Filed: May 29, 2015
Latest Update: Mar. 02, 2020
Summary: Case: 14-13895 Date Filed: 05/29/2015 Page: 1 of 25 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-13895 Non-Argument Calendar _ D.C. Docket No. 1:13-cv-01011-GGB PAUL H. OSTBORG, JR., Plaintiff-Appellant, versus COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Georgia _ (May 29, 2015) Before HULL, ROSENBAUM and FAY, Circuit Judges. PER CURIAM: Case: 14-13895 Date Filed: 05
Summary: Case: 14-13895 Date Filed: 05/29/2015 Page: 1 of 25 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-13895 Non-Argument Calendar _ D.C. Docket No. 1:13-cv-01011-GGB PAUL H. OSTBORG, JR., Plaintiff-Appellant, versus COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Georgia _ (May 29, 2015) Before HULL, ROSENBAUM and FAY, Circuit Judges. PER CURIAM: Case: 14-13895 Date Filed: 05/..
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Case: 14-13895 Date Filed: 05/29/2015 Page: 1 of 25
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13895
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cv-01011-GGB
PAUL H. OSTBORG, JR.,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(May 29, 2015)
Before HULL, ROSENBAUM and FAY, Circuit Judges.
PER CURIAM:
Case: 14-13895 Date Filed: 05/29/2015 Page: 2 of 25
Paul H. Ostborg, Jr., appeals the district judge’s final order affirming denial
of his application for disability and disability-insurance benefits under 42 U.S.C.
§ 405(g) by the Social Security Administration (“SSA”). We affirm.
I. BACKGROUND
Ostborg, a United States military veteran, has suffered from scoliosis, flat
feet, and a leg-length discrepancy for most of his life. In August 1996, Ostborg
filed his first application seeking disability-insurance benefits under Title II and
Part A of Title XVIII of the Social Security Act and represented his disability
began on August 5, 1996. In December 1996, Ostborg suffered a head injury,
when he slipped on ice and fell. On June 25, 1998, an administrative law judge
(“ALJ”) denied his first application (“the 1998 Decision”). Ostborg filed his
second and subject application for disability benefits on September 24, 2004. He
last met the insurance requirements on December 31, 2001.
A. Medical Evidence
1. Mental-Health Records
Dr. Fredric Rose, a neuropsychologist, evaluated Ostborg on January 15,
1998. Ostborg complained he had experienced several impairments since his 1996
accident, including periods of confusion, impaired short-term memory, fatigue,
forgetting details, although he reported good recognition if cued, and language
errors, when stressed or fatigued. While Ostborg was able to perform the activities
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of daily life since his accident, it took effort, and he could no longer accomplish as
much each day. Ostborg was a musician; he reported no difficulty with the
cognitive aspects of playing music since his accident.
After testing Ostborg, Dr. Rose concluded he showed slowed-information-
processing speed and difficulty processing information on the first exposure, but
substantial improvement in recall and retention after subsequent exposures. He
opined Ostborg needed extended time and repetition to process new material, but
Ostborg could complete basic and complex tasks, if given sufficient time and
structure.
Nearly eight months after Dr. Rose’s evaluation, Ostborg asked if he was
“willing to write a note saying [he] can’t work.” R. at 319. Dr. Rose wrote the
requested letter, but instead of stating Ostborg could not work, he summarized his
findings concerning Ostborg’s limitations as follows:
Day to day functioning, therefore, may be affected in part
by this difficulty in processing and encoding even
“automatic” events such as preparing to go out for the
day. Extra time to plan and organize what must be done
is now more of a necessity than in the past. Given
sufficient time and structure, however, there was no
evidence from this evaluation that you would be unable
to complete basic or even complex tasks. Cognition and
intelligence were otherwise sufficiently intact to allow
the performance of most, if not all, tasks previously
completed, though at a slowed pace requiring additional
structure and time.
R. at 318-19.
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On January 21 and February 2, 1998, Ostborg additionally was evaluated by
Dr. John Stuart Currie, also a neuropsychologist. Ostborg complained to Dr.
