                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 16-3142
                                     ____________

                             PARIS MARCELLE MYERS,
                                       Appellant

                                           v.

                     COMMISSIONER OF SOCIAL SECURITY
                               ____________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                             (E.D. Pa. No. 2-14-cv-03243)
                     District Judge: Honorable Gene E.K. Pratter
                                    ____________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  December 6, 2016

             Before: FISHER ∗, KRAUSE and MELLOY**, Circuit Judges.

                                 (Filed: April 11, 2017)
                                     ____________

                                      OPINION***
                                     ____________


      ∗
        Honorable D. Michael Fisher, United States Circuit Judge for the Third Circuit,
assumed senior status on February 1, 2017.
      **
          Honorable Michael J. Melloy, Senior Circuit Judge, United States Court of
Appeals for the Eighth Circuit, sitting by designation.
      ***
          This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
MELLOY, Circuit Judge.

       Paris Myers applied for disability insurance benefits and supplemental security

income under Titles II and XVI of the Social Security Act, asserting she was disabled due

to mental impairments. An ALJ denied her application, concluding she suffered from

impairments that did not match or equal impairments listed in Social Security regulations.

The ALJ also determined she retained the residual functional capacity to perform her past

work as an unskilled laundry worker and thus was not disabled. The Appeals Council

denied her request for review, and the District Court affirmed. Because the agency

decision enjoys the support of substantial evidence, we will affirm the judgment of the

District Court.

                                               I.

       Myers, born in 1985, filed a claim for disability benefits, eventually alleging an

amended disability onset date of November 2009. The administrative record includes

treatment records from episodes of inpatient treatment. It also includes treatment notes,

interrogatory responses, and a medical source statement from a psychiatrist who treated

Myers over the course of two years. Several examining and non-examining consulting

psychologists also submitted reports. Statements Myers made to these sources and in her

application materials and testimony before the ALJ include often-inconsistent

descriptions of Myers’s abilities, activities, and limitations.




                                               2
        Myers suffers from sub-average intelligence and a learning disability, and she has

difficulty managing stress and dealing with other people. In addition, she reports

depression, suicidal impulses, and hearing voices encouraging her to do harm to herself

and others. She has a history of treatment related to these issues and generally has

responded positively to therapy and conservative medical treatment. She graduated high

school taking special education classes. Myers earned income from various jobs over or

only slightly below the income level for substantial gainful employment when she was

19–20 and 22–24. Most recently, she worked for approximately 1½ years in a hotel’s

laundry, and she reports losing that job because she called-in sick too frequently. She

reports that she lost earlier jobs, including working food preparation and as a cashier at

fast food restaurants, because she became frustrated with customers and lashed out at

them.

        Based upon this evidence, the ALJ applied the five-step sequential analysis of 20

C.F.R. § 404.1520(a)(4), to assess her entitlement to Social Security benefits. The ALJ

found Myers “not entirely credible” in reference to her self-reported limitations and her

description of the persistence and severity of her symptoms. At step one, the ALJ

determined Myers had not engaged in substantial gainful activity since November 2009.

See 20 C.F.R. § 404.1520(b). At step two, the ALJ determined Myers suffered “severe”

impairments in the form of mild mental retardation, learning disorder, schizophrenia, and

affective disorders. See id. §§ 404.1520(c) and 416.920(c). At step three, however, the

                                             3
ALJ determined Myers did not have an impairment or combination of impairments that

met or medically equaled an impairment listed in 20 C.F.R. Part 404, Subpart P,

Appendix 1. At step four, the ALJ examined evidence of Myers’s abilities and activities

and determined she retained the functional capacity to perform work at all exertional

levels but limited to unskilled, repetitive work with routine tasks in a low stress

environment with no public interaction and limited interaction with bosses and

coworkers. See id. §§ 404.1520(e) and 416.920(e). Finally, the ALJ determined Myers

was not disabled because she was capable of performing her past relevant work as a

laundry worker. See id. §§ 404.1520(f) and 416.920(f).

       On appeal, Myers argues the ALJ misconstrued the step-three standard for

assessing whether she satisfied the requirements of Listing 12.05C, which is used to

determine whether the claimant has an intellectual disability. She also argues the ALJ

reached a conclusion not supported by substantial evidence when assessing her functional

abilities and limitations. Finally, she argues the ALJ erred by not giving controlling

weight to the opinion of her treating psychiatrist who found that she met the requirements

for Listing 12.04 (Affective Disorders). We address these arguments in turn.

