Kenneth David Jacobus v. Commissioner of Social Secur ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14609
Non-Argument Calendar
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D.C. Docket No. 8:14-cv-00599-PAZ
KENNETH DAVID JACOBUS,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeals from the United States District Court
for the Middle District of Florida
________________________
(October 18, 2016)
Before HULL, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
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Kenneth Jacobus appeals the district court’s order affirming the final
decision of the Social Security Commissioner denying Jacobus’s application for
supplemental security income benefits and disability insurance benefits. Jacobus
alleges he is disabled due to lower back pain, kidney problems, cataracts,
uncontrolled diabetes, fatty liver disease, and cirrhosis of the liver. The
administrative law judge (ALJ) determined Jacobus was not disabled during the
relevant period between August 31, 2010 through March 22, 2013. Jacobus asserts
three issues on appeal, which we address in turn. After review, 1 we affirm the
Commissioner’s denial of benefits.
I. DISCUSSION
A. Credibility finding
Jacobus asserts the ALJ failed to articulate valid and adequately supported
reasons for discounting his credibility, failed to take into account his financial
constraints and aversion to seeking medical treatment, failed to order necessary
medical tests to supplement the record, and selectively focused on medical records
that indicated improvement in his conditions. He also points to several factual
errors in the ALJ’s opinion.
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“We review the Commissioner’s decision to determine 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) (quotations omitted). “Substantial evidence is more than a
scintilla, and is such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Id. (quotation omitted).
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As an initial matter, there are a number of factual errors in the ALJ’s
opinion. First, the ALJ’s statement that Jacobus’s diabetes was described as being
“much better controlled” in October 2011 has no support in the medical records
from that month. There is, however, a note in July 2010 indicating Jacobus’s
diabetes was much better controlled, and another in October 2012 to the same
effect. Second, the ALJ stated that, in October 2011, Jacobus’s primary complaint
was a cough. However, medical records from that month indicate Jacobus
complained of liver problems, swelling in his lower extremities, numbness in his
feet, chest pain, monofilament loss in his toes, frequent urination, fatigue, weight
gain, back pain, joint pain, frequent cough, weakness in both hands for the
previous three to four months, worsening blurred vision, walking imbalance, and
tingling in his left hand.
Third, the ALJ concluded that Jacobus had “good diabetes control” in
February 2012. However, in February 2012, the medical records indicate Jacobus
was taking insulin for his diabetes, but the insulin was not working, and, as a
result, his blood sugar remained high. The only other medical record from that
month noted that Jacobus had “uncontrolled” diabetes. Fourth, the ALJ noted that
he was unable to locate a prescription for a nebulizer in the record, despite
Jacobus’s testimony that he required a nebulizer three times a day. However, the
medical records include a prescription for a nebulizer. Finally, the ALJ’s
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conclusion that Jacobus’s statement in his 2011 function report that he was taking
only aspirin suggested either inaccuracy or noncompliance was incorrect.
Presumably, the ALJ was referring to the November 2011 function report, as that is
the only one in which he listed only aspirin as a medication. However, the form
specifically stated that Jacobus was not to list all the medications that he took, but
only those causing side effects. Accordingly, the fact that Jacobus listed only
aspirin does not suggest either noncompliance or inaccuracy.
Where an ALJ makes a factual error, the error will be considered harmless if
it is clear that the error did not affect the ALJ's ultimate determination. See Diorio
v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983). The ALJ’s factual errors are
harmless, as substantial evidence supports the ALJ’s determination that Jacobus
was not entirely credible. See Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780,
782 (11th Cir. 2014) (explaining credibility determinations are the province of the
ALJ, and we will not disturb a clearly articulated credibility finding supported by
substantial evidence).
First, Jacobus’s arguments on appeal belie his assertion the ALJ did not
provide reasons for determining he was not credible, since he addresses each
specific reason the ALJ provided in his brief, with separate headings, and
challenges each one. See Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir.