Currie of short-term-memory problems, lack of concentration, and becoming
fatigued quickly. Ostborg completed an IQ test and performed below expectations,
considering his education. But Dr. Currie attributed this to factors other than a
natural deficit, including Ostborg’s taking Vicodin. Dr. Currie also noted Ostborg
showed confidence in driving, homemaking, exercising, and musical performance.
Ostborg’s next mental-health treatment occurred after December 31, 2001,
the last date he was insured. He obtained psychological and psychiatric treatment
in October 2002, as well as in 2005, 2009 and 2010. Records of these later
treatments discuss his history with his impaired memory, concentration, and
information-processing speed.
2. Physical-Health Records
In July 1997, Ostborg’s primary-care physician, Dr. Charles Demosthenes,
noted Ostborg’s scoliosis had worsened and caused him severe pain.
Dr. Demosthenes also discussed Ostborg’s leg-length discrepancy and explained
other doctors’ reports of the extent of the discrepancy had varied. In September
1997, Dr. Demosthenes referred Ostborg for corrective shoes.
In an October 2001 annual examination, Ostborg reported chronic pain of an
unspecified degree in his neck, back, and extremities. He also reported some
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musculoskeletal pain, but it was controlled with chiropractic treatments and
swimming. He complained of two skin lesions and tightness on his left side after
swimming. According to a July 2004 treatment note, Ostborg stated he never
drank alcohol. In a June 2005 psychiatric general progress note, however, Ostborg
reported he had stopped abusing alcohol in 1969, after being discharged from the
military.
Ostborg has received regular chiropractic treatment from 1990; records from
that treatment generally indicate he suffers from lower back pain, neck spasms, and
stiff, restricted joint movement. In August 2000, chiropractor Richard Franks
wrote a letter in support of Ostborg’s claim for disability benefits from the
Veteran’s Administration (“VA”) and explained corrective shoes helped to
compensate for Ostborg’s leg-length discrepancy.
B. Work History
From 1975 through 1994, Ostborg worked for up to 32 hours per week as a
house manager at Grady Memorial Hospital. He assisted in the relocation of
students and interns, helped assure smooth operation of house management,
monitored security, and sometimes typed letters. Ostborg sat for approximately six
to eight hours per day; he had to walk, stand, and climb stairs occasionally; he did
not lift anything weighing more than ten pounds.
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From 1994 through 1996, Ostborg worked as a security guard. He
maintained basic order and safety of the premises and wrote some reports. He sat
most of the time, walked and climbed stairs occasionally; he never lifted anything
in excess of ten pounds. He also had to undergo first-aid and CPR training for that
position. Neither of these jobs required technical knowledge; he did not supervise,
hire, or fire employees in either position.
C. 1998 ALJ Decision
The 1998 ALJ Decision states Ostborg had represented he was disabled
because of scoliosis, pes planus (flat feet), and leg-length discrepancy in his
previous application for disability benefits. He also had testified about the limiting
effects of his December 1996 fall. The ALJ concluded Ostborg’s testimony
concerning his impairments was incredible in view of the medical evidence and his
description of his activities and lifestyle. The ALJ also discussed various medical
records, including Dr. Currie’s evaluation, which identified no significant memory
or cognitive dysfunctions. The ALJ concluded Ostborg had no more than minimal-
mental impairments to work-related functioning, and he retained the residual
functional capacity (“RFC”) to perform medium work.
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D. VA Disability Determination
On January 16, 1999, the VA determined Ostborg was disabled. 1 The VA
decision lists Ostborg’s disabilities as degenerative-disc disease of the cervical and
lumbar spines, dextroscoliosis of the lumbar spine, degenerative changes of the
thoracic spine, residuals from a head injury, and leg-length discrepancy.
Medical findings of various doctors are summarized in the decision,
including the opinion of Dr. Lee Jacobs that Ostborg could work a desk job for not
more than four hours a day. The rating decision also briefly summarized a
December 21, 1996, report from Cobb Hospital and Medical Center concerning
Ostborg’s accident and stated Ostborg had suffered trauma to the back of his head.
