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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                   United States Court of Appeals

                                      No. 17-11173
                                                                            Fifth Circuit

                                                                          FILED
                                                                   December 4, 2018

LINDA GAIL WINSTON,                                                  Lyle W. Cayce
                                                                          Clerk
              Plaintiff - Appellant

v.

NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL
SECURITY,

              Defendant - Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:16-CV-419


Before JONES, CLEMENT, and SOUTHWICK, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
       Appellant Linda Winston appeals the final decision of the Social Security
Commissioner denying her claim for disability and disability insurance
benefits under Title II of the Social Security Act. After carefully reviewing the
record, we AFFIRM the Commissioner’s decision.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                              BACKGROUND
      According to her application for Social Security disability and disability
insurance (“DI”) benefits, Winston suffers from diabetes, neuropathy, high
blood pressure, arthritis, tendonitis, cataracts, and retinopathy.     She also
struggles with obesity, which exacerbates her health problems. Winston first
applied for disability and DI benefits on November 16, 2012, alleging that her
disability began on May 29, 2008. After her claim was denied, she requested
a hearing before an administrative law judge (“ALJ”) and amended her alleged
onset date from May 29, 2008 to February 22, 2012.          Thus, to establish
eligibility, Winston was required to demonstrate the existence of a qualifying
disability between the dates of February 22, 2012 (the alleged onset date) and
December 31, 2013 (the date her insurance eligibility expired).
      Winston appeared and testified before an ALJ at her requested hearing
on May 5, 2014. A vocational expert also testified. At the time of the hearing,
Winston was 48 years old, weighed approximately 375 pounds, was 5’ 5” tall,
and had a high school education. Her prior employment included working as
a residential director at Edu Care Community Living (i.e., as a program aide)
and as a psychiatric aide.    At the hearing, Winston described her health
problems, including daily “[p]ain in [her] legs and feet and arms,” lower back
trouble, poor eyesight, and medication-induced dizziness and lightheadedness.
As a result of these symptoms, Winston testified: she can only stand in one
place for “about ten minutes” before needing to sit; walk for 15-20 minutes
before needing to stop; sit for 30 minutes before needing to stand because of
pain in her knees; and if she starts to walk too soon after standing, she falls.
Winston also stated that she uses a cane to get around her house and a walker
if going out where she will have to walk longer distances; that she does basic
household tasks like folding laundry and grocery shopping; that in an eight-

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hour day, she probably spends five hours sitting and two hours on her feet; and
that she can lift ten pounds.
     The vocational expert testified after Winston. When asked to assume a
hypothetical individual of Winston’s “age, education and work experience” who
can perform work at a sedentary level; lift up to ten pounds occasionally; stand
and/or walk for a total of two hours and sit for a total of six hours in an eight-
hour day; never climb ladders, ropes, or scaffolds but occasionally climb ramps
and stairs; occasionally balance, stoop, crouch, kneel, or crawl; occasionally lift
overhead; and never be exposed to unprotected heights or hazardous moving
machinery, the expert stated that work exists in the regional and national
economy for such an individual.       The vocational expert also testified that
requiring a cane for ambulation would not affect the availability of work for
such an individual. However, when asked if this same hypothetical individual
could find work in the economy if “allowed to sit or stand alternatively provided
they can maintain either position for 30 minutes, and if they’re off task, they
would be off task less than ten percent,” the vocational expert testified that
there would be far fewer positions for that individual. Such an individual could
still work as an order clerk, dowel inspector, and surveillance system monitor;
however, requiring the use of a cane would eliminate these remaining
positions.
     On September 22, 2014, the ALJ denied Winston’s claim for disability and
DI benefits, concluding that Winston was not disabled during the relevant
period because she had “the residual functional capacity to perform sedentary
work.”   In so concluding, the ALJ evaluated Winston’s alleged symptoms
against the medical evidence in the record and found her credibility lacking.
In her analysis of the medical evidence, the ALJ explicitly discussed the
medical opinions of three physicians: two state agency medical consultants who

