Zahraei v. Colvin

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 18 Report and Recommendations, The recommendation of the Magistrate Judge is ACCEPTED, and the decision of the Commissioner is AFFIRMED. The Clerk is instructed to enter a judgment on behalf of Defendant and to close this case. Signed by Judge Xavier Rodriguez. (wg)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
AMINEH ZAHRAEI,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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ORDER ON MAGISTRATE JUDGE’S REPORT & RECOMMENDATION
On this date, the Court considered the Report and Recommendation filed by the
Magistrate Judge (Docket Entry No. 18), and Plaintiff’s objections thereto (Docket Entry No.
19), concerning Plaintiff’s appeal of the Commissioner’s decision to deny her Social Security
disability benefits. After careful consideration, the Court ACCEPTS the Magistrate Judge’s
recommendation to affirm the Commissioner’s denial of benefits.
Introduction
Plaintiff Amineh Zahraei seeks review and reversal of the determination by the
Commission that Zahraei is not disabled and thus not entitled to receive disability and
supplemental security income (“SSI”) benefits. Zahraei contends that the Administrative Law
Judge (“ALJ”) erred by 1) failing to properly execute step three of the sequential-evaluation
process regarding Plaintiff’s mental impairments, and 2) by finding that there was substantial
evidence in the record to conclude that the Plaintiff’s residual functional capacity (“RFC”)
allowed her to work, especially after the ALJ improperly relied on the medical opinions of non-

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treating, non-examining consultative experts in his RFC determination. Zahraei asks the Court to
reverse and remand the decision for further proceedings on the issues presented.
Jurisdiction
This Court has jurisdiction to review the Commissioner’s final decision as provided by
42 U.S.C. § 405(g).
Background
Plaintiff Amineh Zahraei filed her application for SSI on December 19, 2012, alleging
that her disability began on October 29, 2012. Tr. 152-53, 163. Plaintiff is a 52-year-old Iranian
refugee who came to the United States approximately four or five years ago to escape religious
persecution. Tr. 30, 69. Plaintiff speaks Farsi and is unable to speak, write, or read English. Tr.
30, 69. Plaintiff obtained the equivalent of a 10th grade education while living in Iran. Tr. 30, 43,
69. Plaintiff has never previously worked outside of the home. Tr. 30. Plaintiff’s impairments
include degenerative disc disease of the lumbar spine, bilateral degenerative joint disease of the
knees, obesity, depression anxiety disorder, posttraumatic stress disorder, and psychosis. Tr. 20.
Plaintiff’s application for SSI was denied initially on March 8, 2013, and denied again on
reconsideration on June 12, 2013. Tr. 18.
After the denial of her claim, Plaintiff requested an administrative hearing. Tr. 18.
Plaintiff and her attorney attended the administrative hearing before ALJ Robert M. McPhail on
October 16, 2014. Tr. 18. Plaintiff testified at the hearing through a Farsi interpreter. Tr. 18. A
vocational expert (“VE”), Donald R. Marth, Ph.D., also testified. Tr. 18.
The ALJ issued an unfavorable decision on December 16, 2014. Tr. 18-32. The ALJ
applied the five-step sequential analysis required by SSA regulations. Tr. 18-32. At step one, the
ALJ found Plaintiff had not engaged in any substantial gainful activity since December 19, 2012,