                                             II.

       We review the ALJ’s factual findings for substantial evidence on the record as a

whole. 42 U.S.C. § 405(g); Zirnsak v. Colvin, 777 F.3d 607, 610 (3d Cir. 2014).

“Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as

                                              4
adequate to support a conclusion.’” Zirnsak, 777 F.3d at 610 (quoting Rutherford v.

Barnhart, 399 F.3d 546, 552 (3d Cir. 2005)). “It is ‘more than a mere scintilla but may be

somewhat less than a preponderance of the evidence.’” Id. (quoting Rutherford, 399 F.3d

at 552). If the ALJ did not misapply the law, we do not substitute our own judgment for

that of the fact-finder; if substantial evidence supports the ALJ’s decision, we must affirm

even if we would have reached a different conclusion in the first instance. Rutherford,

399 F.3d at 552. We review the district court’s judgment de novo. Zirnsak, 777

F.3d at 611.

                                       A. Listing 12.05

       Step three of the sequential analysis requires a comparison of an applicant’s

condition to an administrative list of recognized impairments. “If the impairment is

equivalent to a listed impairment, then [the claimant] is per se disabled and no further

analysis is necessary.” Burnett v. Comm’r Soc. Sec. Admin., 220 F.3d 112, 119 (3d Cir.

2000). If an applicant does not meet or medically equal one of the listed impairments,

the sequential analysis continues to steps four and five: an examination of the applicant’s

functional abilities and limitations and an assessment of whether she can perform her past

work or other work that exists in the national economy. In short, the listed impairments

of step three are defined at a sufficient degree of severity to permit the agency to skip

steps four and five.




                                              5
          The ALJ addressed several mental-health-related listings below, but Myers’s

argument on appeal focuses primarily on 20 C.F.R. 404, Subpart P, Appendix 1, Listing

12.05C. 1 This listing contains three requirements: a threshold deficit level of “general

intellectual functioning” (“[a] valid verbal, performance, or full scale IQ of 60 through

70”); another “mental impairment imposing an additional and significant work-related

limitation of function”; and “onset of the impairment before age 22.” Id. Myers argues

specifically that the ALJ erred by demanding evidence in the form of a qualifying IQ

score obtained prior to age 22, rather than merely demanding evidence of onset prior to

age 22.



       1
           The listing provides:

       Mental Retardation refers to significantly subaverage general intellectual
       functioning with deficits in adaptive functioning initially manifested during
       the developmental period, i.e., the evidence demonstrates or supports onset
       of the impairment before age 22.
       The required level of severity for this disorder is met when the
       requirements in A, B, C, or D are satisfied.
       ...
       C. A valid verbal, performance, or full scale IQ of 60 through 70 and a
       physical or other mental impairment imposing an additional and significant
       work-related limitation of function.

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05. As noted above, this listing was amended in
2013 to substitute the label “Intellectual Disability.” 78 Fed. Reg. 46499–01 (Aug. 1,
2013). The agency further amended the listing effective January 17, 2017, to substitute
the label “Intellectual Disorder” to avoid confusing use of the term “Disability.” 81 Fed.
Reg. 66138, 66150 (Sept. 26, 2016). The amendments published September 26, 2016,
also reorganize Listing 12.05 to eliminate 12.05C and incorporate its requirements into
other subsections of Listing 12.05. Id. at 66150.
                                              6
       Myers’s argument rests generally on an accurate description of the listing’s

requirements. An applicant must demonstrate both onset prior to age 22 and a qualifying

level of deficit in intellectual functioning. The requirements, however, do not

specifically demand that the applicant produce a valid, qualifying IQ score obtained prior

to the applicant reaching age 22. See Markle v. Barnhart, 324 F.3d 182, 189 (3d Cir.

2003) (“We did not intend . . . listing 12.05 to require intelligence testing . . . during the

developmental period. We have always interpreted [the] word [manifested] to include

the common clinical practice of inferring a diagnosis . . . when the longitudinal history

and evidence of current functioning demonstrate that the impairment existed before the

end of the developmental period.” (quoting Revised Medical Criteria for Evaluating

Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. 50746, 50772 (Aug. 21,

2000))). Simply put, onset prior to age 22 may be demonstrated through other evidence,

whether dating from the claimant’s developmental period or later, so long as that

evidence supports an inference of onset prior to age 22. Id.