The VA determined Ostborg did not meet the schedular-requirements
disability. 2 The VA rated his disabilities as (1) 20% for degenerative-disc disease
of the lumbar spine with dextroscoliosis, (2) 10% for his leg-length discrepancy,
(3) 10% for degenerative-disc disease and osteoarthritis of the cervical spine,
(4) 10% for degenerative changes of the thoracic spine, and (5) 10% for residuals
from a concussion. Nevertheless, the VA determined that “an extraschedular
permanent and total disability rating [was] authorized,” based on Ostborg’s “level
1
The rating decision in the record is undated; however, the exhibit list states the decision
was issued on January 16, 1999. Additionally, a duplicate-partial copy of the VA rating decision
has the same date handwritten on one of the pages.
2
The schedular requirements are (1) a single disability ratable at 60% or more, or
(2) two or more disabilities combining to 70% with at least one ratable at 40%.
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of disability and other factors, such as [his] age, education and occupational
background.” R. at 192.
E. 2008 ALJ Decision and Remand by the Appeals Council
1. 2008 Hearing
On May 28, 2008, at a hearing concerning Ostborg’s subject application for
disability benefits, Ostborg testified that, as a security guard, he sometimes worked
full-time and sometimes part-time, depending on what was available and what he
could handle. He characterized his job as a house manager as a “desk job” that
involved admitting people to the residence halls.
Ostborg testified his grip was fair. He experienced difficulty walking,
bending over, climbing stairs, and lifting anything over ten pounds. He became
fatigued frequently and needed to lie down several times per day. He had
experienced some improvement in his memory in the seven years following his
1996 fall, but none thereafter.
Immediately following Ostborg’s 1996 fall, he was in a great deal of pain;
he could not drive and had difficulty concentrating. In the past three years,
however, he had driven from Atlanta, Georgia, to Asheville, North Carolina, to
visit his sister. Ostborg lived alone, shopped for himself, and attended church. He
also exercised regularly, by swimming two to three times a week for about 30
minutes, doing aerobics, and walking. At one time, Ostborg had freelanced as a
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violin player, but he could no longer play well because of arthrosis, a degenerative-
joint disease, in his hands.
Ostborg had volunteered at his church periodically for the past year and a
half by sitting at the front desk for about 45 minutes to greet people and make sure
they knew where they were going. For the past three years, he has volunteered at a
museum in Smyrna, Georgia once per week, which also involved greeting people,
asking them to sign in, and showing them around. Asked why he could not
perform his previous job in security in view of his exercise and volunteer activities,
Ostborg responded he volunteered only on a limited basis; his other activities were
low stress and did not require him to be on his feet or to remember anything.
The following exchange occurred between the ALJ and Ostborg:
ALJ: I mean it’s kind of hard to imagine that you
don’t have to concentrate at the museum job
and the church job. I mean you kind of
know a lot of stuff and where to send
people, and you have to know your way
around.
....
Wouldn’t that be similar to what you had to
do at the hospital [or] when you were doing
the security work?
OSTBORG: Well, in a way, but at the hospital I had a lot
more to deal with. A lot more people to, a
lot more people coming in, just a lot more to
do.
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Rawle at 755-56.
2. 2008 ALJ Decision and Remand by the Appeals Council
In September 2008, the ALJ issued a decision denying Ostborg’s claim for
disability benefits. The ALJ mentioned Ostborg had sought and been awarded
disability benefits by the VA but did not discuss further the VA’s disability rating.
Additionally, the ALJ found Ostborg’s testimony concerning his limitations to be
incredible because, in the hearing, he described only minimal volunteer work, but a
Google search of Ostborg revealed a much wider array of activities.
Ostborg sought review from the Appeals Council (“AC”). The AC
remanded the case to the ALJ. The AC concluded the ALJ had failed to provide
Ostborg with the post-hearing evidence obtained from the internet and to discuss
adequately the VA’s disability rating or indicate the weight that the VA’s
determination was accorded.