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the date of her application. Tr. 20. At step two, the ALJ found Plaintiff had severe impairments,
including degenerative disc disease of the lumbar spine, bilateral degenerative joint disease of
the knees, obesity, depression, anxiety disorder, posttraumatic stress disorder, and psychosis. Tr.
20. At step three, the ALJ found that none of Plaintiff’s impairments or combination of
impairments met or equaled the severity of one of the listed impairments in the Social Security
regulations, specifically Listings 1.02 (major dysfunction of a joint), 1.04 (disorders of the
spine), 12.04 (affective disorders), and 12.06 (anxiety disorders). Tr. 20-23.
Before reaching the fourth step of the analysis, the ALJ found Plaintiff had the RFC to
perform light work. Tr. 23-30. Specifically, the ALJ found Plaintiff could lift 20 pounds
occasionally and 10 pounds frequently; stand or walk for 6 hours in a 8-hour workday; sit for a
total of 6 hours in a 8-hour workday; never work around ropes, ladders, or scaffolds;
occasionally climb, stoop, kneel, crouch, and crawl; understand, remember, and carryout simple
instructions; use her judgment; respond to supervision, coworkers, and usual work situations;
deal with changes in a simple routine work setting; have occasional contract with the public; and
should have no forced-pace work, such as an assembly line. Tr. 23-24.
At step four, the ALJ found Plaintiff had no past relevant work and, therefore, could not
apply the RFC to her past work. Tr. 30. Finally, after considering Plaintiff’s age, education, work
experience, and RFC, and the testimony of the VE, the ALJ found that plaintiff was capable of
performing three jobs that are abundant in the national economy: 1) Assembler of Small
Products; 2) Folder in Laundry; and 3) Mexican Food Maker by Hand. Tr. 30-31. Furthermore,
the ALJ found, based on the VE’s testimony, that Plaintiff’s inability to speak, read, or write
English reduced the number of available jobs by two-thirds. Tr. 30-31. The ALJ found this still
left a significant number of jobs available in the three job categories. Tr. 30-31. Consequently,

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the ALJ determined Plaintiff was not disabled for purposes of the Act and not entitled to receive
SSI. Tr. 31.
Plaintiff requested a review of the ALJ’s decision, but her request was denied by the
Appeals Council on March 29, 2016. Tr. 1-5. On April 26, 2016, Plaintiff filed the instant case,
seeking review of the administrative determination. The case was referred to Magistrate Judge
Elizabeth Chestney, who filed her Report and Recommendation on May 8, 2017. Magistrate
Judge Chestney found that substantial evidence supported the Commissioner’s decision to deny
Plaintiff SSI. Report and Recommendation of the U.S. Magistrate Judge, May 8, 2017 (Docket
Entry No. 18), page 1. Plaintiff filed her objection to the report on May 22, 2017. This Court
will now conduct a review of Judge Chestney’s Report and Recommendations.
Governing Legal Standards
I. Magistrate Judge Review
Where a party has objected to the Magistrate Judge’s Memorandum and
Recommendation, the Court conducts a de novo review. See 28 U.S.C. § 636(b)(1) (West 2009);
United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989). Petitioner has objected to the
recommendation, so the Court will conduct a de novo review.
II. Standard of Review
“Any individual, after any final decision of the Commissioner of Social Security made
after a hearing to which he was a party . . . may obtain a review of such decision by a civil
action” in a district court of the United States. 42 U.S.C. § 405(g) (West 2015). Review of the
Commissioner's decision to deny benefits
is limited to determining whether that decision is supported by substantial
evidence and whether the proper legal standards are applied. Substantial evidence
is such relevant evidence as a responsible mind might accept to support a
conclusion. It is more than a mere scintilla and less than a preponderance. A
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finding of no substantial evidence is appropriate only if no credible evidentiary
