “if disabling severity cannot be shown by objective medical evidence 

alone, the Commissioner will also consider other factors, such as daily activities and the 

type and dosage of medication taken.” Id. (citing 20 C.F.R. § 404.1529(c)(3)).  Here, the 

ALJ did not simply point to a few daily activities to discount Plaintiff’s credibility but relied 

on numerous inconsistencies, including between the record and Plaintiff’s testimony that 

her migraines, IBS, macular degeneration and a partial tear of her rotator cuff all 

contributed significantly to disability. (Tr. 15). 

Despite failing to assert error in the ALJ’s Step 2 determination that her migraines 

were not a severe impairment, Plaintiff relies on treatment notes from her treating 

neurologist, Dr. John Kelly, to argue that the “non-severe” migraines still contribute to her 

inability to sustain fulltime work. Dr. Kelly’s records reflect that Plaintiff reported that her 

migraines began more than 20 years ago. Many of the notes on which Plaintiff relies 
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predate her disability onset date and do not appear to support the level of absenteeism 

that Plaintiff alleges.5 The number of days that Plaintiff experiences headache is not 

necessarily equivalent to the number of days she would be absent from work, even if the 

reported number of headaches were to be credited. For example, at her January 2011 

initial consultation with Dr. Kelly, prior to any treatment, Plaintiff reported that she misses 

some work “at least one or two times per month.” (Tr. 428; see also Tr. 441 “she is 

sometimes incapacitated [and] she sometimes misses work”; Tr. 443, reporting more than 

15 migraines per month in March 2012 but without any notation of increase in missed 

work). In July 2011, Dr. Kelly ordered an MRI of the brain that showed “some very minimal 

white matter changes, commonly associated with migraine though...also seen in the 

normal population” (Tr. 431). 

On May 4, 2012, Dr. Kelly prescribed Botox injections, which Plaintiff reported were

effective for a period of about ten weeks until July 18. (Tr. 447, 451). On August 23, 

2012, she was administered another Botox injection and was advised to return in 10 

weeks for a follow-up injection. (Tr. 454). Consistent with 2011 records, the August 2012 

record reiterated that before treatment, Plaintiff’s frequent (15 days per month) 

headaches caused her to miss work “at least one or two times per month.” (Tr. 451).6 A 

follow-up October 2012 MRI study brain showed no changes from the 2011 study, 

including no enhancing brain lesions or new areas of abnormal brain signals attributed to 

migraines or anything else. (Tr. 19, 407, 463). Dr. Kelly’s records reflect continued 

 

5Plaintiff relies most heavily on her own testimony to support her claim of excessive absenteeism, but the 

ALJ was permitted to review that testimony through the lens of her adverse credibility finding. (See Tr. 44, 

61-62, 287).

6The reference in the records appears to have been carried over from the initial consultation record in which 

Plaintiff reported her medical history. Dr. Kelly provided no opinions concerning any functional limitations 

allegedly caused by the migraines, including but not limited to absenteeism.
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medication therapy and Botox injections at ten-week intervals, which was deemed to 

provide significant improvement in 2013. (See e.g., Tr. 477, 481, noting headaches 

“significantly improved”). At the hearing, Plaintiff testified that she continues to 

experience at least 10 migraines a month, but that her prescription medication, Maxalt, is 

helpful and can stop the migraines from occurring or shorten them. (Tr. 51). 

Based on the record as a whole, the ALJ reasonably determined that “the claimant 

had medication treatment, including Imitrex, for her migraines without further 

intervention.” (Tr. 15). In addition to treatment records and imaging studies, the ALJ 

based her “non-severe” finding at Step 2 on the fact that in many medical records, Plaintiff 

expressly denied suffering from headaches. (Id.) 

In addition to discrepancies between the medical records and Plaintiff’s testimony 

about her migraines, the ALJ found further discrepancies between Plaintiff’s testimony 

about her IBS and macular degeneration and the record of treatment, again finding at 

Step 2 that neither condition could be considered to be severe. 