F. Post-Remand Proceedings
1. 2010 Hearing
At a hearing in November 2010, the ALJ provided Ostborg and his counsel
with printouts from the ALJ’s Google search; Ostborg provided additional
testimony concerning his hobbies and volunteer activities. In August 2008,
following the 2008 hearing, but before the ALJ’s 2008 decision, Ostborg had
presented two sessions on veterans benefits at Life University, which involved
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standing and teaching for approximately an hour each time. Ostborg’s original art
work was displayed at an exhibition at the Smyrna Library Gallery for about two
months. Approximately 8 to 10 drawings and paintings, which Ostborg had
produced over the past forty years, were on display. While Ostborg did not need to
be present during the exhibition, he went approximately once a week to check in.
Ostborg further testified he had taken numerous pictures of houses and
properties for the Smyrna Historical and Genealogical Society (“SHGS”) in 2006.
He did so approximately once a month for three years. Additionally, Ostborg
volunteered at the SHGS museum three Saturdays per month, which involved
remaining at a desk, assisting people as needed, and answering questions. He was
a member of the Cobb County Stamp Club. He attended meetings, which occurred
twice a month, and volunteered at shows periodically.
Ostborg had given violin and viola instruction privately in the past, but he
had not done so for at least the past five years. When he last taught violin, Ostborg
had one student, with whom he met once a week for approximately one year.
Although Ostborg was listed on the roster of private violin instructors for a middle
school in Georgia, he did not know how his name came to be on that list. Ostborg
was asked again why he could not have used his mind to work instead of to
volunteer; Ostborg responded he volunteered only occasionally, and he could
pursue his volunteer and other activities as he was inclined.
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2. 2011 ALJ Decision and Request for Review
Although Ostborg represented his disability began on August 5, 1996, the
ALJ concluded the June 25, 1998, denial of his previous application had the effect
of administrative res judicata. Consequently, the relevant period began on June 26,
1998. The ALJ followed the five-step sequential process in evaluating Ostborg’s
disability claim. 3 At step two, the ALJ found Ostborg had the severe impairments
of scoliosis, leg-length discrepancy, and residuals from a 1996 closed-head injury.
In evaluating the effects from Ostborg’s 1996 fall and head injury, the ALJ
discussed Dr. Rose’s findings and letter at length. In the analysis at step three, the
ALJ acknowledged Ostborg had exhibited deficits on medical examinations with
regard to concentration, persistence, or pace, but found he was only mildly
impaired, because he was able to drive long distances and navigate to new areas
successfully. At step four, the ALJ found Ostborg capable of performing only light
work, because of his leg-length discrepancy. Because of his lapses in
concentration, the ALJ also determined he could work up to 32 hours per week.
3
Under the five-step sequential process to determine whether a claimant is disabled, the
claimant must show (1) he is not currently engaged in substantial gainful activity; (2) he has a
severe impairment; (3) his impairment meets or equals the criteria in one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1; and (4) his impairment prevents him
from performing his past relevant work. 20 C.F.R. § 404.1520(a)(4)(i)-(iv). If the claimant
shows he cannot perform his past relevant work, then, at the fifth step, the burden shifts to the
Commissioner to show significant numbers of jobs exist in the national economy the claimant
can perform. Id. § 404.1520(a)(4)(v).
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The ALJ found Ostborg’s medically determinable impairments could
reasonably be expected to produce his alleged symptoms but decided his testimony
regarding the intensity, persistence, and limiting effects of those symptoms to be
incredible. The ALJ explained Ostborg was engaged in a far wider variety of
hobbies and activities than he originally had represented. While these hobbies and
activities did not directly contradict his allegations of disability, the ALJ found
they were sufficiently inconsistent with his stated mental limitations and did not
support his overall credibility. The ALJ noted various inconsistent statements
Ostborg had made elsewhere in the record, including the discrepancy in his
statements to his doctors concerning his alcohol consumption. Additionally, the
ALJ highlighted Ostborg’s testimony he could not direct his energies toward work,
in view of his volunteer and other activities, because he volunteered only randomly
and pursued his hobbies, when he was so inclined. The ALJ also found the VA’s
disability determination had “little bearing” on Ostborg’s claim for Social Security
disability benefits, because the VA used a different standard to assess disability
and may not have been aware of his hobbies and activities. R. at 41.