choices or medical findings support the decision. In applying this standard, we
may not re-weigh the evidence or substitute our judgment for that of the
Commissioner.
Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000) (quoting Ripley v. Chater, 67 F.3d 552, 555
(5th Cir. 1995) and citing Johnson v. Bowen, 864 F.2d 340, 343–44 (5th Cir. 1988)) (footnotes
and quotation marks omitted).
Consequently, this Court must affirm the Commissioner's determination unless it finds
that 1) the ALJ applied an incorrect legal standard, or 2) that the ALJ's determination is not
supported by substantial evidence. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). The Court
weighs four elements of proof in determining if substantial evidence supports the
Commissioner’s determination: 1) the objective medical facts; 2) the diagnoses and opinions of
treating and examining physicians; 3) the claimant’s subjective evidence of pain and disability;
and 4) the claimant’s age, education, and work experience. Martinez v. Chater, 64 F.3d 172, 174
(5th Cir. 1995). Conflicts in the evidence and credibility assessments are for the Commissioner
to resolve. Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000).
III. Social Security Administration Evaluation Process
The Social Security Administration requires that disability claims be evaluated according
to a five-step process. See 20 C.F.R. §§ 404.1520, 416.920 (West 2012). In the first step, the ALJ
evaluates whether the claimant is engaged in substantial gainful activity. Id. “Substantial gainful
activity” means the performance of “work activity involving significant physical or mental
abilities for pay or profit.” Newton, 209 F.3d at 452-53 (citing 20 C.F.R. § 404.1572(a)-(b))
(West 2012). A claimant who is working and engaging in substantial gainful activity will not be
found to be disabled regardless of her medical condition, or her age, education, and work
experience. 20 C.F.R. § 404.1520(b) (West 2012).
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In the second step, the ALJ evaluates whether the claimant has a medically determinable
physical or mental impairment that is severe, or a combination of impairments that is severe. 20
C.F.R. § 404.1520(a)(4)(ii) (West 2012); Stone v. Heckler, 752 F.2d 1099, 1100-01 (5th Cir.
1985). An impairment can be considered as not severe only if it is a slight abnormality having
such minimal effect on the individual that it would not be expected to interfere with the
individual’s ability to work, irrespective of age, education, or work experience. See Stone, 752
F.2d at 1101. An individual who does not have a severe impairment will not be found to be
disabled. 20 C.F.R. § 404.1520(c) (West 2012).
In the third step, the ALJ evaluates whether the claimant has an impairment that meets or
is medically equal to the criteria of the listed impairments in Appendix 1 (“the Listings”) of the
regulations. 20 C.F.R. § 404.1520(a)(4)(iii) (West 2012). If the ALJ finds claimant’s impairment
meets or is equal to the criteria, she will be considered disabled without consideration of her age,
education, or work experience. 20 C.F.R. § 404.1520(d) (West 2012). The evaluation continues
to the fourth step if the claimant does not qualify under the Listings. 20 C.F.R. § 404.1520(e)
(West 2012). However, before going on to the fourth step, the ALJ evaluates the claimant’s
residual functional capacity. Perez v. Barnhart, 415 F.3d 457, 461-62 (5th Cir. 2005). The RFC
is a multidimensional description of the work-related abilities that the claimant still has despite
any medical impairment. 20 C.F.R. § 404.1545(a)(1) (West 2012); Perez, 415 F.3d at 461-62.
Under the fourth step, the ALJ applies the RFC assessment to the claimant’s past relevant
work. 20 C.F.R. § 404.1520(f) (West 2012). If the claimant is able to perform the work she has
done in the past, then a finding of “not disabled” will be made. 20 C.F.R. § 404.1520(a)(4)(iv)
(West 2012). However, if the claimant’s impairment prevents her from performing her past
work, the ALJ goes on to the fifth step to determine whether the impairment prevents her from

