Masterson v. Barnhart

* Jo Anne B. Barnhart is automatically substituted for the previous Commissioner. See 42 U.S.C. § 405(g);
FED. R. CIV. P. 25(d)(1).
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-51137
_______________
JOHN F. MASTERSON, JR.,
Plaintiff-Appellant,
VERSUS
JO ANNE B. BARNHART,*
COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
September 4, 2002

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Before DAVIS, SMITH, and BENAVIDES,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
John Masterson appeals a judgment entered
by the magistrate judge, sitting by consent of
the part ies (hereinafter the “district court” or
the “court”), affirming the Social Security
Commissioner’s decision to deny his applica-
tion for disability benefits. Concluding that
substantial evidence supports the administra-
tive law judge’s (“ALJ’s”) denial of benefits,
we affirm.
I.
Masterson, an accountant by training, ap-
plied for Social Security disability benefits in
1994, claiming he had suffered from post-
traumatic stress disorder (“PTSD”) since
1993 because of his combat service in Viet-
nam. Masterson contended that PTSD con-
tributed to an inability to work with others,
fear of the future, and intrusive thoughts. De-
spite these alleged symptoms, he acknowl-
edged that he still could perform everyday
tasks and tend to his personal needs.
After Masterson’s application was denied
initially and on reconsideration, he requested a
de novo hearing before an ALJ, who con-
sidered Masterson’s medical history and po-
tential evidence of PTSD. Medical records
from the Veteran’s Administration (“VA”) in-
dicate that Masterson had complained of de-
pression and PTSD in 1991. The treating phy-
sician, however, ruled out PTSD and diag-
nosed dysthymia. Masterson then began
psychotherapy. In December 1991, a VA phy-
sician reported that Masterson had some
PTSD symptoms and prescribed anti-de-
pressant medication.
Masterson was first diagnosed with PTSD
in October 1992. The diagnosing psychother-
apist also established a working diagnosis of
alcohol dependence by history, and a probable
personality disorder, not otherwise specified,
with dependent, self-defeating features. In
November 1992, the psychotherapist identified
the working diagnoses as PTSD, dysthymia,
and alcohol dependence in remission.
In April 1994, the VA provided a “Rating
Decision” that Masterson was unemployable
and entitled to individual unemployability ben-
efits. The Rating Decision stated that Mas-
terson was depressed and anxious, that the VA
examiner found him moderately to severely
impaired in his occupational functioning, and
that he had service-connected disabilities for
shell fragment wounds to the left chest and left
arm.1 VA medical records also indicate that
Masterson had sleep apnea, which was well
controlled with medication and a breathing
apparatus.
In January 1995, Dr. George Robison per-
formed a consultative medical examination at
the request of the Texas Rehabilitation Com-
mission. Masterson reported that he had back
pain, but no radiation, and that he did not find
the pain limiting. Robison reported Mas-
terson’s past medical history of PTSD and
noted that Masterson’s hearing, emotional af-
fect, and gross mental status were normal.
Also in January 1995, Dr. Stuart Nemir, Jr.,
performed a consultative psychological exam-
ination requested by the Texas Rehabilitation
1 Masterson was hospitalized briefly in 1994 for
chest pain caused primarily by his history of
pleurisy or costochondritis. The discharge diagno-
sis was costochondritis with atypical chest pain and
mild chronic obstructive pulmonary disease.

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Commission. Masterson reported to Nemir
that he was active in Alcoholics Anonymous,
that he had a good relationship with his four
sons, and that his daily activities included pre-
paring meals for himself and his son, driving
his son to school, doing household chores, vis-
iting with acquaintances on the phone, work-
ing with the computer, engaging in leisure ac-
tivities, and keeping up with current events
through television and the newspaper. Nemir
observed that Masterson was alert and his
affect was appropriate; he saw no signs of
depression or thought disorder.
