Donnellan v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

THOMAS DONNELLAN,

Plaintiff,

v. 2:22-cv-542-NPM

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

ORDER

Plaintiff Thomas Donnellan seeks judicial review of a denial of Social

Security disability benefits. The Commissioner of the Social Security

Administration filed the transcript of the proceedings (Doc. 12),1 Donnellan filed an

opening brief (Doc. 17), the Commissioner responded (Doc. 20), and Donnellan

replied (Doc. 23). As discussed in this opinion and order, the decision of the

Commissioner is affirmed.

I. Eligibility for Disability Benefits and the Administration’s Decision

A. Eligibility

The Social Security Act and related regulations define disability as the

inability to do any substantial gainful activity by reason of one or more medically

determinable physical or mental impairments that can be expected to result in death

1 Cited as “Tr.” followed by the appropriate page number.

or that have lasted or can be expected to last for a continuous period of not less than

twelve months.2 Depending on its nature and severity, an impairment limits

exertional abilities like walking or lifting, nonexertional abilities like seeing or

hearing, tolerances for workplace conditions like noise or fumes, or aptitudes

necessary to do most jobs such as using judgment or dealing with people.3 And when

functional limitations preclude both a return to past work and doing any other work

sufficiently available in the national economy (or an impairment meets or equals the

severity criteria for a disabling impairment as defined in the regulatory “Listing of

Impairments”), the person is disabled for purposes of the Act.4

B. Factual and procedural history

On August 11, 2020, Donnellan applied for disability insurance benefits and

supplemental security income. (Tr. 109-10, 305-16). He asserted an onset date of

June 3, 2020, alleging disability due to the following: attention deficit hyperactivity

disorder (“ADHD”); anxiety; panic attacks; post-traumatic stress disorder

(“PTSD”); breathing problems; multiple cracked ribs; and a fractured left wrist. (Tr.

2 See 42 U.S.C. §§ 416(i), 423(d), 1382c(a)(3); 20 C.F.R. §§ 404.1505, 416.905.

3 See 20 C.F.R. §§ 404.1513(a)(2)(i)-(iv) (discussing the various categories of work-related

abilities), 416.913(a)(2)(i)(A)-(D) (same), 404.1522(b) (providing examples of abilities and

aptitudes necessary to do most jobs), 416.922(b) (same), 404.1545(b)-(d) (discussing physical,

mental, and other abilities that may be affected by an impairment), 416.945(b)-(d) (same),

404.1594(b)(4) (defining functional capacity to do basic work activities).

4 See 20 C.F.R. §§ 404.1511, 416.911(a).

112, 332). As of the alleged onset date, Donnellan was 43 years old and had

completed one year of college. (Tr. 49-50, 111, 328, 333). Donnellan previously

worked as a chef, a food delivery driver, and a stocker at a department store. (Tr.

333).

On behalf of the administration, a state agency 5 reviewed and denied

Donnellan’s applications initially on October 28, 2020, and upon reconsideration on

March 18, 2021. (Tr. 83-108, 111-46, 153-72). At Donnellan’s request,

Administrative Law Judge (ALJ) Mario G. Silva held a hearing on August 19, 2021.

(Tr. 40-82). On November 24, 2021, the ALJ issued an unfavorable decision finding

Donnellan not disabled. (Tr. 19-39). Donnellan’s timely request for review by the

administration’s Appeals Council was denied. (Tr. 1-3). Donnellan then brought the

matter to this court, and the case is ripe for judicial review.