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performing other work. 20 C.F.R. § 404.1520(g)(1) (West 2012). The ALJ looks to the
claimant’s age, education, and work experience to determine whether she is able to perform other
work. 20 C.F.R. § 404.1520(a)(4)(v) (West 2012). If the claimant is unable to perform other
work, she will be found to be disabled. Id.
Analysis
Plaintiff argues the ALJ committed two errors in her case: 1) failing to properly execute
step three of the sequential-evaluation process regarding Plaintiff’s mental impairments; and 2)
finding that there was substantial evidence in the record to conclude that the Plaintiff’s RFC
allowed her to work, especially after the ALJ improperly relied on the medical opinions of nontreating, non-examining consultative experts in his RFC determination. Pl.’s Objection to Report
and Recommendation of the U.S. Magistrate Judge, May 22, 2017 (Docket Entry No. 19), page
2. Magistrate Judge Chestney found: 1) the ALJ did not commit a procedural error during the
step-three analysis that affected Plaintiff’s substantial rights; and 2) the ALJ’s RFC
determination was properly supported by substantial evidence. This Court agrees.
A.

Step Three Analysis
Plaintiff claims the ALJ failed to properly execute step three of the evaluation process.

Specifically, plaintiff argues the ALJ ignored both Listing 12.03 and the side effects of Plaintiff’s
medication; the ALJ did not have a health expert testify at the hearing; and the ALJ improperly
weighed the mental health experts’ opinions in the Paragraph B analysis.
1. Failure to Assess Medication Side Effects
Plaintiff claims the ALJ’s failure to consider Plaintiff’s medication side effects was a
procedural error that requires remand. Specifically, Plaintiff argues the ALJ was required to
consider the “type, dosage, effectiveness, and side effects of any medication the individual takes

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or has taken to alleviate pain or other symptoms.” Pl.’s Objection at 3. Magistrate Judge
Elizabeth Chestney found the ALJ was not required to elaborate on the side effects. This Court
agrees with Judge Chestney.
Social Security Ruling (SSR) 96-7p (which was still in effect at the time of the ALJ’s
decision) states the ALJ must consider the “type, dosage, effectiveness, and side effects of any
medication the individual takes or has taken to alleviate pain or other symptoms” when
evaluating a claimant’s credibility. A review of the medical records in this case reveals one
instance in which any side effect of Plaintiff’s medication is mentioned. The medical records in
this case contain “Follow-Up Notes” from Plaintiff’s visits with her treating psychiatrist to
evaluate whether her psychiatric medication needed to be changed. Tr. 321-26, 341-45, 430-32,
442-50. The only recorded evidence of side effects that Plaintiff has identified is a note by Dr.
Troiano from Plaintiff’s June 2, 2014 visit, which states that the sertraline prescribed to Plaintiff
originally gave her nightmares and increased her sleep talking, but despite an increased dosage,
the side effects decreased. Tr. 448. Plaintiff may have also been on imipramine, trifluroperazine,
klonopin and clonozepambut, but nothing in the record indicates what kind of side effects (if
any) these medications had on Plaintiff. Tr. 321-26, 341-45, 430-32, 442-50. And, nothing in the
record indicates what side effects were listed on each medication’s label. Id.
Although the ALJ did not elaborate on or even mention medication side effects, this
omission does not render the opinion procedurally improper such that remand is warranted. See
Stanton v. Astrue, No. 1:07-cv-215, 2008 WL 2186434, at *2 (D. Vt. May 23, 2008). In Stanton,
the Court found that the ALJ’s failure to consider medication side effects was not reversible
error, because there was no evidence that the side effects prevented the claimant from working.
Id. Similarly, there is no evidence in the record in this case to suggest that the actual or potential

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medication side effects prevented Plaintiff from working. See id. Plaintiff only mentioned
adverse side effects from medication once and even these side effects subsided after the dosage
was increased. Tr. 448. And, there is nothing in the record that indicates that the other
medications Plaintiff was on could cause any potential side effects that would prevent Plaintiff
from working. Tr. 321-26, 341-45, 430-32, 442-50. Consequently, the ALJ did not err in failing
to assess the impact of Plaintiff’s medication on her ability to work, and alternatively any error
has not been shown to be prejudicial.
2. Failure to Have a Medical Expert Present at Administrative Hearing
Plaintiff claims that the ALJ committed reversible error by failing to have a medical
expert present at her administrative hearing. Specifically, Plaintiff argues that the ALJ’s failure
to have a medical expert present at the hearing resulted in the ALJ having to rely on his own
interpretation of psychiatrist Robert Toriano’s notes, without any expert input as to the severity
of Plaintiff’s mental problems. Pl.’s Objection at 3-4. Judge Chestney found that the ALJ was
not required to have a medical expert present to testify at the hearing. This Court agrees.
Dr. Toriano was Plaintiff’s treating physician for mental health, and had diagnosed
Plaintiff with psychosis in April 2013. Pl.’s Objection at 2. In Kneeland v. Berryhill, 850 F.3d
749 (5th Cir. 2017), the Fifth Circuit affirmed that medical opinions from treating physicians
must be considered by the ALJ, and these medical opinions are generally entitled to significant
weight. The Court in Kneeland ultimately remanded the case for further proceedings, based on
the ALJ’s failure to address, or even mention, the opinion of the treating doctor in his written
decision. Id. at 761-62. As Judge Chestney notes, Dr. Deutsch’s assessment of Plaintiff occurred
after Plaintiff received her psychosis diagnosis from Dr. Toriano. Tr. 14. Either way, the ALJ
was not required to have a medical expert present at the hearing. While Kneeland does require