       It is not enough, however, that Myers’s argument rests generally on an accurate

description of the requirements because we conclude the ALJ did not run afoul of the

requirements. The ALJ did not conduct a simplistic analysis and artificially impose a

requirement that a valid and qualifying IQ score must exist prior to age 22. Rather, the

ALJ noted Myers’s various scores and other evidence, concluding that evidence of onset

prior to age 22 was lacking. Not surprisingly, the ALJ noted the different ages at which

                                               7
Myers took IQ tests. The ALJ also commented upon the tests and other evidence,

described Myers’s abilities and activities as inconsistent with the listings’ requirements,

and explained her view of the evidence.

       The evidence cited by the ALJ showed that, when Myers received inpatient

psychiatric inpatient treatment at age 14, her diagnosis upon admission stated she was

“significantly mentally retarded.” Mid-treatment, however, physicians labeled her

impairment “moderate.” And upon discharge, her final diagnosis described her condition

as “learning disability, mild mental retardation.” The ALJ specifically noted that no

intellectual testing was performed at that time to establish these diagnoses; rather,

discharge instructions recommended that Myers undergo IQ testing at her school. The

ALJ also observed that Myers’s school did not subsequently conduct any IQ testing and

“the claimant was never treated as ‘mentally retarded’ in the educational system.”

Rather, “the claimant was enrolled in special education and had some poor performance

in school with below basic testing, but the claimant graduated high school.”

       Then, in 2006 at age 21, Myers took an IQ test, scoring 78–89. And later, at age

27, Myers again took an IQ test, scoring 65–79. The ALJ noted that the examiner

administering the test when Myers was 27 stated the results were considered “generally”

valid. The ALJ also noted, however, that the examiner stated Myers “was cooperative

with testing, but easily distracted and easily frustrated. Her attention and concentration

were variable, and diligence and perseverance were poor.” The ALJ reviewed this

                                              8
evidence against the backdrop of a qualitative description of Myers’s activities and

limitations, including the specific finding that Myers did not credibly report the severity

and persistence of her limitations.

       We conclude the ALJ sufficiently explained her conclusions and did not

erroneously demand a qualifying IQ score from Myers’s developmental years. Rather,

the ALJ permissibly discounted the shifting diagnoses at age 14 and the IQ scores at age

27 for reasons supported by the record. Given this analysis, we conclude the ALJ

reached a permissible factual conclusion when she determined that Myers failed to satisfy

the requirements for establishing an intellectual disability under Listing 12.05C. See

Markle, 324 F.3d at 187 (“[A]n ALJ may reject scores that are inconsistent with the

record.”). To the extent Myers advocates for a bright-line rule that would require an ALJ

to wholly discount actual IQ scores obtained prior to age 22 merely because later-

obtained IQ scores from the post-developmental period were lower, we reject her

argument. The fact that the requirements do not demand a qualifying IQ score from

before age 22 does not mean higher scores from that period become immaterial.

                                  B. Additional Arguments

       Myers’s remaining arguments rest upon factual disputes concerning permissible

views of the record, weights the ALJ accorded different experts’ opinions, and the

sufficiency of the ALJ’s discussion of the record. We conclude there were sufficient

inconsistencies in Myers’s self-reports of her activities and limitations to permit the ALJ

                                             9
to discount her testimony as not entirely credible. For example, the ALJ stated Myers

“reported limited activities of daily living, [but] the record shows that she plays

videogames, spends time on the internet, dates frequently, and independently cleans, does

laundry, shops, cooks, manages money, and cares for personal hygiene.” Focusing on

these conclusions, Myers cites several portions of the record seemingly at odds with these

statements. Myers’s own descriptions, as set forth in her self-completed Social Security

Administration Adult Function Report and as reported to her therapist, however, support

the ALJ’s conclusions.