2002) (stating if the ALJ discredits the claimant’s subjective testimony, the ALJ
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must articulate explicit and adequate reasons for doing so). Furthermore, the ALJ
explained many of Jacobus’s statements about the severity of his problems were
inconsistent with the medical evidence, and provided several examples.
Next, contrary to Jacobus’s contention the ALJ ignored certain evidence,
there is no rigid requirement the ALJ specifically refer to every piece of evidence
in the decision, so long as the ALJ’s decision is not a broad rejection which is not
enough to enable a reviewing court to conclude the ALJ considered the claimant’s
medical condition as a whole. See Mitchell, 771 F.3d at 782. Jacobus has
identified no specific medical progress reports the ALJ failed to address, with the
exception of reports documenting his diabetes was uncontrolled. However, these
reports do not indicate a worsening of symptoms, but merely show Jacobus’s
diabetes was never entirely controlled. Furthermore, Jacobus admits that, by
October 2012, his blood sugar was much better controlled.
The ALJ discussed the medical records from Dr. Jacob, the Children and
Community Clinic, and the Crescent Free Clinic. The ALJ specifically mentioned
the records from the Children and Community Health Clinic dated January and
February 2012, and the treatment records from October indicated the exams
performed were within normal limits. As to Jacobus’s records from the Crescent
Community Clinic, the ALJ specifically discussed a number of those treatment
notes, as the only medical evidence from March 2012 to October 2012 was from
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the Crescent Community Clinic. The medical records include four instances where
Jacobus saw Dr. Jacob, and the only diagnoses made at any of those appointments
were diabetes and monofilament loss, both of which the ALJ discussed.
Jacobus argues the ALJ failed to properly consider the entire alleged period
of disability, instead focusing on the 12 months immediately following his alleged
onset date. Jacobus presented no medical evidence dated after October 2012, or
before September 2011. Consequently, the ALJ did not err by focusing his
analysis on that time period, as there was no evidence presented for any other time
period.
Additionally, Jacobus has cited no authority supporting a rule that a claimant
may excuse a failure to seek treatment or a lack of medical records because he is
not a “pill person” and does not wish to seek medical treatment. See 20 C.F.R.
§§ 404.1516, 416.916 (stating claimants are not excused from providing medical
evidence because they oppose medical examinations, tests, or treatment for
personal reasons). While poverty excuses noncompliance with treatment, Jacobus
testified he did not seek treatment both because he could not afford it, and because
he did not want it. See Ellison, 355 F.3d at 1275 (stating poverty excuses
noncompliance with prescribed medical treatment). As to treatment before his first
medical record in evidence, Jacobus did not testify that he could not afford medical
care, but rather that he “didn’t want any of that.” Lack of a desire for treatment is
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not good cause for failure to seek treatment, and so there was no error in the ALJ’s
consideration of the lack of treatment before September 2011. See Henry v.
Comm’r of Soc. Sec., 802 F.3d 1264, 1267–68 (11th Cir. 2015) (explaining while
an ALJ may not draw inferences about an individual’s symptoms and their effects
from a failure to seek or pursue regular medical treatment without first considering
any explanations the individual may provide, if the ALJ considers any good cause
explanation for the failure and the ALJ’s determination is also based on other
factors, then no reversible error exists). The ALJ did not primarily rely on
Jacobus’s failure to seek treatment in reaching his decision. See id. at 1268.
Rather, the ALJ extensively discussed the medical evidence of record, and
concluded the evidence did not support Jacobus’s claim he was disabled.
There is little indication in the record that Jacobus ever sought treatment for
his lower back pain, liver and kidney problems, eye problems, or obesity at any of
his medical appointments. While there are records that reflect he complained of
those problems during medical appointments, most of the notes seem to relate to
his diabetes, and do not indicate Jacobus asked the treating physicians for help
with those problems. Jacobus claimed his back pain required him to walk with a
cane, but only a single medical record, on January 16, 2012, indicates he presented
with a cane. Furthermore, after that date, he presented for medical appointments
without the cane, and with no indications of any trouble walking. Dr. Rendon and
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Dr. Mahmaljy both indicated in their reports to the Commissioner that Jacobus
required a cane to walk, but neither mentioned a cane in their treatment notes.