C. The ALJ’s decision

The ALJ must perform a five-step sequential evaluation to determine if a

claimant is disabled. 20 C.F.R. §§ 404.1520(a)(1), 416.920(a)(1). This five-step

process determines:

(1) whether the claimant is engaged in substantial gainful activity; (2) if not,

whether the claimant has a severe impairment or combination of

impairments; (3) if so, whether these impairments meet or equal an

impairment listed in the Listing of Impairments; (4) if not, whether the

claimant has the residual functional capacity (“RFC”) to perform his past

5 In Florida, a federally funded state agency develops evidence and makes the initial determination

whether a claimant is disabled. See 42 U.S.C. § 421(a); 20 C.F.R. §§ 404.1503(a), 416.903(a).

relevant work; and (5) if not, whether, in light of his age, education, and work

experience, the claimant can perform other work that exists in significant

numbers in the national economy.

Atha v. Comm’r, Soc. Sec. Admin., 616 F. App’x 931, 933 (11th Cir. 2015) (internal

quotation omitted); see also 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

The governing regulations provide that the Social Security Administration

conducts this “administrative review process in an informal, non-adversarial

manner.” 20 C.F.R. §§ 404.900(b), 416.1400(b). Unlike judicial proceedings, Social

Security Administration hearings “are inquisitorial rather than adversarial.”

Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1364 (11th Cir. 2018) (quoting

Sims v. Apfel, 530 U.S. 103, 111 (2000) (plurality opinion)). “Because Social

Security hearings basically are inquisitorial in nature, ‘[i]t is the ALJ’s duty to

investigate the facts and develop the arguments both for and against granting

benefits.’” Id. Indeed, “at the hearing stage, the commissioner does not have a

representative that appears ‘before the ALJ to oppose the claim for benefits.’” Id.

(quoting Crawford & Co. v. Apfel, 235 F.3d 1298, 1304 (11th Cir. 2000)). “Thus,

‘the ALJ has a basic duty to develop a full and fair record. This is an onerous task,

as the ALJ must scrupulously and conscientiously probe into, inquire of, and explore

for all relevant facts.’” Id. (quoting Henry v. Comm’r of Soc. Sec., 802 F.3d 1264,

1267 (11th Cir. 2015)).

Nonetheless, while the claimant is relieved of the burden of production during

step five as to whether there are enough jobs someone like the claimant can perform,

the claimant otherwise has the burdens of production and persuasion throughout the

process. See 20 C.F.R. §§ 404.1512, 416.912 (providing that the claimant must prove

disability); see also Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (noting

the regulations “place a very heavy burden on the claimant to demonstrate both a

qualifying disability and an inability to perform past relevant work”). In short, the

“overall burden of demonstrating the existence of a disability as defined by the

Social Security Act unquestionably rests with the claimant.” Washington, 906 F.3d

at 1359 (quoting Doughty v. Apfel, 245 F.3d 1274, 1280 (11th Cir. 2001)).

At step one of the evaluation, the ALJ found Donnellan had not engaged in

substantial gainful activity since June 3, 2020, the alleged onset date. (Tr. 21). At

step two, the ALJ characterized Donnellan’s severe impairments as: fractures in

cervical, thoracic, and lumbar spines; “left wrist fracture status-post ORIF”; rib

fractures; anxiety; and PTSD. (Tr. 21). At step three, the ALJ determined Donnellan

did not have an impairment or combination of impairments that met or medically

equaled the severity of an agency-listed impairment. (Tr. 22).

As a predicate to step four, the ALJ arrived at the following RFC:

[T]he claimant (right hand dominant) has the residual functional capacity to

perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except

lift up to 10 pounds with the left non-dominant extremity occasionally;

lift/carry up to 20 pounds occasionally and up to 10 pounds frequently with

the right upper extremity; stand or walk for about six hours; and sit up to six

hours for a combined total of an eight-hour workday with normal breaks. The

claimant should never climb ladders, ropes, or scaffolds; frequently climb

ramps and stairs; frequently balance; and occasionally stoop, kneel, crouch,

and crawling. The claimant can perform occasional overhead reaching with

bilateral upper extremities; no more than occasional handling with the left

non-dominant upper extremity; and frequent fingering with the left non-

dominant upper extremity. The claimant should never be exposed to

unprotected heights. The claimant is able to understand, remember, and carry

out simple instructions or tasks. The claimant is able to make judgments on

work related decisions with simple instructions or tasks in such work

environment. The individual is able to interact appropriately with others in

such work environment. The individual is able to respond and adapt to

routine work situations and to occasional changes in a work setting without

special supervision with simple instructions or tasks.