As for her irritable bowel syndrome, the record reflects only routine and 

conservative treatment, including omeprazole... In addition, her physical 

examinations generally showed normal bowel sounds with no tenderness 

or distension of her abdomen.... Therefore, the claimant’s irritable bowel 

syndrome is not a severe impairment. As for her macular degeneration, the 

claimant’s visual acuity was 20/20 in both eyes with correction.... She had 

no treatment for this condition beyond glasses.... In addition, at her most 

recent ophthalmology appointment, the claimant reported that her vision 

was good with correction.

(Tr. 15, internal citations omitted). Consistent with the ALJ’s analysis, at the hearing, 

Plaintiff testified that she visits her eye doctor only annually and testified that problems 

with her vision cause her difficulty only with driving at night. (Tr. 54, 63). 

Additionally, the ALJ found that her status post non-union of the distal segment of 

her sacrum and her right shoulder partial rotator cuff tear could not be considered to be 
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severe impairments. Imaging studies immediately after her car accident were negative 

but months later, a provider discovered a bone fragment from her sacrum. (Tr. 489). A

month after the May 6, 2013 surgery to remove the bone fragment, Plaintiff reported doing 

well and not having any more pain, and the record reflected no further treatment. (Tr. 15; 

Tr. 490; see also Tr. 493). Although in July 2013 she reported some continued pain with 

prolonged sitting, (Tr. 596), that isolated report does not undermine the substantial 

evidence that supports the ALJ’s analysis of her limitations from this impairment. As for 

her shoulder, an x-ray showed no joint or soft tissue abnormality. (Id). Although further 

follow-up with an orthopedist was recommended, the record showed no further treatment 

for her shoulder. (Tr. 15). Plaintiff treats her shoulder pain only with an over-the-counter 

anti-inflammatory. (Tr. 67). 

Finally, Plaintiff has had only conservative treatment for back and neck pain. In 

contrast to Plaintiff’s testimony about disabling pain from arthritis and degenerative disc 

disease, imaging studies showed “nothing terribly impressive” and only minimal 

discogenic changes, with no nerve compression, lumbar canal stenosis or disc herniation 

in her lumbar spine, and only minimal degenerative changes in her cervical spine. (Tr. 

459; Tr. 19; see also Tr. 401). In June 2013, Plaintiff underwent a bone densitometry of 

her lumbar spine, which also was normal. (Tr. 19, 622). She had no muscle spasms or 

tenderness to palpitation of her back or otherwise. (Tr. 19, 457-470, 489, 761, 946). Her 

muscle and motor strength were mostly normal. (Tr. 19, 453-480, 489, 577, 602, 680, 

906, 922, 966). Her sensation and reflexes were also usually normal. (Tr. 19, 453-480, 

489, 599, 922, 966). A September 2014 imaging study of her cervical spine showed some 

progression, but still characterized degenerative changes as “mild” (Tr. 544).
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At the hearing Plaintiff testified that she once tried going to a chiropractor who 

recommended a TENs unit for her back and neck pain, but that she did not purchase a 

unit because her insurance would not cover the cost. She testified that she generally 

takes only over the counter medication for her back and neck pain. (Tr. 52-53). She used 

to take prescription pain medication but her doctors no longer prescribe that. (Tr. 53). In 

response to her representative’s query, she also testified that other than OTC medication, 

she has not had anything done for her neck or back pain for “a couple years.” (Tr. 67-

68). In view of the record as a whole including Plaintiff’s conservative treatment, the ALJ’s 

decision to discount Plaintiff’s complaints of disabling pain is substantially supported.

Accord Kincaid v. Com’r of Soc. Sec., 2017 WL 4334194 (S.D. Ohio Sept. 30, 2017) 

(holding that the ALJ’s discounting of subjective pain complaints based upon her relatively 

conservative treatment and daily activities was supported by substantial evidence).

On appeal, Plaintiff points to records dated in August and October 2012, in which 

she reported increased diarrhea and back pain after her car accident. (Tr. 455, 459). 

