           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                                                         [DO NOT PUBLISH]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:
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      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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      R. 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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