(Tr. 25). Consequently, the ALJ found Donnellan unable to perform any past

relevant work. (Tr. 31). At step five, the ALJ found Donnellan could perform other

work that exists in significant numbers in the national economy. (Tr. 31). In support,

a vocational expert testified that an individual of Donnellan’s age, education, work

experience, and RFC can perform the following representative occupations:

• Decorating Inspector, DOT #579.687-014), light; SVP 2, with 4,000 jobs

in the national economy;

• Usher, DOT #344.677-014, light; SVP 2, with 50,000 jobs in the national

economy; and

• Ticket Taker, DOT #344.667-010, light; SVP 2, with 40,000 jobs in the

national economy.

(Tr. 32).6 Thus, for purposes of the Act, the ALJ concluded Donnellan was not

6 The DOT numbers refer to the Dictionary of Occupational Titles and its detailed explanations

concerning each occupation’s requirements. These descriptions include exertion and skill levels.

Exertion refers to the work—in a purely physical sense—that the job requires, and it is divided

into five categories: sedentary, light, medium, heavy, and very heavy. Skill refers to how long it

takes to learn the job, and it is divided into three categories: unskilled, semiskilled, and skilled.

disabled from June 3, 2020, the alleged onset date, through November 24, 2021, the

date of the decision. (Tr. 33).

II. Analysis

Donnellan’s appeal presents three issues for review:

(1) whether the ALJ committed reversible error by arriving at an RFC that is

more restrictive than that which was suggested by the state-agency

consultants;

(2) whether the ALJ failed to ensure the record was fully developed; and

(3) whether the ALJ committed reversible error by omitting a discussion

about statements ascribed to a medical source in an application for a state-

issued, disabled-parking permit.

A. Standard of review

The court “may not decide the facts anew, make credibility determinations, or

reweigh the evidence.” Buckwalter v. Acting Comm’r of Soc. Sec., 997 F.3d 1127,

1132 (11th Cir. 2021). While the court must account for evidence both favorable and

unfavorable to a disability finding and view the evidence as a whole, Foote v. Chater,

67 F.3d 1553, 1560 (11th Cir. 1995), the court’s review of the administration’s

decision is limited to determining whether “it is supported by substantial evidence

and based on proper legal standards.” Crawford v. Comm’r of Soc. Sec., 363 F.3d

1155, 1158 (11th Cir. 2004). “Substantial evidence is more than a scintilla and is

The “SVP” (Specific Vocational Preparation) provides further subdivision of the three skill

categories into nine levels: SVP 1 and 2 are unskilled; SVP 3 and 4 are semiskilled; and SVP 5

through 9 are skilled.

such relevant evidence as a reasonable person would accept as adequate to support

a conclusion.” Goode v. Comm’r of Soc. Sec., 966 F.3d 1277, 1280 (11th Cir. 2020)

(quoting Crawford, 363 F.3d at 1158)).

“[T]he threshold for such evidentiary sufficiency is not high.” Biestek v.

Berryhill, 139 S. Ct. 1148, 1154 (2019). The inquiry is “case-by-case,” and “defers

to the presiding ALJ, who has seen the hearing up close.” Id. at 1157. In other words,

a “presumption of validity attaches” to the ALJ’s factual findings. Walker v. Bowen,

826 F.2d 996, 999 (11th Cir. 1987). And if supported by substantial evidence, the

ALJ’s findings of fact are conclusive. 42 U.S.C. § 405(g). This means the district

court will affirm, even if the court would have reached a contrary result as finder of

fact, and even if the court finds that the evidence “preponderates against” the

agency’s decision. Noble v. Comm’r of Soc. Sec., 963 F.3d 1317, 1323 (11th Cir.

