           Case: 15-14609   Date Filed: 10/18/2016   Page: 1 of 10


                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 15-14609
                         Non-Argument Calendar
                       ________________________

                   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.


       1
           “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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