Donna Gilbert v. Commissioner, Social Security Administration

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11825
Non-Argument Calendar
____________________
DONNA GILBERT,
Plaintiff-Appellant,
versus
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 3:20-cv-00107-RGV
____________________
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2 Opinion of the Court 22-11825
Before WILSON, L UCK , and L AGOA , Circuit Judges.
PER CURIAM:
Donna Gilbert appeals the district court’s affirmance of the
Social Security Administration’s (SSA) denial of her claim for disa-
bility insurance benefits (DIB), under 42 U.S.C. § 405(g), and sup-
plemental security income (SSI), under 42 U.S.C. § 1383(c)(3). Gil-
bert argues that the administrative law judge (ALJ) failed to find
that she has a respiratory impairment that met Listing 3.02C(2) de-
spite her providing results of an arterial blood gas (ABG) test satis-
fying the criteria for disability under that Listing. Additionally, she
argues that, when determining her residual functional capacity
(RFC), the ALJ erred by: (1) failing to evaluate all of her impair-
ments, specifically her meniscus degeneration and tear, scoliosis,
neuropathy, and right ankle tendinopathy and tumor; (2) improp-
erly weighing the medical and opinion evidence; and (3) finding
that her subjective complaints and her sister’s and daughter’s third-
party function reports were not consistent with her medical evi-
dence.
In a social security disability case in which the Appeal Coun-
cil has denied review, we review the ALJ’s decision as the Commis-
sioner’s final decision. Viverette v. Comm’r of Soc. Sec., 13 F.4th 1309,
1313 (11th Cir. 2021). We therefore review the ALJ decision the
same as we would of the district court, meaning “we neither defer
to nor consider any errors in the district court’s opinion.” Henry v.
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22-11825 Opinion of the Court 3
Comm’r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (per cu-
riam).
We review the ALJ’s decision to determine whether it is
“supported by substantial evidence and based on proper legal
standards.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176,
1178 (11th Cir. 2011). We review de novo whether the ALJ applied
the correct legal standard. Viverette, 13 F.4th at 1313–14.
“Because a hearing before an ALJ is not an adversary pro-
ceeding, the ALJ has a basic obligation to develop a full and fair
record.” Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997) (per
curiam). The ALJ has the duty to “scrupulously and conscien-
tiously probe into, inquire of, and explore for all the relevant facts.”
Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). An ALJ fails
to satisfy this duty not only when he fails to elicit facts relevant to
the applicant’s claim at the hearing, but also when his decision
omits key information. Id. Such procedural defects require a re-
mand for further agency proceedings. See id. at 735–37.
To determine whether a claimant is disabled for purposes of
DIB and SSI, the Social Security regulations mandate a five-step se-
quential evaluation process. 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4); Viverette, 13 F.4th at 1312. Under the first step, the
claimant has the burden to show that she is not currently engaged
in substantial gainful activity. See 20 C.F.R. §§ 404.1520(a)(4)(i),
416.920(a)(4)(i). At the second step, the claimant must show that
she has a severe impairment. See 20 C.F.R. §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii). The regulations define a severe impairment as an
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4 Opinion of the Court 22-11825
“impairment or combination of impairments which significantly
limit[] [the claimant’s] physical or mental ability to do basic work
activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c).
If the ALJ determines that the claimant “does not have a se-
vere impairment or combination of impairments, the disability
claim is denied.” Bowen v. Yuckert, 482 U.S. 137, 140–41 (1987). If
the claimant has a severe impairment, the evaluation proceeds to
the third step. Id. at 141.
Step three considers whether the claimant has shown that
she has an impairment that “meets or equals a disability described
in the Listing of Impairments, which describes impairments that
are considered severe enough to prevent a person from doing any
gainful activity.” Davis v. Shalala, 985 F.2d 528, 532 (11th Cir. 1993);
20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). “To ‘meet’ a List-
ing, a claimant must have a diagnosis included in the Listings and
must provide medical reports documenting that the conditions
meet the specific criteria of the listings and the duration require-
ment.” Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002) (per
curiam). “If a claimant’s condition meets or equals the listed im-
pairments, [s]he is conclusively presumed to be disabled and enti-
tled to benefits.” Bowen v. City of New York, 476 U.S. 467, 471 (1986).
Only if a claimant does not meet a listing does the analysis proceed
to step four and a consideration of the claimant’s RFC. Id.
The listings on respiratory disorders evaluate “disorders that
result in obstruction (difficulty moving air out of the lungs) or re-
striction (difficulty moving air into the lungs), or that interfere with
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22-11825 Opinion of the Court 5
diffusion (gas exchange) across cell membranes in the lungs.” 20
C.F.R. Pt. 404, Subpt. P, App. 1, Part A1, § 3.00A(1).
To assess the severity of a claimant’s respiratory disorder,
the SSA requires medical evidence, including the claimant’s medi-
cal history, physical examination findings, imaging results, pulmo-
nary function tests, relevant laboratory tests, and descriptions of
treatments prescribed with the claimant’s response to the treat-
ment, depending on the claimant’s respiratory disorder and associ-
ated effects. Id. § 3.00D(1). Spirometry, which measures “how
well [the claimant] move[s] air into and out of [her] lungs,” id.
§ 3.00E(1), and ABG tests, which measure “the partial pressure of
oxygen, PaO2 , and carbon dioxide, PaCO2 , in the arterial blood” are
two types of pulmonary function tests, id. § 3.00D(4).