2020) (quoting Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991)).

B. The ALJ properly assessed the RFC

It is axiomatic that the responsibility for making the residual functional

capacity determination rests with the ALJ. See 20 C.F.R. § 404.1546(c) (“If your

case is at the administrative law judge hearing level . . ., the administrative law judge

. . . is responsible for assessing your residual functional capacity.”). “An RFC

determination is an assessment, based on all relevant evidence, of a claimant’s

remaining ability to do work despite his impairments.”7 See Lewis v. Callahan, 125

F.3d 1436, 1440 (11th Cir. 1997) (citing 20 C.F.R. § 404.1545(a)).

In this case, the RFC provides that Donnellan could perform a range of light

work with additional manipulative, postural, environmental, and mental limitations.

(Tr. 25). In assessing the RFC, the ALJ considered objective medical records,

plaintiff’s reports of symptoms to medical providers, radiographic imaging, and

medical findings from state-agency-medical-consultants. (Tr. 25-31). But when

assessing the state-agency medical findings, the ALJ noted:

The undersigned has considered the disability determination explanations

from the State Agency medical consultants, wherein they opined the full

range of light exertion. The opinion is partially persuasive because it is

supported by the medical evidence of record with respect to the dominant

right upper extremity only. The medical evidence of record supports ongoing

residuals using the left non-dominant upper extremity as evidence by

imaging and findings on exams. Accordingly, limitations regarding the left

non-dominant upper extremity are warranted in terms of reduced lifting and

carrying, handling, and fingering. Additional non-exertional limitations are

also supported by the medical evidence of record with respect to postural

activities, reaching, and unprotected height. The State Agency psychological

consultants found no severe mental impairments and no more than mild

limitations. This finding is not persuasive, as they did not consider pain in

combination with mental symptoms, which supports a limitation of simple

instructions or tasks. (Ex. 1A, 2A, 5A, 6A).

(Doc. 30). While Donnellan agrees with the ALJ’s assessment of the state-agency-

7 See Davison v. Astrue, 370 F. App’x 995, 996 (11th Cir. Apr. 1, 2010) (per curiam) (“An ALJ

makes an RFC determination by considering the claimant’s ability to sit, stand, walk, lift, carry,

push, pull, stoop, crouch, and reach.”); see also 20 C.F.R. § 404.1545(a)(3) (in assessing RFC, the

Commissioner is required to consider “descriptions and observations of [the claimant’s] limitations

from [] impairments, including limitations that result from [] symptoms, such as pain, provided by

[the claimant] . . . .”).

medical-consultants, he argues that by assessing a more restrictive RFC than that

proffered by the consultants, the ALJ impermissibly “played doctor” because he

crafted an RFC determination from his own lay person interpretation of the raw

medical data, resulting in legal error. (Doc. 17 at 11-12). The court disagrees.

“The assessment of a claimant’s RFC is within the exclusive province of the

ALJ.” Wolff v. Comm’r of Soc. Sec., No. 2:22-cv-177-SPC-NPM, 2023 WL

1971935, *6 (M.D. Fla. Jan. 27, 2023), report and recommendation adopted, 2023

WL 1967586 (Feb. 13, 2023) (citing 20 C.F.R. §§ 404.1546(c), 416.946(c); accord

Beegle v. Soc. Sec. Admin., Comm’r, 482 F. App’x 483, 486 (11th Cir. 2012) (“A

claimant’s [RFC] is a matter reserved for the ALJ’s determination, and while a

physician’s opinion on the matter will be considered, it is not dispositive.”)); see

also Jones v. Comm’r of Soc. Sec., No. 6:15-cv-50-Orl-DAB, 2016 U.S. Dist. LEXIS

21802, *7 (M.D. Fla. Feb. 23, 2016) (rejecting the plaintiff’s contention that an RFC

assessment must be based on a medical opinion). Indeed, a requirement that an ALJ’s

RFC determination must be based on a physician’s opinion would “confer upon the

physician the authority to determine the RFC, which would abdicate the

Commissioner’s statutory responsibility to determine whether an individual is

disabled.” Driggers v. Astrue, No. 1:12-cv-00272-LSC, 2012 WL 4478963, *4 (N.D.