Ostborg again requested AC review of the ALJ’s decision. This time, the
AC denied review and adopted the ALJ’s decision as the final decision of the
Commissioner. Through counsel, Ostborg has appealed that decision to this court.
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II. DISCUSSION
As an initial matter, the government states the relevant time period of
disability for Ostborg’s case began on June 26, 1998, because the 1998 Decision
had the effect of administrative res judicata. Ostborg does not discuss this issue in
his initial brief. In his reply brief, he asserts (1) the ALJ actually considered the
relevant period to have begun on August 28, 1996, despite the purported
application of administrative res judicata; and (2) the application of administrative
res judicata is immaterial to his arguments on appeal.
“[T]he law is by now well settled in this Circuit that a legal claim or
argument that has not been briefed before the court is deemed abandoned and its
merits will not be addressed.” Access Now, Inc. v. Sw. Airlines Co., 385 F.3d
1324, 1330 (11th Cir. 2004). Abandonment can occur when an appellant makes
only passing reference to the claim. Sapuppo v. Allstate Floridian Ins. Co.,
739
F.3d 678, 681-82 (11th Cir. 2014). Moreover, we will not address arguments made
for the first time in a reply brief.
Id. at 682-83.
Because Ostborg did not raise the issue of administrative res judicata in his
initial brief, he has abandoned it. Access Now, Inc., 385 F.3d at 1330. His mention
of the issue in his reply brief is both belated and insufficient to raise an argument
of error, because (1) he first raises it in his reply brief, and (2) in the two sentences
where he discusses the issue, he maintains the application of res judicata was
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immaterial or the ALJ did not actually apply it, not that the ALJ erred in applying
it. Sapuppo, 739 F.3d at 681-83. Accordingly, we deem this issue abandoned.
Our subsequent discussion clarifies Ostborg has not shown reversal is warranted,
even if the ALJ implicitly determined he was not disabled prior to June 26, 1998.
A. ALJ Gave Sufficient Weight to VA’s Rating Decision
Ostborg argues the ALJ failed to accord the VA’s rating decision sufficient
weight and provided an inadequate explanation for the determination the VA’s
decision had little bearing on Ostborg’s claim for Social Security disability
insurance benefits. He also argues the ALJ discussed the medical evidence that
was provided in support of and summarized in the VA’s decision.
We review the ALJ’s decision for substantial evidence but his application of
legal principles de novo. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.
2005). The SSA regulations provide a decision by any nongovernmental or
governmental agency concerning whether an individual is disabled, based on that
agency’s own rules, does not constitute an SSA decision regarding whether that
individual is disabled. 20 C.F.R. § 404.1504. A VA rating, while not binding on
the SSA, “is evidence that should be considered and is entitled to great weight.”
Brady v. Heckler,
724 F.2d 914, 921 (11th Cir. 1984) (internal quotation marks
omitted); see also Rodriguez v. Schweiker,
640 F.2d 682, 686 (5th Cir. Unit A Mar.
1981).
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For Social Security purposes, a claimant is entitled to disability insurance
benefits, when he proves he is under a disability, meaning he is unable “to engage
in any substantial gainful activity by reason of any medically determinable
physical or mental impairment.” 42 U.S.C. § 423(a)(1)(E), (d)(1)(A). In contrast,
the VA generally will grant total disability, when “there is present any impairment
of mind or body which is sufficient to render it impossible for the average person
to follow a substantially gainful occupation.” 38 C.F.R. § 3.340(a)(1).
Additionally, the VA “shall give the benefit of the doubt to the claimant,”
whenever “there is an approximate balance of positive and negative evidence
regarding any issue material to the determination of a matter.” 38 U.S.C. § 5107.
In Brady, the claimant received a 100% disability rating from the VA, but
the ALJ concluded the claimant did not have a severe impairment. Brady, 724
F.2d at 917. Based on the medical evidence, we concluded the claimant had a
severe impairment and remanded for the ALJ to consider whether his impairments
precluded him from performing his past work.