Nemir diagnosed personality disorder, not
otherwise specified, and sleep disorder. Nemir
concluded that if Masterson “has PTSD, it
certainly is atypical” and that “[w]ith this
man’s educational background and talent to-
gether with his intelligence, I think the prog-
nosis for him is fair to good.”
In June 1995, Robert O’Brien, Ph.D.,
another VA psychotherapist, reported that
Masterson continued to experience recurrent
combat memories and nightmares and demon-
strated markedly diminished interest and par-
ticipation in significant activities. O’Brien
opined that Masterson had moderate problems
in performing act ivities of daily living, mod-
erate difficulty in maintaining social func-
tioning, and frequent problems with concen-
tration, persistence, and pace that resulted in a
failure to complete tasks in a timely manner.
O’Brien also indicated that Masterson often
failed to start even simple tasks, such as re-
turning phone calls. He assessed chronic
PTSD secondary to combat service and
wounding in Vietnam, dysthymia secondary to
PTSD, guilt, and sense of failure.
The ALJ also heard testimony at the hear-
ing in June 1996 from Masterson, a medical
expert, and a vocational expert. Masterson
testified that he was forty-seven years old with
a masters degree in accounting. He said he
had difficulty sleeping, headaches, high fre-
quency hearing loss, skin problems, sleep ap-
nea, polyps on his colon, and depression. He
identified an inability to concentrate as the
main reason he could not work. He stated that
he occasionally experienced chest pain, which
medication resolved within one minute.
Masterson also testified that at his last job,
he had threatened to assault two persons who
had said something about the men who died in
Vietnam being losers. He stated that he had
begun to hurt people years ago but had been
able to stop and that he had not assaulted any-
one since 1982. He said, however, that he re-
cently had hit his twenty-one-year-old son in
the side of his head but did not injure him.
Masterson stated that he did laundry once
a month, went grocery shopping late, watched
television, occasionally watched movies with
his son, read, played solitaire on the computer,
and attended Alcoholic Anonymous meetings,
after which he often would join others for a
meal. He attended therapy and lunched week-
ly with four friends, who were also combat
veterans.
Dr. Joe Berry, a psychiatrist with forty-two
years of experience, testified as a medical ex-
pert and noted that the medical records
showed diagnoses of PTSD, alcohol depen-
dency, dysthymia, and a personality disorder.
Berry stated that Masterson’s testimony did
not sustain a diagnosis of PTSD. He also tes-
tified that, based on the medical evidence,
Masterson had slight restrictions on daily
activities, slight to moderate difficulties in so-
cial functioning, and seldom to often-exper-
ienced deficiencies of concentration. On

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cross-examination, Berry testified that, based
on Masterson’s testimony, Masterson would
have moderate to marked restrictions of daily
activities and moderate to marked difficulties
in maintaining social functioning, and he often
would experience deficiencies in concen-
tration.
Dr. Robert Marion, Professor of Special
Education and Rehabilitation at the University
of Texas at Austin, testified as a vocational ex-
pert and opined that Masterson had skills
transferrable to sedentary and light jobs, given
his education and age. Marion also said that
sedentary and light jobs not requiring much
interaction with the public existed in significant
numbers in the national economy.
Marion identified several sedentary jobs
that Masterson could perform without expos-
ure to stressful situations and with less public
interaction than his previous accounting jobs
required: assembly worker, order clerk, ap-
pointment clerk, and security officer. Marion
also identified several suitable non-stressful
light jobs: mail clerk, general office clerk-
gopher, and assembly worker. Marion testi-
fied, however, that Masterson could not per-
form any of these jobs if he lost his concen-
tration fifty percent of the time, as Masterson
had testified he did.