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opined that Winston “can perform sedentary exertional work with a few
postural limitations” and Winston’s treating physician 1 who opined that
Winston has a permanent disability. The ALJ assigned “limited weight” to all
three opinions.     The ALJ also implicitly discussed the report of a fourth
physician, Dr. Kelley Davis, who examined Winston at the agency’s request,
by referencing select observations from Dr. Davis’s evaluation throughout her
decision. However, the ALJ did not indicate the weight given to Dr. Davis’s
evaluation nor mention Dr. Davis by name, and did not explain how she
decided which observations from Dr. Davis’s report to credit, as some appeared
favorable to Winston, counseling against denial.
      After her claim was denied, Winston requested review from the Appeals
Council, but the Council denied her request on December 16, 2015, which made
the ALJ’s decision the final decision of the Commissioner. On February 15,
2016, Winston filed a complaint in federal district court to contest the
Commissioner’s decision. The parties consented to proceedings before a United
States Magistrate Judge.           On March 31, 2017, following briefing, the
magistrate judge issued a Memorandum Opinion and Order, affirming the
Commissioner’s decision. The same judge denied Winston’s Rule 59(e) motion
for reconsideration in a written order on August 14, 2017. Winston timely
appealed.
                             STANDARD OF REVIEW
       “On judicial review, the ALJ’s determination that a claimant is not
disabled will be upheld, if the findings of fact upon which it is based are
supported by substantial evidence on the record as a whole, and if it was
reached through the application of proper legal standards.” Loza v. Apfel,



       1The ALJ referred to this individual as “a physician’s assistant,” a characterization
to which Winston fervently objects.
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219 F.3d 378, 389 (5th Cir. 2000). Substantial evidence exists if the record
“yields such evidence as would allow a reasonable mind to accept the
conclusions reached by the ALJ.” Id. at 393. “[I]t must be more than a scintilla,
but it need not be a preponderance.” Anthony v. Sullivan, 954 F.2d 289, 295
(5th Cir. 1992). With substantial evidence review, this court “may not reweigh
the evidence, try the issues de novo, or substitute our judgment for that of the
[Commissioner].” Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). “A
finding of no substantial evidence is appropriate only if no credible evidentiary
choices or medical findings support the decision.”            Harris v. Apfel,
209 F.3d 413, 417 (5th Cir. 2000). By contrast, this court’s review for whether
the Commissioner applied the proper legal standard is a bit more exacting. For
instance, ALJs generally cannot reject a medical opinion without providing an
explanation for that rejection, even if good reasons exist for disregarding the
opinion. Kneeland v. Berryhill, 850 F.3d 749, 759–61 (5th Cir. 2017). Failure
to explain the rejection of a medical opinion justifies a remand. Id. at 762.
                                DISCUSSION
      To be entitled to Social Security disability and DI benefits, an individual
must show that she is “disabled” within the meaning of the Social Security Act.
Leggett v. Chater, 67 F.3d 558, 563–64 (5th Cir. 1995). “Disability is defined
as an ‘inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment’ lasting at least twelve
months.” Kneeland, 850 F.3d at 753 (quoting 42 U.S.C. § 423). To determine
whether a claimant is disabled, the Commissioner adopts “a sequential, five-
step approach,” seeking to ascertain:
   “(1) whether the claimant is presently performing substantial gainful
   activity; (2) whether the claimant has a severe impairment; (3) whether
   the impairment meets or equals a listed impairment; (4) whether the
   impairment prevents the claimant from doing past relevant work; and

