IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Jeffery L. Shaffer,

Plaintiff,

v. Case No. 2:18-cv-185

Commissioner of

Social Security,

Defendant.

ORDER

Plaintiff Jeffery L. Shaffer brings this action under 42

U.S.C. §405(g) for review of a final decision of the Commissioner

of Social Security (“Commissioner”) denying his application for a

period of disability and disability insurance benefits. The

administrative law judge (“ALJ”) reviewed the evidence in the

record and held a hearing. In a decision dated May 3, 2017, the

ALJ found that plaintiff had severe impairments consisting of

degenerative disk disease of the lumbar spine and chronic

obstructive pulmonary disease. PAGEID 48. After considering the

entire record, the ALJ found that plaintiff has the residual

functional capacity (“RFC”) to perform light work. PAGEID 51. 

Citing the testimony of the vocational expert, the ALJ concluded

that there were jobs in the economy which plaintiff could perform,

and that he was not disabled. PAGEID 56-57.

This matter is before the court for consideration of

plaintiff’s November 9, 2018, objections in response to the October

26, 2018, report and recommendation of the magistrate judge,

recommending that the decision of the Commissioner be affirmed. 

Plaintiff’s objections concern the ALJ’s consideration of evidence

relevant to his mental disabilities, which the ALJ determined were
not disabling.

I. Standard of Review

If a party objects within the allotted time to a report and

recommendation, the court “shall make a de novo determination of

those portions of the report or specified proposed findings or

recommendations to which objection is made.” 28 U.S.C.

§ 636(b)(1); see also Fed. R. Civ. P. 72(b). Upon review, the

court “may accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge.” 28

U.S.C. § 636(b)(1).

The court’s review “is limited to determining whether the

Commissioner’s decision ‘is supported by substantial evidence and

was made pursuant to proper legal standards.’” Ealy v. Comm’r of

Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v.

Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also,

42 U.S.C. § 405(g) (“The findings of the Commissioner of Social

Security as to any fact, if supported by substantial evidence,

shall be conclusive.”). Even if supported by substantial evidence,

however, “‘a decision of the Commissioner will not be upheld where

the [Commissioner] fails to follow its own regulations and where

that error prejudices a claimant on the merits or deprives the

claimant of a substantial right.’” Rabbers v. Comm’r of Soc. Sec.,

582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of Soc.

Sec., 478 F.3d 742, 746 (6th Cir. 2007)).

II. Objections

The record includes treatment notes documenting plaintiff’s

reports of anxiety, mood swings, and panic attacks featuring

shortness of breath. In his statement of errors, plaintiff argued

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that the ALJ erred in determining at step two of the five-step

analysis set forth in 20 C.F.R. §404.1520(a)(4) that plaintiff’s

mental impairments were not severe, and in assigning only little

weight to the opinion of Nurse Practitioner Mick. Upon review of

the record, the magistrate judge concluded that no error had been

shown and that the ALJ’s findings were supported by substantial

evidence. The court agrees with the conclusions of the magistrate

judge. 

Plaintiff makes no specific reference to the ALJ’s step two

determination in his objections. To the extent that his objections

can be construed as incorporating his prior arguments, the court

agrees with the conclusion of the magistrate judge that the ALJ

committed no error in his step two determination. A severe

impairment is “any impairment or combination of impairments which

significantly limits your physical or mental ability to do basic

work activities,” 20 C.F.R. §§404.1520(c), 416.920(c)[.]” 42

U.S.C. §423(d)(1)(A). If the degree of limitation due to a mental

impairment is rated as “mild,” the impairment is generally deemed

to be not severe, unless the evidence otherwise indicates that

there is more than a minimal limitation in the claimant’s ability

to do basic work activities. 20 C.F.R. §404.1520a(d)(1). A severe

impairment is established by medical evidence consisting of signs,

symptoms, and laboratory findings, not just by a claimant’s

statement of symptoms. Griffith v. Comm’r, 582 F. App’x 555, 559

(6th Cir. 2014)(citing 20 C.F.R. §416.908). The opinion of a

health care professional who is not an acceptable medical source

cannot establish the existence of a medically determinable

impairment. SSR 06-3p, 2006 WL 2329939 at *2 (S.S.A. Aug. 9,

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2006).1 The failure to categorize an impairment as severe at step

two is not prejudicial error if the ALJ found other severe

impairments at step two and considered all of the claimant’s

impairments, including the nonsevere impairments, in the remaining

steps of the disability determination. See Nejat v. Comm’r of Soc.

