Masterson v. Barnhart

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.

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

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

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).

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...)

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.