The ALJ denied Masterson’s application for
benefits and made eight main determinations:
(1) that Masterson had not had substantial
gainful activity since March 31, 1993; (2) that
Masterson suffered from obstructive sleep
apnea and personality disorder but did not
have an impairment or combination of
impairments that met or equaled the severity of
an impairment listed in 20 C.F.R. Part 404,
Subpart B, Appendix 1.; (3) that Masterson
was not disabled within the meaning of the
Social Security Act; (4) that Masterson’s
allegations of disabling symptoms were not
fully credible; (5) that the medical evidence did
not support the VA’s PTSD diagnosis; (6) that
Masterson had the residual functional capacity
to perform sedentary and light work not
involving exposure to stressful situations or
dealing with the public; (7) that Masterson had
skills transferrable to sedentary and light work;
and (8) that Masterson was able to perform
work existing in significant numbers in the
national economy.
The Appeals Council denied Masterson’s
request to review the ALJ’s decision on the
merits. The Council reviewed the evidence
presented to the ALJ, as well as new evidence
submitted by Masterson, namely, a report by
Dr. Kevin McFarley dated September 22,
1997.
McFarley reported that Masterson was cur-
rently functioning at the “Very Superior (Men-
tally Gifted)” range of overall intellectual abil-
ity. Although Masterson did not indicate any
significant area of cognitive or intellectual de-
ficit, McFarley stated that Masterson could not
engage in productive work because of his ru-
minations, psychological problems, and severe
interpersonal problems. McFarley diagnosed
PTSD and recurrent, moderate major de-
pressive disorder. McFarley also stated that
Masterson was not malingering and that he
was “currently completely disabled by the
psychological and emotional effects of his
combat experience.”
The Appeals Council concluded that Mc-
Farley’s report did not justify a review of the
ALJ’s decision on the merits, much less a re-
versal of the ALJ’s decision. The ALJ’s de-
cision thus became the Commissioner’s final
and official decision when the Appeals Council

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denied Masterson’s request for review on the
merits. Masterson sought judicial review of
the ALJ’s decision in the district court on
February 15, 2000.
II.
A.
A claimant bears the burden of proving that
he suffers from a disability, which the Social
Security Act defines as a medically determ-
inable physical or mental impairment lasting at
least twelve months that prevents the claimant
from engaging in substantial gainful activity.
42 U.S.C. § 423(d)(1)(A); Newton, 209 F.3d
at 452.2 The Commissioner follows a five-step
sequence to evaluate claims of disability:
whether (1) the claimant is currently engaged
in substantial gainful activity, (2) he has a
severe impairment, (3) the impairment meets
or equals the severity of a listed impairment in
Appendix 1 of the regulations, (4) the
impairment prevents the claimant from
performing past relevant work, and (5) the im-
pairment prevents him from doing any other
work. 20 C.F.R. § 404.1520; Newton v. Apfel,
209 F.3d 448, 453 (5th Cir. 2000).
If the claimant satisfies the first four steps
with sufficient proof, the burden of proof shifts
to the Commissioner to show that the claimant
can perform other substantial work in the
national economy. Newton, 209 F.3d at 453;
Chapparro v. Bowen, 815 F.2d 1008, 1010
(5th Cir. 1987). The burden of proof then
returns to the claimant to rebut the Com-
missioner’s showing. Chapparro, 815 F.2d at
1010. A finding that the claimant is not dis-
abled at any step is conclusive and ends the
inquiry. Greenspan v. Shalala, 38 F.3d 232,
235 (5th Cir. 1994).
B.
We review the denial of benefits only to as-
certain whether substantial evidence supports
the final decision and whether the Com-
missioner used the proper legal standards to
evaluate the evidence. See 42 U.S.C.
§ 405(g); Newton, 209 F.3d at 452; Brown v.
Apfel, 192 F.3d 492, 496 (5th Cir. 1999). We
affirm the Commissioner’s findings whenever
supported by substantial evidence. Martinez v.
Chater, 64 F.3d 172, 173. Substantial evi-
dence “is more than a mere scintilla and less
than a preponderance.” Newton, 209 F.3d at
452 (citations omitted). We will not re-weigh
the evidence, try the questions de novo, or
substitute our judgment for the Com-
missioner’s, even if we believe the evidence
weighs against the Commissioner’s decision.