Sec., 359 F. App’x 574, 577 (6th Cir. 2009). 

Plaintiff relies on the treatment notes and evaluation of

Nurse Practitioner Mick to establish that his mental impairments

are severe. However, as the ALJ noted, Nurse Practitioner Mick is

not an acceptable medical source and cannot be relied on to

establish a diagnosis of a medically determinable impairment. 

PAGEID 49. See SSR 06-3p, 2006 WL 2329939 at *2. The ALJ noted

that it was unclear from the record whether an acceptable medical

source had actually diagnosed a medically determinable mental

impairment, nor was there any documentation of treatment from

professional mental health source. PAGEID 49.

At step two, the ALJ found that, regardless of whether a

medically determinable mental impairment had been shown, there was

no evidence in the record of any mental condition that causes more

than a mild or minimal limitation in plaintiff’s ability to perform

basic mental work activities. PAGEID 49-50. Specifically, the ALJ

noted that although plaintiff complained of mental symptoms, his

mental status functioning was routinely reported to be normal and

did not appear to impede his activities of living, which included

driving, doing some household chores such as laundry, grocery

1

This regulation has been rescinded, but it still applies to

claims such as this one which were filed before March 27, 2017. 

20 C.F.R. §404.1527.

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shopping, walking with his granddaughter, and reading magazines. 

PAGEID 49. The ALJ referred to treatment notes in the record which

routinely documented that plaintiff was alert and oriented with no

memory deficits and had a good mood, and which noted no

difficulties concerning his interactions with treatment sources

despite his numerous appointments. The ALJ further observed that

Ohio Department of Disability Determination reviewing psychologist

Juliette Savitscus, Ph.D., found on January 30, 2015, that

insufficient evidence had been presented to evaluate plaintiff’s

claim of mental disability, and that on March 2, 2015, reviewing

psychologist Judith Schwartzman, Psy.D., agreed with that

assessment of plaintiff’s claim.

At step five of the analysis, the ALJ discussed plaintiff’s

treatment records at length, including notes reflecting his mental

status and his reports of mental symptoms, and considered that

evidence along with the records concerning his physical limitations

in making his RFC determination. PAGEID 49-54. No error has been

shown by the ALJ’s failure to classify plaintiff’s mental

impairments as severe at step two.

Plaintiff also argues that the ALJ erred in assigning little

weight to the June 5, 2016, opinion of Nurse Practitioner Mick that

plaintiff had several moderate and marked mental work-related

limitations due to a mood disorder. This opinion consists of a

social security medical source statement form on which Nurse

Practitioner Mick stated that plaintiff was moderately to markedly

limited in social interaction; mildly to moderately limited in

sustained concentration and persistence; markedly limited in his

ability to perform at production levels expected by most employees;

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and moderately limited in some areas of adaptation. PAGEID 386-88. 

Nurse Practitioner Mick also opined that plaintiff was likely to be

absent from work at least five days per month, and that plaintiff’s

mood disorder prevented him from tolerating ongoing stress. PAGEID

388.

Opinions from “other sources” are evaluated using the same

factors applicable to medical opinions. These factors include: how

long and how frequently has the source seen the claimant; how

consistent is the source’s opinion with other evidence; the degree

to which the source presents relevant evidence to support the

opinion; how well the source explains the opinion; and whether the

source has any specialty or area of expertise related to the

claimant’s impairments. See SSR 06-3p, 2006 WL 2329939 at *4. 

However, a formulaic recitation of the factors for weighing a nurse

practitioner’s opinion is not required. See Francis v. Comm’r of

Soc. Sec., 414 F. App’x 802, 804 (6th Cir. 2011)(an exhaustive

factor-by-factor analysis is not required); Starr v. Comm’r of Soc.

Sec., NO. 2:12-cv-290, 2013 WL 653280 at *6 (S.D.Ohio Feb. 21,

2013)(same).

In giving the opinion of Nurse Practitioner Mick little

weight, the ALJ noted that because he was not an acceptable medical

source, his opinion did not have the same probative force as one

offered by an acceptable medical source, such as a physician. 