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the ALJ to consider and give significant weight to the treating physician’s medical opinion, it
does not require an ALJ to call upon expert testimony to explain or give insight into that opinion.
See 850 F.3d at 751-62. As Plaintiff notes here, the ALJ has the discretion to call or not call upon
a medical expert at the administrative hearing. Haywood v. Sullivan, 888 F.2d 1463, 1467-68
(5th Cir. 1989). The facts in Haywood are slightly different than those in the present case, but
this does not diminish the ALJ’s discretion to disallow the use of medical expert testimony at the
hearing. The use and consideration of medical expert testimony is solely within the discretion of
the ALJ. Dominguez v. Astrue, 286 F. App'x 182, 186 (5th Cir. 2008).
As the Court determined in Haywood, an ALJ is not required to consult a medical expert
for evaluation of mental RFC evidence, even where new medical evidence is received
subsequent to the last professional evaluation. Haywood, 888 F.2d at 1467-68. The ALJ need
only obtain updated medical equivalency opinion “when additional medical evidence is received
which, in the opinion of the ALJ, may change the determination . . . that the impairment(s) does
not equal the listing.” Id. at 1468 (citing SSR 83–29, reprinted in Social Security Reporting Serv.
Rulings 93 (West Supp. 1989). Again, this gave the ALJ the discretion to determine whether or
not to allow expert medical testimony at Plaintiff’s administrative hearing.
And, unlike in Kneeland, there is evidence in this case that the ALJ both mentioned and
considered Dr. Toriano’s medical opinion in his decision. See 850 F.3d at 761-62. The record
reflects that the ALJ considered all medical evidence in the record. Tr. 20-30. Furthermore, the
ALJ specifically mentioned Dr. Toriano’s opinion, which stated that Plaintiff’s diagnosis was
major depressive disorder and psychotic disorder, and that her medications were imipramine,
trifluroperazine, and klonopin. Tr. 27. The ALJ then stated that Dr. Toriano’s opinion did not
indicate that Plaintiff was disabled or even had limitations greater than those determined in the

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ALJ’s decision. Tr. 30. As a result, the ALJ did not err in failing to have a medical expert
present at the administrative hearing.
3. Failure to Consider Listing 12.03
Plaintiff argues the ALJ applied an incorrect legal standard by not considering Plaintiff’s
psychosis diagnosis under the correct listing. Specially, Plaintiff claims her psychosis should
have been evaluated under Listing 12.03. Pl.’s Objection at 2. Magistrate Judge Chestney found
that the ALJ’s failure to consider whether Plaintiff’s impairment met the criteria for Listing
12.03 was a harmless error. This Court agrees.
At step three of the sequential analysis, the ALJ must identify every Listing that could
apply to the claimant. See Bentley v. Comm’r of the Soc. Sec. Admin., No. 3:10-CV-0032-L,
2011 WL 903455, at *10 (N.D. Tex. Feb. 24, 2011); see also Audler v. Astrue, 501 F.3d 446, 448
(5th Cir. 2007) (“The ALJ did not identify the listed impairment for which Audler's symptoms
fail to qualify, nor did she provide any explanation as to how she reached the conclusion that
Audler's symptoms are insufficiently severe to meet any listed impairment. Such a bare
conclusion is beyond meaningful judicial review.”) (internal quotation omitted). Consequently,
the ALJ erred by failing to consider whether Plaintiff’s impairment met the criteria for disability
under Listing 12.03.
However, “procedural perfection in administrative proceedings is not required,” and the
reviewing court “will not vacate a judgment unless the substantial rights of a party have been
affected.” Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988). The substantial rights of a
claimant have been affected when she is able to meet her burden of demonstrating that her
impairments meet the respective Listing requirements. See Audler, 501 F.3d at 449. In Audler,
the Fifth Circuit held that remand to the Commissioner was necessary because the record