Id. at 452. In short, “[c]onflicts in the evi-
dence are for the Commissioner and not the
courts to resolve.” Id. (citations and internal
alterations omitted).
C.
Masterson challenges the ALJ’s three main
factual findings. According to Masterson, sub-
stantial evidence does not support the ALJ’s
findings that Masterson does not suffer from
PTSD, that he is not otherwise disabled, and
that he had the residual functional capacity to
perform sedentary and light work not
involving exposure to stressful situations or
dealing with the public. We disagree; sub-
stantial evidence supports all three findings.
The ALJ received conflicting evidence on
whether Masterson suffered from PTSD. The
VA originally diagnosed Masterson with
PTSD in October 1992, nearly a year after he
first obtained treatment from the VA. Nemir,
who performed the consultative psychological
2 “Substantial gainful activity” is work activity
involving significant physical or mental abilities for
pay or profit. 20 C.F.R. § 404.1572(a)-(b).

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exam for the Texas Rehabilitation Commission
in January 1995, diagnosed Masterson only
with an unspecified personality disorder.
Moreover, he commented on the VA’s diag-
nosis of PTSD by remarking that if Masterson
had PTSD, it was certainly an “atypical” ver-
sion. Likewise, Berry testified that Masterson
did not suffer from PTSD. Berry admitted
that Masterson might suffer from PTSD, but
only if one took Masterson’s testimony as
true.
The ALJ, though, found Masterson’s testi-
mony less than fully credible. The ALJ care-
fully considered this and other evidence and
concluded that Masterson did not suffer from
PTSD. See Moore v. Sullivan, 919 F.2d 901,
905 (5th Cir. 1990) (stating that ALJ has the
responsibility to resolve conflicting medical
opinions); Chapparro, 815 F.2d at 1011
(stating that ALJ has the responsibility to re-
solve questions of credibility). Given Nemir’s
findings and Berry’s testimony, substantial evi-
dence supports the ALJ’s conclusion that
Masterson did not suffer from PTSD.
The ALJ also concluded that Masterson is
not otherwise disabled, despite finding that he
suffered from a sleep apnea and a personality
disorder. The ALJ found, however, that Mas-
terson’s sleep apnea is well controlled with
medication. Masterson does not challenge this
finding on appeal. Berry testified that
Masterson’s unspecified personality disorder
was not sufficiently severe to qualify for dis-
ability benefits. See 20 C.F.R. Part 404, Sub-
part B, Appendix 1, Listing 12.08 (“Person-
ality Disorders”). Although Berry admitted on
cross-examination that Masterson’s unspeci-
fied personality disorder might qualify under
the listing if one took Masterson’s testimony
as true, the ALJ did not fully credit Master-
son’s testimony. Given Berry’s testimony and
the ALJ’s finding that Masterson was not en-
tirely credible, substantial evidence supports
the ALJ’s conclusion that Masterson was not
otherwise disabled.
Finally, the ALJ concluded that Masterson
had the residual functional capacity to perform
sedentary and light work not involving ex-
posure to stressful situations or dealing with
the public. The ALJ expressly and rightly re-
lied on the testimony of Marion, the vocational
expert, in reaching this conclusion. Vaughn v.
Shalala, 58 F.3d 129, 132 (5th Cir. 1995) (the
ALJ may rely on vocational expert’s
testimony). Masterson offered no contrary
evidence and thus did not satisfy his burden to
prove that he could not perform the kinds of
jobs identified by Marion.
Masterson objects that the ALJ asked
Marion improper hypothetical questions about
Masterson’s abilities, but the record clearly re-
flects that the ALJ scrupulously incorporated
into the hypothetical questions all of
Masterson’s disabilities supported by evidence
and recognized by the ALJ.3 See
3 Masterson relies in part on McFarley’s report
to attack the ALJ’s hypothetical question. Yet,
Masterson did not submit the report to the ALJ at
all; rather, he obtained the report after the ALJ’s
decision and submitted it to the Appeals Council to
support his request for a review of the ALJ’s
decision on the merits. The Appeals Council con-
sidered the report, as it must under 20 C.F.R.