Plaintiff also cites to a November 2014 MRI of her cervical spine that, despite some 

normal and mild findings, also showed at C5-C6 “broad-based diffuse disc bulge with 

associated spur present. Moderate left and right foraminal narrowing for the existing C5 

nerve roots present.” (Tr. 545; see also Tr. 553, reporting neck pain). In her reply 

memorandum, Plaintiff cites additional records in support of her contention that 

“significant evidence” proves consistent efforts to obtain treatment and relief from chronic 

pain. (See Doc. 14 at 2, collecting records). The undersigned has carefully reviewed all 

cited records but concludes that none support functional limitations at a disabling level.7 

 

7The undersigned was unable to locate the record cited as Tr. 993; the last page of the administrative record 

filed in this Court is Tr. 983.
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Moreover, none undermine the substantial evidence that supports the ALJ’s credibility 

determination.

In one final attempt to refute the ALJ’s RFC determination and adverse credibility 

determination concerning the extent of her physical limitations, Plaintiff points to treatment 

records from 2013, when she alleges her fibromyalgia symptoms “began to significantly 

impact her daily life.” (Doc. 9 at 11-12). As with her other impairments, however, 

Plaintiff’s reliance on the selected records does not require reversal. 

The consulting physicians on whom the ALJ relied considered Plaintiff’s 

fibromyalgia records, as did the ALJ herself. This is not a case in which any treating 

physician has opined that Plaintiff’s fibromyalgia is so severe that it causes disabling 

limitations. Contrast Swaim v. Com'r of Soc. Sec., 297 F.Supp.2d 986, 990-993 (N.D. 

Ohio 2003) and Rogers v. Com'r of Soc. Sec., 486 F.3d 234, 245 (6th Cir. 2007) (holding 

it was error for an ALJ to fail to give controlling weight to the opinion of a claimant's treating 

physician concerning pain limitations caused by fibromyalgia). In Swaim, the court 

emphasized that analysis of the severity of a fibromyalgia sufferer's pain can be “difficult,” 

and “places a premium...on the assessment of the claimant's credibility.” Id. at 990. 

Neither Swaim nor Rogers suggest that an ALJ should forego a credibility analysis and 

accept a plaintiff's allegations of a disabling level of pain without critical review. To the 

contrary, Swaim states that “[a]lthough the treating physician's assessment can provide 

substantial input into this credibility determination, ultimately, the ALJ must decide...if the 

claimant's pain is so severe as to impose limitations rendering [her] disabled.” Id. In fact, 

most people with fibromyalgia suffer less than disabling limitations. See Vance v. Com'r 

of Soc. Sec., 260 Fed. Appx. 801, 806 (6th Cir. 2008).
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In addition to the substantially supported analysis of Plaintiff’s physical limitations, 

the ALJ pointed out many inconsistencies between Plaintiff’s claim that her mental 

impairments were disabling and the record. At the hearing, Plaintiff testified that she has 

suffered from depression “for probably 25 years or more,” long before her alleged onset 

date. (Tr. 56). The ALJ highlighted the fact that although Plaintiff was engaged in therapy 

for her mental conditions prior to her alleged onset date at a time she was still working

full-time, she discontinued therapy shortly after her onset date, from August 2012 until 

July 2014. Discontinuing treatment undermined her claim that her depression and anxiety 

was disabling throughout that period. (Tr. 20, 222, 224, 632-635). 

To counter this evidence, Plaintiff argues that mental impairments are prone to 

periods of temporary remission, and that she continued taking medications for her mental 

impairments that had been prescribed by her primary care physician. However, a 

plaintiff’s contrary view of the evidence does not support reversal where the ALJ’s 

analysis is substantially supported. Plaintiff’s records consistently showed good eye 

contact, good judgment and insight, and a “good” memory. (Tr. 20). Summarizing, the 

ALJ concluded that despite symptoms that waxed and waned, over time Plaintiff’s 

symptoms “somewhat improved.” (Tr. 20, citing records). The ALJ did not ignore but 

specifically acknowledged that Plaintiff’s mental health records referenced blunted or 

anxious affect and a depressed mood on many occasions, which supported RFC

limitation to “performing simple and routine tasks” with only “routine workplace changes” 

and “occasional interaction with the public.” (Tr. 18). 

