Paul H. Ostborg, Jr. v. Commissioner of Social Security

610 F. App'x 907
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 29, 2015
Docket14-13895
StatusUnpublished
Cited by22 cases

This text of 610 F. App'x 907 (Paul H. Ostborg, Jr. v. Commissioner of Social Security) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Paul H. Ostborg, Jr. v. Commissioner of Social Security, 610 F. App'x 907 (11th Cir. 2015).

Opinion

PER CURIAM:

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 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 *909 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.

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 mus-culoskeletal 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 stu *910 dents 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.

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.

D. VA Disability Determination

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610 F. App'x 907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paul-h-ostborg-jr-v-commissioner-of-social-security-ca11-2015.