§ 404.970(b), but concluded that the report did not
justify reviewing the case on the merits.
We do not understand what Masterson would
have us do with McFarley’s report. Masterson
might have argued that the court should remand to
the ALJ for reconsideration in light of the report.
See 42 U.S.C. § 405(g); Ripley v. Chater, 67 F.3d
(continued...)

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Boyd v. Apfel, 239 F.3d 698, 707 (5th Cir.
2001). Furthermore, Masterson had the op-
portunity to cross-examine Marion about the
hypothetical questions. Given Marion’s testi-
mony and Masterson’s failure to refute the
testimony, substantial evidence supports the
ALJ’s finding that Masterson could perform
sedentary and light jobs not involving much
stress or public interaction.
AFFIRMED.
3(...continued)
552, 554-55 (5th Cir. 1995). Yet, Masterson does
not request a remand in light of the new evidence,
so he has waived the argument. United States v.
Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000)
(stating that questions not briefed on appeal are
waived).
Alternatively, Masterson might have argued
that we should use McFarley’s report as grounds to
reverse the ALJ’s decision. We have not decided
the question whether new evidence presented to the
Appeals Council for its decision on whether to
review the ALJ’s ruling on the merits but not
presented to the ALJ is part of the record for the
district court to review when the Appeals Council
did not consider the ALJ’s ruling on the merits.
This question has split the circuits. Compare
Matthews v. Apfel, 239 F.3d 589, 593-94 (3d Cir.
2001) (holding that such evidence is not part of the
record for a district court to review); Eads v. Sec’y
of Dep’t of Health & Human Servs., 983 F.2d 815,
817 (7th Cir. 1993) (same); Cotton v. Sullivan, 2
F.3d 692, 695-96 (6th Cir. 1993) (same) with
Perez v. Chater, 77 F.3d 41, 44-45 (2d Cir. 1996)
(holding that such evidence is part of the record for
a district court to review); O’Dell v. Shalala, 44
F.3d 855, 859 (10th Cir. 1994) (same); Keeton v.
Dep’t of Health & Human Servs., 21 F.3d 1064,
1067 (11th Cir. 1994) (same), but see Falge v.
Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998);
Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir.
1993) (same); Nelson v. Sullivan, 966 F.2d 363,
366 (8th Cir. 1992) (same); Wilkins v. Secretary,
Dep’t of Health & Human Servs., 953 F.2d 93, 96
(4th Cir. 1991) (en banc) (same). The First Circuit
adopts neither position and instead reviews the
ALJ’s decision only on the evidence presented to
the ALJ, but reviews the Appeals Council’s deci-
sion to r efuse review when the Council gives an
egregiously mistaken ground for its decision. See
Mills v. Apfel, 244 F.3d 1, 4-5 (1st Cir. 2001).
(continued...)
3(...continued)
Again, however, Masterson does not raise this
argument on appeal; he simply assumes that Mc-
Farley’s report is part of the record for review be-
fore the district court and this court. We are un-
willing to accept this assumption or to decide, with-
out proper briefing, a question that has split the
other circuits. Thibodeaux, 211 F.3d at 912 (5th
Cir. 2000) (opining that questions not briefed on
appeal are waived). Moreover, the report would
not change the outcome of this appeal, because the
report merely diagnoses PTSD after the claim
period and without reference to Masterson’s medi-
cal history during the claim period. Cf. Haywood
v. Sullivan, 888 F.2d 1463, 1471 (5th Cir. 1988)
(holding that diagnoses after the claim period are
immaterial to remand requests). We therefore
reserve the question for another day when properly
presented and briefed.

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