             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




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

                                                    2
Commission. Masterson reported to Nemir                 expert, and a vocational expert. Masterson
that he was active in Alcoholics Anonymous,             testified that he was forty-seven years old with
that he had a good relationship with his four           a masters degree in accounting. He said he
sons, and that his daily activities included pre-       had difficulty sleeping, headaches, high fre-
paring meals for himself and his son, driving           quency hearing loss, skin problems, sleep ap-
his son to school, doing household chores, vis-         nea, polyps on his colon, and depression. He
iting with acquaintances on the phone, work-            identified an inability to concentrate as the
ing with the computer, engaging in leisure ac-          main reason he could not work. He stated that
tivities, and keeping up with current events            he occasionally experienced chest pain, which
through television and the newspaper. Nemir             medication resolved within one minute.
observed that Masterson was alert and his
affect was appropriate; he saw no signs of                 Masterson also testified that at his last job,
depression or thought disorder.                         he had threatened to assault two persons who
                                                        had said something about the men who died in
   Nemir diagnosed personality disorder, not            Vietnam being losers. He stated that he had
otherwise specified, and sleep disorder. Nemir          begun to hurt people years ago but had been
concluded that if Masterson “has PTSD, it               able to stop and that he had not assaulted any-
certainly is atypical” and that “[w]ith this            one since 1982. He said, however, that he re-
man’s educational background and talent to-             cently had hit his twenty-one-year-old son in
gether with his intelligence, I think the prog-         the side of his head but did not injure him.
nosis for him is fair to good.”
                                                            Masterson stated that he did laundry once
    In June 1995, Robert O’Brien, Ph.D.,                a month, went grocery shopping late, watched
another VA psychotherapist, reported that               television, occasionally watched movies with
Masterson continued to experience recurrent             his son, read, played solitaire on the computer,
combat memories and nightmares and demon-               and attended Alcoholic Anonymous meetings,
strated markedly diminished interest and par-           after which he often would join others for a
ticipation in significant activities. O’Brien           meal. He attended therapy and lunched week-
opined that Masterson had moderate problems             ly with four friends, who were also combat
in performing act ivities of daily living, mod-         veterans.
erate difficulty in maintaining social func-
tioning, and frequent problems with concen-                 Dr. Joe Berry, a psychiatrist with forty-two
tration, persistence, and pace that resulted in a       years of experience, testified as a medical ex-
failure to complete tasks in a timely manner.           pert and noted that the medical records
O’Brien also indicated that Masterson often             showed diagnoses of PTSD, alcohol depen-
failed to start even simple tasks, such as re-          dency, dysthymia, and a personality disorder.
turning phone calls. He assessed chronic                Berry stated that Masterson’s testimony did
PTSD secondary to combat service and                    not sustain a diagnosis of PTSD. He also tes-
wounding in Vietnam, dysthymia secondary to             tified that, based on the medical evidence,
PTSD, guilt, and sense of failure.                      Masterson had slight restrictions on daily
                                                        activities, slight to moderate difficulties in so-
   The ALJ also heard testimony at the hear-            cial functioning, and seldom to often-exper-
ing in June 1996 from Masterson, a medical              ienced deficiencies of concentration. On


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


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

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

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

                                                        7