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   (5) whether the impairment prevents the claimant from performing any
   other substantial gainful activity.”
Morgan v. Colvin, 803 F.3d 773, 776 (5th Cir. 2015) (citing and paraphrasing
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4)). “[I]f the Commissioner determines
at a prior step that the applicant is or is not disabled, the evaluation process
stops . . . .” Id. “The burden of proof is on the claimant at the first four steps,”
but it “shifts to the Commissioner at the fifth step to establish the existence of
other available substantial gainful employment that a claimant can perform.”
Kneeland, 850 F.3d at 753–54 (quoting Morgan, 803 F.3d at 776 n.1). “If the
Commissioner identifies such employment, the burden shifts back to the
claimant to prove that she could not perform the alternative work identified.”
Id. at 754 (quoting Morgan, 803 F.3d at 776 n.1).
      Between the third and fourth steps, the Commissioner must decide the
claimant’s “residual functional capacity” (“RFC”), which is defined as “the most
the claimant can still do despite his [or her] physical and mental limitations .
. . based on all relevant evidence in the claimant’s record.” Id. (alteration in
original) (internal quotation marks and citations omitted). The Commissioner
must consider all medical opinions contained in the record when making the
RFC determination. Id. at 759 (citing 20 C.F.R. § 404.1527(b)). When medical
opinions in the record conflict, the Commissioner must “weigh the relevant
evidence” and explain her reasons for rejecting one medical opinion as less
credible than another. Id. at 759–60 (internal quotation marks and citation
omitted). Otherwise, the Commissioner commits legal error and any resulting
RFC will not be supported by substantial evidence. Id. at 759 (“Given that
Dr. Bernauer’s opinion is a medical opinion, the ALJ legally erred by rejecting
it without explanation, which resulted in an RFC not based on substantial
evidence.”).


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       On appeal, Winston challenges the Commissioner’s decision that she is
not disabled because she can do sedentary work.                    Specifically, “Winston
contends that she needs at least two accommodations that the RFC finding
denies her: (1) The freedom (at need) to use hand-held support (such as a cane)
to stand (and occasionally to walk), and (2) the option to stand after about 30
minutes of sitting.” Absent such accommodations, if faced with the strain of
working full-time, Winston claims she will fall at an increasing rate. Moreover,
because the vocational expert testified that there are no jobs in the economy
for a hypothetical individual of her age, education, and work experience who
suffers from her symptoms and requires both requested accommodations, the
Commissioner’s failure to grant these accommodations is “of potentially
dispositive significance.”           Winston urges this court to reverse the
Commissioner’s decision on three grounds: (1) the ALJ relied on an outlier
figure in calculating Winston’s obesity and assessing its effects; (2) the ALJ
selectively relied on only unfavorable findings from Dr. Davis’s evaluation and
failed to assign Dr. Davis’s evaluation a weight; and (3) the ALJ did not
evaluate Winston’s fall risk.
 I.    Evaluation of Winston’s Obesity
       In her written decision denying benefits, the ALJ found that Winston “is
5 feet, 5 inches tall and weighs 333 pounds” and “is obese with a body mass
index (BMI) of 55.4.” According to Winston, this 333 lbs. value was taken
directly from Dr. Davis’s medical evaluation and is Winston’s lowest recorded
weight in the relevant period between February 22, 2012 and December 31,
2013. 2 In fact, this recorded weight of 333 lbs. is “lower than all others by
between 44 and 67 pounds.” Winston claims this discrepancy—combined with
Dr. Davis’s statement that Winston was “at her highest weight” at 333 lbs.—


       2   The Commissioner does not contest this characterization.
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should have alerted the ALJ that the value was unreliable. In any case, a
333 lbs. value is a “distant outlier” that cannot suffice as substantial evidence,
especially in view of the conflicting, significantly higher weights recorded both
before and after Winston’s evaluation with Dr. Davis—values the ALJ failed
to discuss.
      Winston further argues that the ALJ’s reliance on this aberrant value
was prejudicial, citing the ALJ’s observations that Winston’s obesity “impairs
[her] ability to perform work-related activity” and “may have exacerbated her
other physical impairments,” and that her doctors “discussed the importance
of exercise and weight loss in order to improve her pain symptoms.” According
to Winston, “[t]here is a direct mathematical relationship between the number
of excess pounds an obese person carries and the force each knee joint is
subjected to during walking.” Thus, by underestimating Winston’s weight by
44 to 67 pounds, the ALJ simultaneously underestimated the severity of
Winston’s pain and seriousness of her fall risk. Winston contends that the
ALJ’s assessment of Winston’s credibility was also damaged by this error. In
her decision, the ALJ was troubled that Winston “complained that her pain
level appears to be increasing” while “the objective findings have not changed”
and “[h]er condition does not show deterioration.” Winston argues that if the
ALJ had considered her range of weights, she would have realized that
Winston’s weight increased from 2009 to 2013, supporting a claim of increased
pain. Claiming there is a “realistic possibility that the ALJ would have reached
a different result” absent this error, Winston requests a remand to the ALJ.
See Prudhomme v. Colvin, 605 F. App’x 250, 254 (5th Cir. 2015).
      In response, the Commissioner does not dispute that the ALJ relied on
an aberrant weight value nor that Winston’s weight was relevant to the ALJ’s
analysis. Instead, the Commissioner argues that “[t]he ALJ properly found

