Ricardo Rye v. SSA

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1760
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Ricardo L. Rye, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Social Security Administration, *
Michael J. Astrue, Commissioner, * [UNPUBLISHED]
*
Appellee. *
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Submitted: July 25, 2008
Filed: August 7, 2008
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Before MELLOY, COLLOTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Ricardo L. Rye appeals the district court’s1 decision affirming the denial of
disability insurance benefits (DIB). Rye alleged disability since March 2002 from
arthritis and pain-related depression. After a hearing, an administrative law judge
(ALJ) determined that (1) Rye’s back problems and Hepatitis C (HCV) were severe
impairments, but not of listing-level severity alone or combined; (2) his subjective
1
The Honorable John F. Forster, Jr., United States Magistrate Judge for the
Eastern District of Arkansas, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).
complaints were not fully credible; (3) he had the residual functional capacity (RFC)
to perform light work; and (4) based on the testimony of a vocational expert (VE), he
could perform two of his past jobs and also other specified jobs. The Appeals Council
denied review, and the district court affirmed. Having carefully reviewed the record
and considered Rye’s arguments, we find no basis for reversal. See Hamilton v.
Astrue, 518 F.3d 607, 610 (8th Cir. 2008) (standard of review).
We find no inaccuracies in the ALJ’s summary of the evidence related to Rye’s
degenerative joint disease and HCV. Even if Rye had some pain from degenerative
joint disease and this condition would likely worsen over time, that does not
necessarily mean his pain was disabling before his insured status expired in March
2006, see Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001) (real issue is severity
of claimant’s pain); Pyland v. Apfel, 149 F.3d 873, 876 (8th Cir. 1998) (to qualify for
DIB, claimant must establish existence of disability before expiration of his insured
status); and there was no medical-record support for a diagnosis of HCV or any
related treatment or reported symptoms, see Kirby v. Astrue, 500 F.3d 705, 707-08
(8th Cir. 2007) (discussing severity of impairment, which claimant has burden of
establishing). We further conclude that the ALJ properly discounted Dr. Campos’s
physical-RFC findings, and that the ALJ’s physical-RFC findings are supported by
substantial evidence. We question whether Dr. Campos qualifies as a treating
physician, and the doctor himself testified that his RFC findings were unreliable and
based entirely on Rye’s reports, and that an orthopedist’s opinion would be entitled
to more weight. See Kirby, 500 F.3d at 709 (consulting physician’s opinion was not
entitled to deference, and it was based on subjective complaints and conflicted with
another consultant’s opinion); Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007)
(noting that it is ALJ’s responsibility to determine RFC based on medical records,
observations of treating physicians and others, and claimant’s own description of his
limitations).
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There is also substantial evidence to support the ALJ’s rejection of Rye’s
contention that he has disabling organic brain syndrome and depression. Among other
things, Rye did not allege organic brain syndrome as a basis for disability until the
hearing, and then he did so only indirectly, cf. Dunahoo v. Apfel, 241 F.3d 1033, 1039
(8th Cir. 2001) (fact that claimant did not allege depression on benefits application is
significant even if evidence of depression was later developed); he never sought
treatment for organic brain syndrome or depression; and neither of the consulting
psychologists diagnosed depression. Thus, the ALJ was not required to adopt the
related mental-RFC findings of the two psychologists. Finally, we decline to address
Rye’s remaining arguments. See Ahlberg v. Chrysler Corp., 481 F.3d 630, 634 (8th
Cir. 2007) (“points not meaningfully argued in an opening brief are waived”).
Accordingly, we affirm.
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