Relatedly, Jacobus testified he had problems with frequent falls, but there is no
indication in his medical records that he mentioned falls to one of his physicians.
Lastly, contrary to Jacobus’s assertion, the ALJ was not required to order nerve
conduction tests, because the burden was on Jacobus to produce evidence in
support of his claims. See Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir.
2003) (explaining while the ALJ has a basic duty to develop a full and fair record,
the claimant bears the burden of proving he is disabled, and, consequently, is
responsible for producing evidence in support of his claim). Accordingly, there is
substantial evidence to support the ALJ’s determination that Jacobus’s subjective
complaints were not entirely credible. 2 See Mitchell, 771 F.3d at 782.
B. Residual Functional Capacity
Jacobus next contends the ALJ’s residual functional capacity (RFC)
formulation is not based on substantial record evidence, and is based on errors of
law, including inadequate evaluation of the medical opinion evidence. Jacobus
asserts the ALJ improperly rejected the opinions of his treating physicians, Dr.
Gabriel Rendon and Dr. G. Mahmaljy. Jacobus contends the ALJ’s RFC
2
As to Jacobus’s perfunctory argument the ALJ erred by giving great weight to Dr. K.
Patel’s opinion, it is arguably abandoned. See Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278-79
(11th Cir. 2009) (explaining that simply stating an issue exists, without further argument or
discussion, constitutes abandonment of that issue). Regardless, the argument is without merit.
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assessment was not supported by substantial evidence and did not take into account
all of his impairments.
As the ALJ articulated good cause for failing to give Dr. Mahmaljy’s and
Dr. Rendon’s opinions controlling weight—including that both doctor’s opinions
were contrary to their respective medical records—there was no error. See Lewis
v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (stating the testimony of a
treating physician must be given substantial or considerable weight, unless good
cause is shown to the contrary); Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir.
2005) (explaining where the ALJ clearly articulates specific reasons for failing to
give a treating physician’s opinion controlling weight, there is no reversible error).
Nor was the ALJ required to investigate whether he was missing relevant treatment
records from Dr. Mahmaljy, especially where Dr. Mahmaljy’s records had been
requested and made part of the medical evidence. See Ellison, 355 F.3d at 1276.
Jacobus’s argument the ALJ did not take into account any evidence
regarding his anxiety, depression, COPD, or need to use a nebulizer is without
merit. Jacobus did not assert those complaints were disabling, and he did not
include them in his disability application or his amendment to the application.
Regardless, the ALJ did take into account his breathing problems by including as a
limitation that he would have to avoid concentrated exposure to odors, fumes
dusts, gases, and poor ventilation.
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Nor did the ALJ err in failing to account for Jacobus’s claimed need to use a
cane, as Jacobus only appeared at one medical appointment with a cane, and
appeared numerous times after that appointment without a cane and with no noted
walking difficulties or gait abnormalities. Substantial evidence supported the
ALJ’s RFC assessment, as the medical evidence was largely consistent with the
assessment. 20 C.F.R. §§ 404.1545(e), 416.945(e) (providing the ALJ must
consider all of a claimant’s alleged impairments in determining the claimant’s
RFC).
C. Hypothetical question
Jacobus contends the ALJ erred by relying on vocational expert testimony
furnished in response to an incomplete hypothetical question, because of the errors
alleged in the first two issues. Since there was no error in either issue, his third
issue also fails.
II. CONCLUSION
Accordingly, we affirm the Commissioner’s decision denying Jacobus’s
application for supplemental security income benefits and disability insurance
benefits.
AFFIRMED.
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