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contained medical reports with undisputed findings that, if accepted by the ALJ, would have met
the criteria for the listing’s requirements. Id. Judge Chestney found this was not the case here,
and this Court agrees.
Listing 12.03 encompasses “Schizophrenic, Paranoid and Other Psychotic Disorders” and
is “[c]haracterized by the onset of psychotic features with deterioration from a previous level of
functioning.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1 § 12.03. The required level of severity for
these disorders is met when the claimant shows that the requirements of both paragraphs A and B
of the listing are satisfied, or when the claimant shows that the requirements in paragraph C of
the listing are satisfied. Id.
Paragraph A requires a showing of a “continuous or intermittent” “[m]edically
documented persistence” of one or more of the following: (1) delusions or hallucinations; (2)
catatonic or other grossly disorganized behavior; or (3) incoherence, loosening of associations,
illogical thinking, or poverty of content of speech if associated with a blunt, flat, or inappropriate
affect or emotional withdrawal and/or isolation. Id. Paragraph B requires a showing of at least
two of the following: (1) marked restriction of activities of daily living; (2) marked difficulties in
maintaining social functioning; (3) marked difficulties in maintaining concentration, persistence,
or pace; or (4) repeated episodes of decompensation, each of extended duration. Id.
Paragraph C requires a showing of the following:
Medically documented history of a chronic schizophrenic, paranoid, or other psychotic
disorder of at least 2 years' duration that has caused more than a minimal limitation of
ability to do basic work activities, with symptoms or signs currently attenuated by
medication or psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment that
even a minimal increase in mental demands or change in the environment would
be predicted to cause the individual to decompensate; or

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3. Current history of 1 or more years' inability to function outside a highly
supportive living arrangement, with an indication of continued need for such an
arrangement.
Id.
Judge Chestney analyzed each of the three paragraphs to determine if there was sufficient
medical evidence in the record for Plaintiff to potentially satisfy Paragraphs A and B, or
Paragraph C. Judge Chestney ultimately determined that there was not sufficient evidence, and
this Court agrees. As a result, Plaintiff cannot demonstrate that she satisfies the requirements of
Listing 12.03, and therefore she is not entitled to remand for consideration of her psychosis
under this listing. See Audler, 501 F.3d at 448. Any error that may have resulted from the ALJ’s
failure to analyze Plaintiff’s psychosis under Listing 12.03 was merely harmless error.
Subsequently, the ALJ did not commit reversible error by failing to consider Plaintiff’s psychosis
diagnosis under Listing 12.03.
4. Failure to Properly Weigh Medical Opinions in Paragraph B Analysis
Plaintiff argues the ALJ committed reversible error by disregarding and dismissing the
medical opinions of Dr. Zumwalt and treating physician Dr. Toriano, and by giving significant
weight to the medical determination of state agency physician Susan Posey, and the
determination on reconsideration of the state agency examiner Connie Deutsch (both of whom
were non-treating and non-examining physicians in this case).
Plaintiff is correct in noting that 20 C.F.R. § 404.1520a(e)(4) requires an ALJ to review a
claimant’s “significant history, including examination and laboratory findings, and the functional
limitations that were considered in reaching a conclusion about the severity of the mental
impairment(s).” Plaintiff claims that the ALJ committed reversible error by failing to explain
why he dismissed numerous telling notes recorded by mental health workers. Pl.’s Objection at
5. For example, the mental health assessments of Dr. Zumwalt that found that Plaintiff could not
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spell a word backwards or count backwards from one hundred by serial sevens or threes, and had
memory problems Tr. 26. That Plaintiff had conversations with herself in her head, bad dreams,
was depressed and anxious in her mood. Tr. 27. That she had a psychotic disorder, and as noted
by Dr. Toriano, would be sleepless and often woke screaming in the night for no apparent
reason. Tr. 341. The records of Dr. Zumwalt also revealed that Plaintiff could not repeat three
unrelated words five minutes after being told them, did not know her home address, could not
remember her mother’s or father’s birthdays, and was unaware of the content of recent news. Tr.
341. Plaintiff was given a Global Assessment of Functioning (GAF) score of 50 by Dr. Zumwalt;
a score of this kind indicates that Plaintiff had significant problems, and there were no
contradictory GAF score in the records. Tr. 279-286.
As Judge Chestney notes, these assessments are significant, and shed light on some of
Plaintiff’s mental difficulties. However, there is no basis for Plaintiff to argue that these
assessments were “dismissed” by the ALJ, or that they were not considered by the ALJ at all.
While Plaintiff argues that the ALJ “cherry picked” medical assessments which supported his
determination while ignoring those that did not, the record reflects that the ALJ took into
consideration all of the psychological evidence in the record. Tr. 20-30. This includes Dr.
Toriano’s treatment notes, as well as the assessments of Dr. Zumwalt. Id. at 26-28. Although the
ALJ must consider all of the evidence in the record, he is not required to elaborate on each and
every piece of evidence in his written opinion. See Falco v. Shalala, 27 F.3d 160, 163 (5th Cir.
1994) (rejecting rule requiring ALJ to specify every rejected and accepted piece of evidence). As
a result, Plaintiff cannot argue that the ALJ dismissed or ignored relevant evidence simply
because he did not elaborate on that evidence in his written opinion. See id.
Judge Chestney notes that the ALJ relied heavily on and gave significant weight to the