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that during the relevant period, Winston’s obesity did not preclude her ability
to perform a range of sedentary work.” Put simply, “a particular weight does
not correlate to a particular work-related limitation” and “[t]he ALJ properly
focuse[d] on functional limitations, not diagnoses or BMI scores.”                     The
Commissioner also suggests that the ALJ considered Winston’s full weight
range, even though she only noted the 333-lbs. value. For instance, “[t]he ALJ
listened to Winston’s testimony that she weighed 375 pounds at the time of the
hearing (more than four months after the relevant period), but her weight had
fluctuated to as low as 325 pounds” within the past five years. 3 The ALJ also
observed that Winston’s weight had fluctuated during the relevant period in
her decision. Finally, the Commissioner points out that “the ALJ still found
Winston had severe ‘morbid obesity,’” implying that any error from the 333-
lbs. value was harmless.
       This court agrees with the Commissioner. Although the ALJ’s reliance
on Winston’s 333 lbs. weigh-in may not yield the most accurate indication of
the strain on Winston’s body, the ALJ’s decision that Winston can perform
sedentary work was not tied to a specific weight. There is substantial evidence
to support the ALJ’s RFC determination, rendering any error from the 333-lbs.
value harmless. See Harris, 209 F.3d at 417. For instance, before discussing
Winston’s obesity, the ALJ analyzed Winston’s other ailments, such as her
diabetes mellitus, neuropathy, vision impairments, pain, and hypertension. It
was in this context that the ALJ initially expressed skepticism towards
Winston’s credibility, noting that her medical examination results were
repeatedly “within normal limits” and “stable.” It was also in this context that
the ALJ stated that “[t]he claimant’s impairments appeared to have improved.”



       3Dr. Davis’s evaluation also noted that Winston’s obesity is “chronic and worsening,”
arguably alerting the ALJ that the 333-lbs. value was not a fixed weight.
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As the decision progressed, the ALJ recited additional reasons to doubt
Winston’s credibility—again, none of which were connected to Winston’s
weight. The ALJ observed that “[the claimant] alleged chronic pain but her
medications are mostly for diabetes, hypertension, gout, etc.” and that she
“alleges significant limitations in her activities of daily living, yet the overall
evidence indicates she can still perform various activities.” The ALJ cited
findings from medical reports where Winston was noted “to have no
musculoskeletal tenderness,” to have “walk[ed] without assistance,” to have
“denied dizziness or headaches,” and to have “normal” vision, muscle strength,
and grip. The ALJ further remarked that “the claimant appeared for the
hearing with no cane, no walker, no assistive device, and appeared to ambulate
well.”
         Significantly, none of these medical examination results or observations
about Winston’s functional capacity would change if the ALJ substituted the
333-lbs. weight value for a higher one, because none of these bases for
skepticism depend on a numeric value. Instead, they capture Winston’s health
and capabilities at the moment the examination or observation was made,
regardless of her exact weight. In this way, the ALJ appropriately conducted
“an individualized assessment of the impact of obesity on an individual’s
functioning” rather than focusing on the weight itself. See Titles II & XVI:
Evaluation of Obesity, SSR 02-1P, 2002 WL 34686281, at *4 (S.S.A. Sept. 12,
2002). In addition, although there is language in the decision that recognizes
a correlation between obesity and pain, the ALJ did not clearly rely on that
correlation in discrediting Winston’s testimony or concluding that Winston can
perform sedentary work. See Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000)
(“The ALJ’s decision must stand or fall with the reasons set forth in the ALJ’s
decision . . . .”). Absent evidence that the ALJ mistakenly believed Winston’s