Ala. Sept. 20, 2012). So an ALJ does not impermissibly assume the role of a doctor

by viewing the record evidence as a whole and making an RFC determination. See

Castle v. Colvin, 557 F. App’x 849, 853 (11th Cir. 2014) (“[T]he ALJ did not ‘play

doctor’ in assessing Mr. Castle’s RFC, but instead properly carried out his regulatory

role as an adjudicator responsible for assessing Mr. Castle’s RFC.”); see also Kelsey

v. Saul, No. 1:20-cv-133-CAS, 2021 WL 602841, *9 (N.D. Fla. Feb. 16, 2021)

(rejecting plaintiff’s argument that the ALJ improperly “played doctor” by

formulating an RFC without any medical opinions).

Furthermore, substantial evidence supports the ALJ’s RFC determination. See

Ricks v. Astrue, 3:10-cv-975-TEM, 2012 WL 1020428, *9 (M.D. Fla. Mar. 27, 2012)

(citation omitted) (For the RFC assessment to be supported by substantial evidence,

it must only be shown that the ALJ has “provide[d] a sufficient rationale to link”

substantial record evidence “to the legal conclusions reached.”). With respect to the

physical limitations,8 the ALJ considered Donnellan’s testimony that in early June

2020, he fell off a ladder and fractured cervical, thoracic, and lumbar vertebrae, as

well as his left ribs and left wrist. (Tr. 26, 52-53, 123-40). Following surgical

intervention, Donnellan’s left wrist healed but he reported still having problems

using his hand for lifting and carrying items and used his right hand to assist. (Tr.

26, 53-54). Donnellan could open a door with his left hand but could not open jars.

8 In addition to Donnellan’s testimony, the ALJ considered medical records from June 4, 2020

through August 31, 2021, that included hospital, orthopedic, pain-management, and physical-

therapy records as well as MRI and x-ray reports. (Tr. 26-28). Some of these records post-date the

state agency’s review.

(Tr. 26, 56). He could pick up small items and light items with his left hand. (Tr. 26,

56-57). The fractures in Donnellan’s spine also healed, however, he reported

continuing pain that burns, aches, and is sharp.9 (Tr. 26).

The ALJ also considered state-agency-medical-consultant Dr. John Prairie’s

opinion that Donnellan was capable of: lifting and/or carrying twenty pounds on an

occasional basis and ten pounds on a frequent basis; sitting for approximately six

hours in an eight-hour day; and standing/walking for approximately six hours within

an eight-hour day. (Tr. 30, 105). Dr. Prairie opined that Donnellan had no postural,

manipulative, visual, communicative, or environmental limitations. (Tr. 106). On

March 16, 2021, Dr. Thomas Bixler affirmed Dr. Prairie’s initial assessment. (Tr

125). But as set forth above, the ALJ found their opinions only “partially

persuasive” with respect to the lack of limitations concerning the right upper

extremity. (Tr. 30).

Specific to Donnellan’s left wrist, the ALJ observed that he initially

9 After the ALJ considered all the evidence, he found that Donnellan’s medically determinable

impairments could reasonably be expected to cause his alleged symptoms, but Donnellan’s

statements concerning the intensity, persistence, and limiting effects of these symptoms were not

entirely consistent with the medical evidence or other evidence in the record. (Tr. 29). Overall, the

