Gilbert v. Comm'r, Soc. Sec. Admin., 22-11825

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: PER CURIAM:
• Parties: DONNA GILBERT, Plaintiff-Appellant, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant-Appellee.
• Docket Number: 22-11825
• Decision Date: 23 May 2023

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DONNA GILBERT, Plaintiff-Appellant,
v.
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant-Appellee.

No. 22-11825

United States Court of Appeals, Eleventh Circuit

May 23, 2023

DO NOT PUBLISH

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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Before WILSON, LUCK, and LAGOA, Circuit Judges.

PER CURIAM:

Donna Gilbert appeals the district court's affirmance of the Social Security Administration's (SSA) denial of her claim for disability insurance benefits (DIB), under 42 U.S.C. § 405(g), and supplemental security income (SSI), under 42 U.S.C. § 1383(c)(3). Gilbert argues that the administrative law judge (ALJ) failed to find that she has a respiratory impairment that met Listing 3.02C(2) despite her providing results of an arterial blood gas (ABG) test satisfying 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 impairments, specifically her meniscus degeneration and tear, scoliosis, neuropathy, and right ankle tendinopathy and tumor; (2) improperly 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 evidence.

In a social security disability case in which the Appeal Council has denied review, we review the ALJ's decision as the Commissioner'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. Comm'r of Soc. Sec.,

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802 F.3d 1264, 1267 (11th Cir. 2015) (per curiam).

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 proceeding, 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 conscientiously 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 remand 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 sequential 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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"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 severe 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 Listing, 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 requirement." Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002) (per curiam). "If a claimant's condition meets or equals the listed impairments, [s]he is conclusively presumed to be disabled and entitled to benefits." Bowen v. City of New York, 476 U.S. 467, 471 (1986). Only if a...