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opinions of non-treating and non-examining state doctors Susan Posey and Connie Deutsch. Tr.
10. Despite Plaintiff’s arguments to the contrary, this does not constitute reversible error. While
Kneeland does mandate that a treating physician’s opinion be given significant weight, the
treating physician’s medical opinion is not always controlling, and the medical opinions of other
non-treating physicians can still be given significant weight. See 850 F.3d at 760-61; Zimmerman
v. Astrue, 288 Fed. Appx. 931, 935-36 (5th Cir. 2008). Kneeland cites Newton v. Apfel, 209 F.3d
448 (5th Cir. 1995) for the proposition that a treating physician’s opinion is controlling under
certain circumstances. See Kneeland, 209 F.3d at 760. However, in Zimmerman, the Court
determined that the Newton precedent did not necessarily apply in cases where there is
competing first-hand medical evidence. Zimmerman, 388 Fed. Appx. at 935-36. More
specifically, the Newton precedent does not necessarily apply when there are first-hand medical
opinions by other examining doctors that are not fully consistent with the medical opinions of the
treating physician. Id. Like in Zimmerman and unlike in Newton, there was competing first-hand
medical evidence with respect to Plaintiff’s diagnosis in this case – the medical opinions of
Doctors Posey and Deutsch Tr. 20-30. So, while Dr. Toriano’s medical opinion must be
considered and given significant weight, it does not have to be treated as controlling in light of
competing first-hand medical evidence.
The ALJ could still have given significant weight to Dr. Toriano’s and Dr. Zumwalt’s
opinions while also giving significant weight to the medical determinations of Drs. Posey and
Deutsch. See Kneeland, 209 F.3d at 760-61. The ALJ’s opinion suggests that this is exactly what
occurred. Tr. 23-30. Consequently, the ALJ did not commit reversible error in his weighing of
the competing medical opinions.