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weight was stable at 333 lbs. and that she relied on that belief in reaching her
decision, this court declines to reverse.
II.     Dr. Davis’s Medical Evaluation
        Throughout her decision, the ALJ incorporated findings from Dr. Davis’s
medical evaluation conducted on March 13, 2013, citing statements to support
her conclusion that Winston is not disabled. However, the ALJ did not discuss
other statements in the evaluation that were favorable to Winston’s claims.
On appeal, Winston contends that the ALJ’s treatment of Dr. Davis’s
evaluation violates legal standards governing the use of medical opinions in
RFC determinations because: (1) ALJs are required to give an explanation for
rejecting a medical opinion, especially if it conflicts with the RFC
determination, but the ALJ failed to do so; and (2) federal regulations require
ALJs to assign each medical opinion a weight and explain the reasons for that
weight, but the ALJ did not weigh Dr. Davis’s evaluation, making it difficult
for this court to meaningfully assess the ALJ decision. 4 Cf. Kneeland, 850 F.3d
at 759; Titles II & XVI: Assessing Residual Functional Capacity in Initial
Claims, SSR 96-8P, 1996 WL 374184, at *7 (S.S.A. July 2, 1996);
20 C.F.R. § 404.1527(c)(2).
        For both alleged errors, the threshold question is whether Dr. Davis’s
evaluation is a “medical opinion” within the meaning of the Social Security
Act—because the legal standards allegedly violated apply to medical opinions.
Under the Social Security Act, a “medical opinion” is a “statement” from a
physician, psychologist, or other acceptable medical source that “reflect[s]
judgments about the nature and severity of [the claimant’s] impairment(s),


        4 After Winston’s claim was filed, the Social Security Administration changed its
regulations so that ALJs are no longer required to assign each medical opinion a weight: “For
claims filed on or after March 27, 2017 . . . [w]e will not defer or give any specific evidentiary
weight, including controlling weight, to any medical opinion(s) . . . .” 20 C.F.R. § 404.1520c(a).
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including [her] symptoms, diagnosis and prognosis, what [she] can still do
despite impairment(s), and [her] physical or mental restrictions.” Kneeland,
850 F.3d at 759 (quoting 20 C.F.R. § 404.1527(a)(2)). According to Winston,
Dr. Davis’s evaluation is a medical opinion because it includes “statements . .
. that reflect [Dr. Davis’s] judgments about . . . what [Winston] can still do
despite [her] impairment(s), and [her] physical restrictions.”     In support,
Winston quotes statements from Dr. Davis’s evaluation, such as that
“[Winston] had great difficulty standing and used the furniture and wall for
support,” that “[s]he moved with slow motions,” and that she needed
“assistance to move her right LE [lower extremity] while in seated position.”
In contrast, the Commissioner calls Dr. Davis’s evaluation “a physical
examination” that “diagnosed several physical impairments” but gave no
“opinion” on Winston’s capabilities. The Commissioner casts Winston’s quoted
examples as “mer[e] comments describing Winston’s physical demeanor at the
appointment.”
      Upon reviewing Dr. Davis’s medical evaluation, this court concurs with
the Commissioner. Dr. Davis’s evaluation makes “judgments about the nature
and severity” of Winston’s “symptoms, diagnosis and prognosis,” but it does not
opine on “what [Winston] can still do despite [her] impairment(s), and [her]
physical or mental restrictions.” Cf. 20 C.F.R. § 404.1527(a)(2). Rather, the
evaluation simply outlines Dr. Davis’s diagnoses and observations, leaving
other personnel to draw conclusions about the implications for Winston’s RFC.
In this way, Dr. Davis’s evaluation is distinguishable from the medical opinion
in Kneeland. See 850 F.3d at 759 (“Dr. Bernauer’s opinion meets this definition
as he examined Kneeland, noted observations from that examination, and
opined on her work limitations.”) (emphasis added). Furthermore, the ALJ’s
reliance on Dr. Davis’s evaluation—even exclusively at times—does not