       At the end of the day, the ALJ accepted many of Myers’s claimed limitations

albeit at a lesser degree of severity. The ALJ included these limitations in a residual

functional capacity determination consistent with repetitive unskilled work in a low stress

environment with limited interaction with bosses or coworkers and without public

interaction. This conclusion was consistent with opinions offered by several non-treating

consulting experts: Roslyn Wolberg, Psy. D., who examined Myers in 2006; state

medical expert James Vizza, Psy. D., who reviewed records and completed a residual

functional capacity assessment in 2011; Lori Hart, Ph.D., who examined Myers in 2010;

and John Rohar, Ph.D., who reviewed records and completed a Psychiatric Review

Technique in 2010.

       Myers takes particular issue with the ALJ’s treatment of an opinion from a non-

treating psychologist, Dr. Penny Levin, who examined Myers in 2012. Dr. Levin ranked

                                             10
Myers’s limitations in several work-related areas as “slight” or “moderate” in most

respects but as “marked” in reference to Myers’s ability to interact with the public,

supervisors, or co-workers. The ALJ then discounted the “marked” assessments by Dr.

Levin because Dr. Levin had not defined the term “marked” in her report. Myers argues

this was error because the term “marked” is an administratively defined level of

impairment as would have been known by Dr. Levin. See 20 C.F.R. § 404, Subpart P,

App. 1, 12.00(C). Even assuming Myers is correct as to what Dr. Levin would have

known, the ALJ was not required to accept Dr. Levin’s conclusions wholesale. And in

any event, the ALJ assessed a residual functional capacity that limited interaction with

the public, supervisors, and co-workers.

       Finally, Myers argues the ALJ impermissibly discounted her treating psychiatrist,

Dr. Jiwesh Jha. The ALJ stated:


       Lastly, the record contains interrogatories completed by the claimant’s
       treating psychiatrist and therapist. According to the interrogatories, the
       claimant meets the criteria of listing 12.04 for Affective disorders and she
       has marked limitations in sustained persistence and concentration, social
       interaction, and understanding and memory. Although I considered this
       medical source statement as the opinion of a treating and examining
       medical source, I do not give the findings controlling weight because they
       are not supported by accepted clinical and diagnostic techniques.
       Additionally, the conclusions are inconsistent with other substantial
       evidence of record, including the medical opinions of State agency medical
       consultants and consultative examiners finding the claimant capable of
       performing a range of unskilled work. Further, the findings are inconsistent
       with treatment records showing improvements with medication, and the
       claimant’s activities of daily living including using public transportation,
       going to the pharmacy and paying with her own Access card, using a cell
                                            11
       phone, getting along with and socializing with her housemates, and caring
       independently for personal needs. Lastly, similar to the mental health
       treatment records showing improvements with medication compliance, the
       medical source statement notes that the claimant’s symptoms can be
       managed with medication and outpatient therapy.


       A treating physician’s opinion is entitled to great weight when there is a

substantial longitudinal treatment period, the opinion is well-explained and well-

supported, and the opinion is consistent with other evidence. Brownawell v. Comm’r

Soc. Sec., 554 F.3d 352, 355 (3d Cir. 2008) (“An ALJ should give treating physicians’

reports great weight, especially when their opinions reflect expert judgment based on a

continuing observation of the patient’s condition over a prolonged period of time.”

(quotation marks and citation omitted)). “While contradictory medical evidence is

required for an ALJ to reject a treating physician’s opinion outright, such an opinion may

be afforded ‘more or less weight depending upon the extent to which supporting

explanations are provided.’” Id. (quoting Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.

1999))). As such, if “the opinion of a treating physician conflicts with that of a non-

treating, non-examining physician, the ALJ may choose whom to credit but cannot reject

evidence for no reason or for the wrong reason.” Morales v. Apfel, 225 F.3d 310, 317 (3d

Cir. 2000) (quotation marks and citation omitted).

       We conclude the ALJ permissibly interpreted the interrogatories and treatment

notes from Dr. Jha. The interrogatories conclude Myers satisfies Listing 12.04, but

provide no explanation, merely stating she meets “all” requirements. Further, as noted by
                                             12
the ALJ, the treatment itself was conservative, medication lessened symptoms, and

treatment notes do not support the severity indicated in the interrogatory responses. The

ALJ was not required to accept Dr. Jha’s unadorned conclusions that were inconsistent

with the balance of his treatment notes and the other experts’ views.



       We will affirm the judgment of the district court.




                                            13