ALJ found that despite Donnellan’s inconsistent symptoms, the medical evidence showed ongoing

residuals of the neck and left wrist, but that any alleged disabling back pain, or limitations in

standing, walking, or sitting were not supported in light of normal imaging, normal gait/station,

intact motor strength in all four extremities, and no sensory or reflex deficits of the lower

extremities. (Tr. 29). Thus, the ALJ concluded that the light residual functional capacity with

additional limitations more than accounted for Donnellan’s complaints. (Tr. 29-30).

experienced stiffness, limited flexion, extension, supination, and pronation, and

continued pain upon movement. (Tr. 27, 458). However, Donnellan’s pain decreased

after ten physical therapy sessions, and he had full finger range of motion, no

paresthesia in the fingers, and Tinel’s was negative at the wrist. (Tr. 28, 1439). But

over time, the pain in Donnellan’s left wrist persisted despite normal imaging, which

caused him to modify certain movements. (Tr. 26-27, 1327, 1424). And the last x-

ray of Donnellan’s left wrist showed a questionable screw penetration along the

dorsal aspect of the radiocarpal joint compared to initial x-rays. (Tr. 28, 1439).

In regard to Donnellan’s spine, the record shows he consistently reported pain

in his neck and back, despite all of his fractures being healed. (Tr. 26-27, 442-43,

510, 513-14, 1379-81). Donnellan also underwent physical therapy and spinal

injections, including cervical-medial-branch-nerve-block injections, but they

provided only temporary relief and he continued to complain of neck pain with

intermittent radiation to the left upper extremity and scapular region. (Tr. 27-28, 704,

707, 1295, 1329, 1454-55, 1457). A trial of epidural steroid injections was

recommended but Donnellan stated he wanted to undergo a neurosurgery

consultation before having any other injections. (Tr. 28, 1457, 1463). Shortly after

Donnellan’s fall off the ladder, he was prescribed Gabapentin, Percocet, and Robaxin

for pain management and continued taking the medications despite being told he

would “need to wean” as he healed. (Tr. 27, 513-14, 720). Finally, Donnellan

demonstrated continued fear and guarding with some reaching and strength tasks.

(Tr. 27, 707).

The ALJ also fully considered the record evidence concerning Donnellan’s

mental impairments, including reports and diagnoses of anxiety, depression, PTSD,

and insomnia.10 (Tr. 28-29, 679, 688, 719, 722, 1300). Examination records often

described Donnellan as anxious, having trouble sleeping, experiencing night terrors,

being depressed, and having decreased motivation and energy. (Tr. 510, 676, 688,

790, 1289, 1351). Nevertheless, Donnellan reported that his mental symptoms had

improved and continued to do so with psychiatric therapy. (Tr. 1289-90, 1312, 1321,

1325).

Along with the records, the ALJ reviewed state-agency-psychological-

consultant Dr. Pauline Hightower’s opinion that Donnellan suffered from medically

determinable impairments of depressive, bipolar, and related disorders, as well as

anxiety and obsessive-compulsive disorders. (Tr. 30, 102). Dr. Hightower further

opined that Donnellan had only mild limitations in: understanding, remembering or

applying information; interacting with others; concentrating, persisting, or

maintaining pace; and adapting or managing oneself. (Tr. 103). Overall, Dr.

Hightower found Donnellan’s mental impairments were non-severe, and opined no

10 The ALJ reviewed Donnellan’s mental health records from July 7, 2020 through July 19, 2021;

some of which post-date the state agency’s review. (Tr. 28-29).

functional limitations resulting from his mental impairments, which was reaffirmed

by Dr. James G. Brown. (Tr. 102-104, 119-121). However, the ALJ ultimately found

that neither opinion was persuasive due to their failure to consider Donnellan’s pain

in combination with mental symptoms, which he found supported a limitation of

simple instructions or tasks. (Tr 30).

This is just a sample of the record evidence that supports the ALJ’s RFC

determination, particularly with respect to manipulative, postural, environmental,

and mental limitations. The ALJ considered Donnellan’s condition as a whole, the

RFC determination is supported by substantial evidence, and there is no reversible

error in the ALJ’s arrival at a more restrictive RFC than that suggested by the state-

agency consultants.