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convert it into a medical opinion for purposes of the Social Security Act. 5 The
ALJ was entitled to rely on the evaluation as a source of evidence, even if it
was not technically a medical opinion. See Loza, 219 F.3d at 393 (“Written
reports by physicians who have examined the claimant setting forth medical
data are admissible in evidence in a disability hearing . . . .”).
         Because the definition of a “medical opinion” requires both an evaluation
of symptoms and an expression of judgment regarding a claimant’s capabilities
and restrictions, Dr. Davis’s report is not a medical opinion within the meaning
of the Social Security Act.        See 20 C.F.R. § 404.1527(a)(2) (using “and” to
connect the definitional phrases). Therefore, the ALJ did not violate any legal
standards specific to medical opinions when she assessed and incorporated the
observations noted in Dr. Davis’s evaluation.
III.     Evaluation of Winston’s Fall Risk
         Finally, Winston argues that the ALJ erred by failing to assess her risk
of falling. Because susceptibility to falling is arguably incompatible with her
RFC determination, Winston claims the ALJ had a duty to explain how her
history of falling factored into the decision. Cf. Titles II & XVI: Assessing
Residual Functional Capacity in Initial Claims, SSR 96-8P, 1996 WL 374184,
at *7 (S.S.A. July 2, 1996) (“The adjudicator must [] explain how any material
inconsistencies or ambiguities in the evidence in the case record were
considered and resolved.”).
         Throughout her briefing, Winston asserts that there is “overwhelming
evidence from treating doctors that she is a ‘fall risk,’” and that her risk of
falling will only increase with the added strain of working full-time. Winston
notes that several observations in Dr. Davis’s evaluation—such as her



       The ALJ cited Dr. Davis’s evaluation for the results of a vision test administered to
         5

Winston and for the 333-lbs. weigh-in value.
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statement that Winston “had great difficulty standing and used the furniture
and wall for support” and that the sensory nerves in her feet are impaired—
lend credence to her fear of falling. However, in her decision, the ALJ never
explicitly discussed Winston’s history of falls or her need for fall precautions.
Winston argues that when there is “conflicting medical evidence” in a disability
case, “[t]he trier of fact has the duty to resolve that conflict.” See Richardson
v. Perales, 402 U.S. 389, 399, 91 S. Ct. 1420, 1426 (1971). Because Winston’s
fall risk is arguably at odds with her RFC determination and the ALJ failed to
recognize that tension, Winston claims the Commissioner’s decision is not
supported by substantial evidence. In any case, Winston claims the ALJ’s
failure to address falling thwarts meaningful judicial review, and she urges
this court to remand “for clarification or further fact-finding.”
      The Commissioner seeks to discredit the medical notations indicating
Winston’s frequent falls as “simply a recitation of Winston’s complaints” to her
physician.   The Commissioner also points out that several of the record
citations provided by Winston are from 2014, which is outside the relevant
timeframe and thus irrelevant for purposes of determining Winston’s RFC.
“Otherwise,” the Commissioner notes, “the record reveals that Winston did not
use assistive devices at any of her appointments,” once more urging this court
to affirm in light of the full record.
      This court concurs with the Commissioner. Although the ALJ did not
expressly use the term “falling” in her RFC assessment, the ALJ clearly
factored Winston’s susceptibility to falling into her decision. For instance, the
ALJ noted that Winston has “difficulty standing” and “report[s] pain symptoms
in the back and legs and has numbness and tingling in the feet,” all of which
contribute to a risk of falling. However, the ALJ did not find these observations
determinative given Winston’s demonstrated ability to “ambulate well”

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without a cane, walker, or other assistive device; her “fairly normal
musculoskeletal examination[s]”; her good muscle strength; and her consistent
denials of “dizziness/lightheadedness, drowsiness, or complaints of medication
side effects” during clinic visits. In view of “the record, read as a whole,” it
cannot be said that the ALJ failed to explain material inconsistencies or that
“a reasonable mind [could not] accept the conclusions reached by the ALJ.” See
Loza, 219 F.3d at 393. Therefore, the RFC determination was supported by
substantial evidence.
                                CONCLUSION
      For the foregoing reasons, we AFFIRM the Commissioner’s decision.




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