PAGEID 55. This was not error. See Noto v. Comm’r of Soc. Sec.,

632 F. App’x 243, 248 (6th Cir. 2015)(opinion of non-medical source

not entitled to any particular weight or deference); Hill v. Comm’r

of Soc. Sec., 560 F. App’x 547, 550 (6th Cir. 2014)(other-source

opinions are not entitled to any special deference). The ALJ also

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correctly observed that there was no indication in the record that

Nurse Practitioner Mick had any particular expertise in the field

of mental health diagnosis and evaluation. The ALJ specifically

noted an August 15, 2016, letter to plaintiff’s counsel in which

Nurse Practitioner Mick offered the unclear statement that

plaintiff’s mood disorder “[m]ay result from excessive alcohol

intake” but that “it may also be present prior to and result in

excessive alcohol use.” PAGEID 393. The ALJ further concluded

that Nurse Practitioner Mick’s opinion was inconsistent with his

own treatment notes, which routinely documented that plaintiff was

in no acute distress, had a good mood, and exhibited no difficulty

interacting with medical personnel. PAGEID 55. Elsewhere in his

opinion, the ALJ thoroughly discussed plaintiff’s treatment records

and noted that many records reported that plaintiff had a good

mood, was alert and oriented, and had a normal affect, thought

content and perception, with no impairment of recent or remote

memory. PAGEID 52-54.

Plaintiff argues that the ALJ should have referred

specifically to the fact that Nurse Practitioner Mick had a lengthy

treating relationship with plaintiff, and that this relationship

warranted assigning more weight to his opinion. Exactly when this

treating relationship began is not clear from the record. In the

letter to plaintiff’s counsel, Nurse Practitioner Mick indicated

that plaintiff had been a patient at Greenfield Medical Services

“since he established with my partner in 2011.” PAGEID 393. 

However, the first record bearing Nurse Practitioner Mick’s

signature is dated April 8, 2014, with later records going through

2016. PAGEID 245 and Exhibits 1F, 7F.

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Because Nurse Practitioner Mick was not a “treating source”

physician, the ALJ was not required to provide good reasons for the

weight given to his opinion. Mulkey v. Comm’r of Soc. Sec., No.

1:10-cv-466, 2011 WL 4528485 at *6 (W.D.Mich. June 14, 2011),

adopted 2011 WL 4528479 (W.D.Mich. Sept. 29, 2011). Rather, the

ALJ “generally should explain the weight given to opinions from

these ‘other sources,’ or otherwise ensure that the discussion of

the evidence in the determination or decision allows a claimant or

subsequent reviewer to follow the adjudicator’s reasoning.” SSR

06-3p, 2006 WL 2329939 at *6. The ALJ included a detailed

discussion of the treatment records in his opinion. The ALJ was

obviously aware of the length and nature of plaintiff’s treating

relationship with Nurse Practitioner Mick. An ALJ’s failure to

cite specific evidence does not indicate that it was not

considered, see Simons v. Barnhart, 114 F.App’x 727, 733 (6th Cir.

2004), and a specific discussion of this factor was not required. 

Starr, 2013 WL 653280 at *6.

The length of the treating relationship did not require

assigning greater weight to this opinion. Many of the treatment

notes indicate that the reason for the office visit was an illness

or physical problem. There was no treatment record of any in depth

mental evaluation. In light of the other reasons given by the ALJ

for giving the opinion of Nurse Practitioner Mick little weight,

the length of the treatment relationship and the ALJ’s failure to

specifically refer to this factor does not render that decision

unreasonable.

Plaintiff also argues that because the opinion of Nurse

Practitioner Mick was the only opinion concerning plaintiff’s

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mental limitations, it should have been accorded greater weight,

mandating a finding of disability. Plaintiff has cited no

authority for this proposition. The fact that an opinion is the

only opinion on a subject is not listed as a factor to be

considered in SSR 06-3p or any other regulation. The ALJ did not

err in not giving greater weight to the opinion of Nurse

Practitioner Mick merely because it was the only opinion in the

record on the topic of plaintiff’s mental impairments. 

III. Conclusion

Having reviewed the record de novo, the court determines that

there is substantial evidence to support the decision of the ALJ to

give the opinion of Nurse Practitioner Mick little weight, and that

no error occurred in his consideration of that opinion. The record

supports the ALJ’s determination that plaintiff is not disabled, as

defined in the Social Security Act. The court hereby adopts and

affirms the magistrate judge’s report and recommendation (Doc. 14). 

Plaintiff’s objections (Doc. 15) are denied. The Commissioner’s

decision is affirmed, and this action is dismissed. The clerk

shall enter final judgment.

Date: January 31, 2019 s/James L. Graham 

 James L. Graham

 United States District Judge 

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