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B. RFC Analysis
Plaintiff contends that there was not substantial evidence to support the ALJ’s finding
that Plaintiff’s RFC allowed her to work. Plaintiff also argues once again that the ALJ was not
entitled to rely on the opinions of non-treating, non-examining consultative experts in reaching
this finding.
The RFC determination is “an assessment of an individual’s ability to do sustained workrelated physical and mental activities in a work setting on a regular and continuing basis.” Myers
v. Apfel, 238 F.3d 617, 620 (5th Cir. 2001) (citing SSR 96-8p, 1996 WL 374184, at *1) (S.S.A.
1996). A “regular and continuing basis” means “8 hours a day, for 5 days a week, or an
equivalent work schedule.” Id. (citing 1996 WL 374184, at *2). The RFC assessment is a
“function-by-function assessment based upon all of the relevant evidence of an individual’s
ability to do work-related activities.” Id. (citing 1996 WL 374184, at *3). The RFC assessment
must be “based on all relevant evidence in the claimant’s record,” Perez v. Barnhart, 415 F.3d
457, 462 (5th Cir. 2005), and must “include a resolution of any inconsistencies in the evidence.”
Myers, 238 F.3d at 620. Further, the RFC assessment must include a narrative discussion
describing how the evidence supports each conclusion. Id; SSR 96-8p, 1996 WL 374184, at *7.
RFC determinations are “inherently intertwined with matters of credibility,” and the ALJ’s
credibility determinations are generally entitled to great deference. Acosta v. Astrue, 865 F.
Supp. 2d 767, 790 (W.D. Tex. 2012) (quoting Outlaw v. Astrue, 412 Fed. Appx. 894, 897 (7th
Cir. 2011), and citing Newton v. Apfel, 209 F.3d 448, 459 (5th Cir. 2000) (internal quotation
omitted)).
Plaintiff claims that the ALJ’s review failed to include more than just a summary of the
relevant medical evidence which went into his RFC determination. While it is true that Judge
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Chestney stated that the ALJ “summarized” Plaintiff’s conditions, the ALJ’s analysis is far more
exhaustive than a mere summary. See Tr. 20-31. Ultimately, the ALJ’s written opinion contains
almost a dozen pages of thorough analysis of the medical evidence and its implications. Id. This
detailed analysis includes both physical and medical evidence from numerous sources within the
record. Id.
Furthermore, while the ALJ did label Plaintiff’s disc disease in the lumbar spine, bilateral
degenerative joint disease of the knees, and obesity as “severe impairments,” the ALJ then stated
that Plaintiff did not have an impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 416.920(d), 416.925 and 416.926). Tr. 20. While the ALJ noted that Plaintiff was not
necessarily pain-free, he also noted that “[i]t did not appear that the claimant’s pain was of such
frequency, intensity, or duration as to be disabling.” Tr. 28. The ALJ also noted that “[t]he
evidence of record failed to demonstrate the presence of pathological clinical signs, significant
medical findings, or neurological abnormalities, which would establish the existence of a pattern
of pain of such severity that would contraindicate claimant’s engaging in all substantial gainful
activity.” Tr. 28.
Plaintiff claims that the ALJ failed to point out where in the record it is stated that
Plaintiff can stoop, kneel, crouch, and crawl. The ALJ specifically cites to portions of the record
which state that Plaintiff was able to get on and off the examination table independently, could
bend all the way over and get back up, and could squat and engage in normal range of motion in
her knees. Tr. 25. Stooping, kneeling, crouching, crawling, and climbing should probably be
considered beyond the basic work activities given as examples by the SSA. See 20 C.F.R. §
404.1522(b) (West 2017). However, since there was medical evidence in the record to support
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the ALJ’s finding that Plaintiff could engage in these activities, it follows that this evidence is
enough to support a finding that Plaintiff could engage in more basic work activities.
The ALJ also cited to the RFC determination done by state agency physician Robin
Rosenstock. Tr. 21-22. Dr. Rosenstock’s assessment found that Plaintiff could lift up to 50
pounds and 25 pounds frequently, could stand and/or walk for a total of about 6 hours in an 8hour workday, and could sit for about 6 hours in an 8-hour workday. Tr. 90. Again, the ALJ was
not required to have medical expert testimony present to interpret Dr. Rosenstock’s assessment.
See Dominguez v. Astrue, 286 F. App'x 182, 186 (5th Cir. 2008) (the use and consideration of
medical expert testimony is solely within the discretion of the ALJ).
In addition to her physical capabilities, the ALJ determined that Plaintiff was able to
understand, remember and carry out simple instructions, get along with co-workers and
supervisors, have interactions with the public, deal with changes and perform simple acts of
judgment despite the fact that she had the severe mental impairments of psychosis, depression,
anxiety and post-traumatic stress syndrome. Tr. 23. Once again, the ALJ had the discretion to
give significant weight to the medical opinions of Drs. Deutsch and Posey, as long as he also
gave significant consideration to the opinion of Dr. Toriano. See Kneeland v. Berryhill, 850 F.3d
749, 760-61 (5th Cir. 2017). Judge Chestney found that the ALJ did not commit reversible error,
and that his RFC determination was supported by substantial evidence. This Court agrees.
Conclusion
For the foregoing reasons, the recommendation of the Magistrate Judge is ACCEPTED,
and the decision of the Commissioner is AFFIRMED.

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Plaintiff Amineh Zahraei’s petition to have the Commissioner’s decision reversed and
remanded is DENIED. The Clerk is instructed to enter a judgment on behalf of Defendant and to
close this case.
It is so ORDERED.
SIGNED this 17th day of July, 2017.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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