Id. at 921. In Rodriguez, we
concluded the ALJ should have “more closely scrutinized” the VA’s disability
rating of 100% for the claimant, where the ALJ mentioned the rating but
“obviously refused to give it much weight.”
Rodriguez, 640 F.2d at 686.
The record in this case shows the ALJ closely scrutinized the VA’s disability
decision and gave specific reasons for determining the VA’s determination had
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little bearing on Ostborg’s case. See Brady, 724 F.2d at 917;
Rodriguez, 640 F.2d
at 686. Substantial evidence supports the ALJ’s reasons for discounting the VA’s
determination, because that determination makes no mention of Ostborg’s
wide-ranging hobbies and interests. In addition, the ALJ correctly explained the
VA and SSA use different criteria for determining disability. Compare 38 C.F.R.
§ 3.340(a)(1), with 42 U.S.C. § 423(a)(1)(E), (d)(1)(A).
Notably, this case is distinguishable from Brady and Rodriguez. In contrast
to Brady, the ALJ determined Ostborg suffered from severe impairments. See
Brady, 724 F.2d at 917. Moreover, in contrast to the claimants in Brady and
Rodriguez, Ostborg was not given a 100% disability rating from the VA; instead,
his maladies fell short of meeting the VA’s schedular requirements for disability,
but he was given a permanent and total disability rating based on extraschedular
factors. See id. ;
Rodriguez, 640 F.2d at 686. Moreover, the VA’s rating decision
in Ostborg’s case, provides scant explanation for applying those extraschedular
factors to reach a determination of total disability, when the schedular factors do
not meet the VA’s disability criteria.
Ostborg’s argument the ALJ failed to acknowledge medical records
provided in support of the VA’s decision is meritless. Much of the medical
evidence summarized in the VA’s decision was not in the record before the ALJ in
this case. The ALJ’s specific reasons for discounting the VA’s determination show
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he considered and closely scrutinized that determination; consequently, the ALJ
did not misapply the law in discounting it. See Moore, 405 F.3d at 1211;
Rodriguez, 640 F.2d at 686.
B. Substantial Evidence Supporting ALJ’s Work Finding
Ostborg argues the ALJ’s RFC finding is unsupported by substantial
evidence, because the finding conflicts with medical evidence underlying the VA’s
disability rating. He also contends the ALJ failed to discuss the reasons for
disregarding Dr. Rose’s opinion concerning his concentration and pace limitations
or the limitations created by his leg-length discrepancy. Finally, Ostborg contends
he was unable to perform his previous jobs. Regarding his security-guard job, he
argues the Dictionary of Occupational Titles provides security-guard work
involves responding quickly to unexpected circumstances.
We review the ALJ’s decision for substantial evidence. Moore, 405 F.3d at
1211. “Substantial evidence is less than a preponderance, but rather such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.”
Id. The Social Security Regulations state a five-step process used to
determine whether a claimant is disabled. See 20 C.F.R. § 404.1520(a)(4). Under
the first four steps of that process, the claimant must show: (1) he is not currently
engaged in substantial gainful activity; (2) he has a severe impairment; (3) his
impairment meets or equals the criteria in one of the listings of impairments; and
(4) his impairment prevents him from performing past relevant work, if it does not
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meet or equal one of the impairments in the listings. Id. § 404.1520(a)(4)(i)-(iv).
If the claimant shows he cannot perform his past relevant work, then, at the fifth
step, the burden shifts to the Commissioner to show significant numbers of jobs
exist in the national economy the claimant can perform.
Id. § 404.1520(a)(4)(v).
At step four, the ALJ assesses the claimant’s RFC and ability to perform
past relevant work. Id. § 404.1520(a)(4)(iv). The RFC assessment is based on all
relevant evidence of a claimant’s abilities to do work despite his impairments.
Lewis v. Callahan,
125 F.3d 1436, 1440 (11th Cir. 1997) (citing 20 C.F.R.
§ 404.1545(a)). “Light work” is defined as work involving “lifting no more than
20 pounds at a time with frequent lifting or carrying of objects weighing up to 10
pounds.”
Id. § 404.1567(b). A job in the light-work category may require “a good
deal of walking or standing, or . . . sitting most of the time with some pushing and
pulling of arm or leg controls.”