Plaintiff also cites to discrete mental health records, such as a March 2014 report 

of an increase in her depression and anxiety-related symptoms. (Tr. 508, 632). At the 

time, her Global Assessment of Functioning (“GAF”) score was 50. Her therapist noted 
18

she fluctuated between having insomnia and hypersomnia. (Tr. 643). However, the ALJ 

reasonably noted that GAF scores are not dispositive but reflect no more than a snapshot 

of Plaintiff’s functioning at that time, including consideration of housing difficulties not 

pertinent to the analysis of social security disability. (Tr. 21). Plaintiff’s GAF score of 50 

remained the same despite the fact that she was able to plan and go on her two-week 

international trip to India, while “increasing social contact with old and new friends.” (Tr. 

21). The undersigned finds no error in the ALJ’s decision to give Plaintiff’s GAF scores 

little weight on the record presented. See generally Lee v. Com’r of Soc. Sec., 529 Fed. 

Appx. 706, 716 (6th Cir. 2013). Likewise, the undersigned finds no error in the ALJ’s 

rejection of disabling mental limitations after determining that Plaintiff’s “allegations of a 

disabling severity are not consistent with the record, including the aforementioned normal 

findings such as a generally normal... mood, judgment, insight, and memory.” (Tr. 20). 

The ALJ fairly reasoned that the mental limitations as determined were sufficient to 

account for Plaintiff’s “pain, any leftover drowsiness from [pain medication] taken the night 

before, and her depressed moods, which would decrease her concentration and ability to 

adapt.” (Id.) 

Plaintiff briefly argues that her strong work history until May 2012 favored the 

acceptance of her subjective complaints. Plaintiff testified that she continues to work parttime to provide care for her 25-year-old nephew, who has cerebral palsy and an 

intellectual disability. (Tr. 20, 38-39). Among the care she provides are shopping and 

helping him with letters and numbers. She works a flexible schedule, typically only 4-6 

hours per week, and rarely up to 15 hours. (Tr. 39-40). She testified that the only reason 

she can work at all is because the job is for a relative and is flexible, and that there are 

some weeks where she is unable to work at all. (Tr. 39-40, 42). While it is true that a 
19

strong work history is one factor that can support a favorable credibility determination, 

Plaintiff’s work history did not require the ALJ to disregard the ample evidence in the 

record as a whole that supported the ALJ’s adverse determination.

III. Conclusion and Recommendation

In conclusion, I find no error in the ALJ’s assessment of Plaintiff’s credibility, or in 

her overall non-disability determination. “Discretion is vested in the ALJ to weigh all the 

evidence,” and the ALJ here did not abuse that discretion. Collins v. Com’r of Soc. Sec., 

347 Fed. Appx. 663, 668 (6th Cir. 2009) (internal quotation marks and citation omitted). 

Plaintiff’s argument that the ALJ erred in this case based upon what she alleges is 

substantial evidence to support a different conclusion does not support reversal, because 

there is a “‘zone of choice’ within which the Commissioner can act, without the fear of 

court interference.” Buxton v. Halter, 246 F.3d at 773. 

For the reasons explained herein, IT IS RECOMMENDED THAT Defendant’s 

decision be AFFIRMED as supported by substantial evidence, and that this case be 

CLOSED.

/s Stephanie K. Bowman 

Stephanie K. Bowman

United States Magistrate Judge
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UNTED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JAMIE MAULDIN, Case No. 1:17-cv-868

Plaintiff, Barrett, J.

Bowman, M.J.

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

NOTICE 

Pursuant to Fed. R. Civ. P 72(b), any party may serve and file specific, written 

objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS of 

the filing date of this R&R. That period may be extended further by the Court on timely 

motion by either side for an extension of time. All objections shall specify the portion(s) of 

the R&R objected to, and shall be accompanied by a memorandum of law in support of 

the objections. A party shall respond to an opponent’s objections within FOURTEEN (14) 

DAYS after being served with a copy of those objections. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 

140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).