“An ABG test measures PaO2 , PaCO2 , and the concentration
of hydrogen ions in [the claimant’s] arterial blood.” Id. § 3.00G(1).
The SSA uses “a resting or an exercise ABG measurement to eval-
uate [the claimant’s] respiratory disorder under 3.02C2.” Id. To
use a resting ABG test to meet a listing, the claimant “must be med-
ically stable at the time of the test.” Id. § 3.00G(2)(i). Additionally,
the claimant’s ABG test had to be administered while they were
breathing room air without oxygen supplementation. Id.
§ 3.00G(2)(a)(ii). Furthermore, the resting ABG test must include:
(1) the claimant’s “name, the date of the test, and either the altitude
or both the city and State of the test site;” and (2) “[t]he PaO2 and
PaCO2 values.” Id. § 3.00G(2)(b).
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6 Opinion of the Court 22-11825
Section 3.02 sets forth listing criteria for chronic respiratory
disorders from causes other than cystic fibrosis. Id. § 3.02. Those
listings can be satisfied through different sorts of testing, set forth
in subparts A through D; if any of the four subparts are met, the
claimant has established an impairment meeting the listing. Id.
The subparts are: (1) in subpart A, a forced expiratory volume be-
low a certain threshold for an individual’s height, age, and sex;
(2) in subpart B, a forced vital capacity volume below a certain
threshold for an individual’s height, age, and sex; (3) in subpart C,
a chronic impairment of gas exchange demonstrated in one of three
ways; and (4) in subpart D, complications requiring three hospital-
izations of at least 48 hours within a 12-month period that are at
least 30 days apart. Id. Listing § 3.02 does not provide a specific
durational requirement that the claimant has to meet. See id.
The three sets of criteria for the § 3.02C listing for chroni-
cally impaired gas exchange are: (1) in subpart 3.02C(1), an average
of two unadjusted, single-breath measurements of diffusing capac-
ity of the lungs for carbon monoxide below a certain threshold for
an individual’s height and sex; (2) in subpart 3.02C(2), an arterial
PaO2 below a certain threshold based on the individual’s
PaCO2 , and adjusted for the test site’s elevation above sea level; or
(3) in subpart 3.02C(3), a percentage of oxygen saturation of blood
hemoglobin, measured by pulse oximetry, that is less than or equal
to 87% for test sites below 3,000 feet above sea level (with lower
thresholds for higher elevations). Id. § 3.02C. As to 3.02C(2) spe-
cifically, this listing is satisfied by ABG testing results showing a
PaCO2 of 40 or above and an arterial PaO2 of less than 55 for test site
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22-11825 Opinion of the Court 7
elevations of 3,000 feet above sea level or less. Id. § 3.02C(2). In
Atlanta, the elevation is approximately 1,000 feet above sea level.
See Spot Elevation, Atlanta, Ga., National Map, USGS,
http://apps.nationalmap.gov/viewer (last visited Mar. 22, 2023).
When considering whether a claimant meets the impair-
ments listed in Appendix 1, the ALJ must consider Appendix 1 but
need not “mechanically recite the evidence leading to her determi-
nation,” as “[t]here may be an implied finding that a claimant does
not meet a listing.” Hutchison v. Bowen, 787 F.2d 1461, 1463 (11th
Cir. 1986). In Hutchinson, we explained that it was clear that the
ALJ implicitly found that the claimant did not meet any of the im-
pairments in Appendix 1 because he “was obviously familiar with
the sequential evaluation process,” his decision included a state-
ment of law recognizing that a finding of a listed impairment would
require a determination of disability at step three, and yet he
reached the fourth and fifth steps of the disability analysis. Id. Sub-
stantial evidence to support the finding and inference must be in
the record. Id.; see Edwards v. Heckler, 736 F.2d 625, 629–31 (11th
Cir. 1984) (concluding that the ALJ impliedly found that the claim-
ant failed to meet a particular listing he argued was applicable, as
the listing requirement was substantially identical to the severe im-
pairment requirements at step two of the analysis, which the ALJ
discussed, but going on to reverse this implicit determination as
one not supported by substantial evidence).
In this case, using the SSA’s five-step evaluation, the ALJ
found that Gilbert (1) met the insured status requirements through
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8 Opinion of the Court 22-11825
March 31, 2016, and had not engaged in substantial gainful activity
since October, 30, 2011; (2) had severe impairments of diabetes
mellitus, osteoarthritis of the ankle and knees, asthma, connective
tissue disease/fibromyalgia, and obesity; and (3) did not have an
“impairment or combination of impairments that [met] or medi-
cally equal[ed] the severity of one of the listed impairments in 20
CFR Part 404.” Yet, Gilbert had submitted medical evidence that
her ABG test form May 2016 in Atlanta, GA, demonstrated a PaCO2
of 51.2 and a PaO2 of 51. Considering that a patient meets the List-
ing 3.02C(2) with a Pa CO2 of 40 or above and PaO2 of 55 or below,
this test indicates that she likely meets the requirements of the
3.02C(2) listing. Accordingly, because the ALJ disregarded this rel-
evant medical evidence at step three, the ALJ did not meet his bur-
den of developing a full and fair record and inquiring into all of the
relevant facts in Gilbert’s case. We VACATE and REMAND the
district court’s affirmance of the ALJ’s decision. On remand, the
district court should remand the case to the ALJ to further develop
the record to determine whether Gilbert met all the criteria in List-
ing 3.02C(2). In light of the ALJ’s step three error, we will not ad-
dress Gilbert’s RFC arguments.
VACATED AND REMANDED.
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