Id.
The claimant bears the burden of showing he cannot perform his past
relevant work. Lucas v. Sullivan,
918 F.2d 1567, 1571 (11th Cir. 1990). A
claimant must show he is unable to perform his past kind of work, not merely that
he is unable to perform a specific job held in the past. Jackson v. Bowen,
801 F.2d
1291, 1293 (11th Cir. 1986) (citing 20 C.F.R. § 404.1520(e)). At the fourth step,
the ALJ assesses the claimant’s RFC. Phillips v. Barnhart,
357 F.3d 1232, 1237
(11th Cir. 2004). “[T]he regulations define RFC as that which the individual is
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still able to do despite the limitations caused by his or her impairments.” Id. (citing
20 C.F.R. § 404.1545(a)). The ALJ makes the RFC determination based on all
relevant medical and other evidence in the case.
Id.
1. ALJ’s RFC Assessment
Substantial evidence supports the ALJ’s determination Ostborg could
perform light work for 32 hours per week, despite his leg-length discrepancy. See
Moore, 405 F.3d at 1211. Ostborg obtained corrective shoes, which according to
his chiropractor, helped to compensate for his leg-length discrepancy.
Additionally, Ostborg testified he frequently walked and swam. Consequently,
substantial evidence supports the ALJ’s finding that Ostborg could perform light
work. See
id.
Contrary to Ostborg’s contention, the ALJ gave sufficient reasons for the
determination his leg-length discrepancy limited him to light work. The ALJ
described Ostborg’s leg-length discrepancy in detail at step two of the analysis,
including the treatment he had obtained. The ALJ also found, at step three,
Ostborg was able to function normally, evidenced by his exercising regularly.
Moreover, substantial evidence supports this conclusion because Ostborg’s
October 2001 treatment notes show his musculoskeletal pain was well controlled
with chiropractic treatment and regular swimming, his chiropractor opined
Ostborg’s corrective shoes helped compensate for his leg-length discrepancy, and
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Ostborg testified he walked, swam, and did aerobics regularly. See Moore, 405
F.3d at 1211.
The medical reports and RFC assessments in the record support the ALJ’s
conclusion Ostborg was able to work on a part-time basis, despite any pace
limitations. For instance, Dr. Rose opined (1) Ostborg was capable of performing
most, if not all, tasks that he was previously able to perform, despite needing extra
time and structure; (2) he could perform complex tasks with sufficient time and
structure; and (3) his cognition and intelligence were otherwise sufficiently intact.
The ALJ discussed Dr. Rose’s report and concluded Ostborg’s cognitive
limitations were mild, and Dr. Rose’s assessment does not contradict that
conclusion. Moreover, the ALJ explicitly accounted for Ostborg’s lapses in
concentration and inability to sustain sufficient concentration for a 40-hour work
week. Ostborg’s argument the ALJ’s RFC decision is unsupported by substantial
evidence, because it conflicts with the evidence underlying the VA’s decision is
meritless. The evidence underlying the VA’s decision to which Ostborg refers, Dr.
Jacobs’s opinion Ostborg could perform only sedentary work for four hours a day,
was not in the record. Instead, the record contained only the brief summary of that
evidence, which was recited in the VA’s decision.
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2. Ostborg’s Ability to Perform his Past Relevant Work
Ostborg does not dispute his previous jobs as a house manager and in
security services were past-relevant work for purposes of the Social Security
regulations. Ostborg’s prior jobs involved mostly sitting, only occasional lifting
objects less than ten pounds, some typing, and did not include supervising others.
Nothing in the record shows these tasks were beyond his RFC. He described his
house-manager job as a desk job and acknowledged it was somewhat similar to his
volunteer roles at the church and museum. Ostborg’s testimony his work as a
house manager involved “a lot more people” and “a lot more to do” than his
volunteer roles, does not show that such a role was beyond his abilities, because it
is not clear that admitting more people would tax his abilities to process new
information. Instead, Ostborg described a greater frequency of the same task, and
Ostborg has not shown he had difficulties repeating tasks. See Lucas, 918 F.2d at
1571.