C. The ALJ satisfied his obligation to develop a full and fair record.

As Donnellan correctly states, an ALJ has an obligation to develop a full and

fair record. See Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (per

curiam). But Donnellan turns this notion on its head when he suggests that

practitioners create gaps in the record when they do not find functional limitations.

(Doc. 17 at 13, 18-19). This contention is counterfactual and illogical. Even though

the ALJ found the state-agency, medical-consultant opinions to be either partially

persuasive or lacking any persuasive value (because he found—in Donnellan’s

favor—that they were not restrictive enough), Donnellan has made no attempt to

show the existence of any prejudicial gap in the record therefrom. And an ALJ is not

obliged to order a consultative examination when, like here, the record contains

sufficient evidence to support a determination. See Doughty v. Apfel, 245 F.3d 1274,

1281 (11th Cir. 2001); see also 20 C.F.R. § 404.1519a. Thus, Donnellan’s argument

is meritless.

D. The ALJ’s omitting a discussion about statements ascribed to a

medical source in an application for a state-issued, disabled-parking

permit does not warrant remand.

On Donnellan’s behalf, APRN Amy Frantz11 completed a January 13, 2021

application for a disabled-person-parking permit, which is a checkbox form supplied

by the Florida Department of Highway Safety and Motor Vehicles. (Tr. 1426). In

the application, Frantz checked a box for a “Temporary Permit” to certify that

Donnellan “is a person with a temporary disability (six months or less) that limits or

impairs his ability to walk ….” (Tr. 1426) (emphasis added). And to supply a basis

for Donellan’s temporary disability, Frantz checked another box that states:

Inability to walk without the use of or assistance from a brace, cane, crutch,

prosthetic device, or other assistive device, or without assistance of another

person. If the assistive device significantly restores the person’s ability to walk

to the extent that the person can walk without severe limitation, the person is

not eligible for the exemption parking permit.

(Tr. 1426).

11 Given their post-graduate education and experience, as well as their board certification,

advanced practice registered nurses may generally diagnose illnesses, order tests, and prescribe

medications.

The ALJ’s decision makes no mention of this application. Donnellan argues

this constitutes reversible error. He posits that Frantz offered medical opinions by

checking these two boxes on the DMV form, and that the ALJ improperly failed to

explain the extent to which he found them persuasive. (Doc. 17 at 22-24).

A medical opinion is a statement from a medical source about what the

claimant can still do despite any impairments and whether the claimant has

impairment-related limitations or restrictions in the abilities to perform the demands

of work or adapt to conditions of work. See 20 C.F.R. §§ 404.1513(a)(2),

416.913(a)(2). But not all impairments are germane to the analysis. Rather, unless

an impairment is “expected to result in death, it must have lasted or must be expected

to last for a continuous period of at least 12 months.” 20 C.F.R. §§ 404.1509,

416.909. The administration calls this “the duration requirement.” Id. Thus, an ALJ

need not discuss an opined limitation unless it was expected to last a year or more.

And here, to the extent the statements ascribed to Frantz—about a temporary

disability expected to last six months or less—constitute medical opinions, the ALJ

was not required to consider them because they did not satisfy the duration

requirement. See Williams v. Astrue, No. CV-11-0014-CI, 2012 WL 5361038, at *6

(E.D. Wash. Oct. 31, 2012) (a six-month limitation offered in support of an

application for a temporary parking permit does “not meet the duration requirement

and is not sufficient to establish a disability under the Social Security Act”); Stover

v. Saul, No. No. 18-cv-00404-MJR, 2020 WL 897411, *5 (W.D.N.Y. Feb. 25, 2020)