Because Ostborg previously has not raised his argument concerning the
nature of security-guard work as described in the Dictionary of Occupational
Titles, we need not address it. See Kelley v. Apfel, 185 F.3d 1211, 1215 (11th Cir.
1999) (declining to reach an argument not raised before the SSA or the district
court that the ALJ should have relied on a VE’s testimony). Ostborg has not met
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his burden of showing he could not perform his past relevant work. See Lucas, 918
F.2d at 1571.
C. ALJ’s Credibility Determination
Ostborg contends the ALJ identified only minor discrepancies in his various
statements, such as his allegedly inconsistent statements concerning alcohol
consumption. He contends these discrepancies and his wide range of hobbies and
activities were insufficient to contradict his allegations of disability.
Credibility determinations are the province of the ALJ, and we will not
disturb a clearly articulated credibility finding absent substantial evidence.
Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014). When a
claimant attempts to show disability through his own testimony about pain or other
subjective symptoms, the ALJ must consider that testimony if the ALJ finds
evidence of an underlying medical condition and either (1) objective medical
evidence to confirm the severity of the alleged symptoms arising from that
condition, or (2) the objectively determined medical condition is of a severity that
reasonably can be expected to give rise to the alleged symptoms. See Foote v.
Chater,
67 F.3d 1553, 1560 (11th Cir. 1995). If the claimant establishes an
underlying medical condition that reasonably could be expected to produce the
symptoms, “all evidence about the intensity, persistence, and functionally limiting
effects of pain or other symptoms must be considered in addition to the medical
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signs and laboratory findings in deciding the issue of disability.” Id. at 1561. If
the ALJ decides not to credit a claimant’s testimony regarding his subjective
symptoms, the ALJ must articulate “explicit and adequate reasons for doing so.”
Id. at 1561-62. The ALJ may consider a claimant’s daily activities in discrediting
complaints concerning subjective conditions. See Harwell v. Heckler,
735 F.2d
1292, 1293 (11th Cir. 1984) (concluding the ALJ properly considered a variety of
factors, including the claimant’s daily activities, in making a finding about his
allegations of severe pain).
In this case, the ALJ discussed Ostborg’s mental limitations earlier in his
decision and found them to be mild based on the objective medical evidence. In
discussing Ostborg’s credibility, the ALJ stated several specific reasons for
discounting Ostborg’s statements concerning his symptoms, and substantial
evidence supports those reasons. Foote, 67 F.3d at 1561-62. Specifically, the ALJ
found Ostborg was engaged in a wider array of activities than he originally had
represented. Substantial evidence supports this determination, because Ostborg
had failed to testify about his violin instruction, photography, art exhibition, and
involvement in the stamp club. Moreover, the ALJ’s consideration of Ostborg’s
wide range of activities was proper, because (1) Ostborg alleged he was unable to
work, in part, because of his mental impairments, but (2) his wide ranging
activities included activities the ALJ found to be similar or more mentally
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challenging than his previous jobs. See Harwell, 735 F.2d at 1293. The ALJ’s
discussion of other inconsistent statements, such as those concerning Ostborg’s
alcohol consumption, even if erroneous, was harmless, since substantial evidence
supports the ALJ’s credibility finding. See
Mitchell, 771 F.3d at 782; Diorio v.
Walker,
721 F.2d 726 728 (11th Cir. 1983) (concluding the ALJ’s
mischaracterization of the claimant’s post-relevant work was harmless error,
because such characterization of vocational factors was irrelevant when the ALJ
found no severe impairment). The ALJ’s credibility determination is supported by
substantial evidence. See
Mitchell, 771 F.3d at 782.
III. CONCLUSION
In summary, the ALJ did not misapply the law in determining the VA’s
disability rating had little bearing on Ostborg’s disability benefits claim. In
addition, substantial evidence supported the ALJ’s findings (1) Ostborg possessed
the RFC to perform light work on a part-time basis and his past relevant work; and
(2) his testimony concerning the persistence, severity, and limiting effects of his
impairments was not credible.
AFFIRMED.
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