(same).12

Even when medical sources sign applications for parking permits that would

be permanent in nature, courts routinely find that ALJs may disregard the preprinted

statements therein. First, any statements that the applicant is “disabled” are

“inherently neither valuable nor persuasive” because whether the claimant is

disabled for purposes of the Act is a decision that lies within the exclusive province

of the administration. See 20 C.F.R. §§ 404.150b(c)(3)(i), 416.920b(c)(3)(i); see also

Halsell v. Astrue, 357 F. App’x 717, 722 (7th Cir. 2009) (disability parking placard

proves nothing because the disability standard is not the same); Bass v. McMahon,

499 F.3d 506, 511 (6th Cir. 2007) (handicap parking sticker adds nothing to a finding

of disability); Sims v. Astrue, No. CIV.A. 12-469-N, 2013 WL 372151, at *4 (S.D.

Ala. Jan. 30, 2013) (issuance of handicapped parking permit “would not make a

difference in the court’s analysis”).

And second, the preprinted statements in these DMV forms are routinely

vague and conclusory and therefore immaterial. The form at issue is a case in point.

12 For this reason, Donnellan’s authorities are inapposite. He cites Dempsey v. Comm’r of Soc.

Sec., 454 F. App’x 729 (11th Cir. 2011), but in that case the physician applied for a five-year

permit based on a long-term disability. See Dempsey v. Astrue, No. 1:09cv790-SRW, 2011 WL

310253, at *4 (M.D. Ala. Jan. 28, 2011). And he cites Gjertsen v. Comm’r of Soc. Sec., No. 2:17-

cv-48-FtM-CM, 2018 WL 1313118, *3-4 (M.D. Fla. Mar. 14, 2018), in which the physician

applied for a permanent permit.

Given the compound nature of the preprinted certification, one is left to wonder

whether the applicant needs a brace, cane, crutch, prosthetic device, some other

assistive device, or the assistance of another person to ambulate. With the vocational

implications indeterminate, such statements fail to serve as medical opinions for

purposes of the regulatory framework, and an ALJ may disregard them. See Cochran

v. Kijakazi, No. 2:21-cv-3-SMD, 2022 WL 4131094, at *5 (M.D. Ala. Sept. 12,

2022) (conclusory statements in pre-printed, disability-parking applications are

correctly disregarded as immaterial); Randolph v. Colvin, No. 13-cv-242-JHP-PJC,

2014 WL 4930495, *8-9 (N.D. Okla. July 2, 2014), adopted in pertinent part, 2014

WL 4930547 (Oct. 1, 2014) (rejecting argument that handicapped-parking

application constituted treating-physician-opinion evidence); Wilson v. Colvin, No.

13-cv-113-FHM, 2014 WL 357052, *3 (N.D. Okla. Jan. 31, 2014) (handicapped-

parking application with box checked for “[c]annot walk 200 feet without stopping

to rest” was not opinion evidence that ALJ was required to discuss); Bryant v. Astrue,

No. 09-4159-RDR, 2010 WL 4628721, *3, 7 (D. Kan. Nov. 8, 2010) (handicapped-

parking application with box checked for “severely limited in ability to walk at least

100 feet due to an arthritic, neurological, or orthopedic condition” was not “so

probative as to require discussion”).

Thus, the absence of any discussion by the ALJ about the application for a

state-issued, disabled-parking permit does not warrant remand.'°

I. Conclusion

Upon consideration of the submissions of the parties and the administrative

record, substantial evidence supports the ALJ’s decision, and there was either no

error or no harmful error in the ALJ’s application of the correct legal standards.

Accordingly, the decision of the Commissioner is AFFIRMED pursuant to sentence

four of 42 U.S.C. § 405(g), and the clerk is directed to enter judgment in the

Commissioner’s favor, terminate all scheduled events, and close the case.

ORDERED on March 27, 2024.

NICHOLAS P. Aiell

United States Magistrate Judge

'3 Notably, Frantz completed the application just twelve days before Donnellan presented for a

pain-management treatment, during which it was noted that Donnellan did not use an assistive

device. (Tr. 27, 1328).