                                                 NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT




                       No. 09-3482




               LA WANDA E. HERRON,
                                Appellant

                            v.

       COMMISSIONER OF SOCIAL SECURITY




      On Appeal from the United States District Court
             for the District of New Jersey
            (D.C. Civil No. 3-08-cv-01417)
          District Judge: Hon. Mary L. Cooper




        Submitted Under Third Circuit LAR 34.1(a)
                     June 29, 2010

Before: SLOVITER, BARRY and HARDIMAN, Circuit Judges

                   (Filed: July 2, 2010)




                        OPINION
SLOVITER, Circuit Judge.

       La Wanda E. Herron (“Herron”) appeals the District Court’s judgment affirming

the Commissioner of Social Security’s denial of her application for disability insurance

benefits. We will affirm.

                                             I.

       Herron was born on July 10, 1971. She completed some college courses but did

not receive a degree. Her past work experience includes employment as a clerk/typist and

school aid. Herron claims disability based on, inter alia, dizziness, migraines, ringing in

the ears, vertigo and nausea due to vestibular dysfunction. She also suffers from

depression and obesity.

       Herron’s application for disability benefits was denied both initially and upon

reconsideration. She then requested a hearing before an Administrative Law Judge

(“ALJ”). On March 3, 2006, the ALJ concluded that although Herron suffered from a

severe impairment, she nonetheless possessed the residual functional capacity to perform

her past relevant work as a clerk and typist and thus was not disabled. After a

supplemental hearing, the ALJ issued a second decision with substantially similar

findings and again concluded that Herron was not eligible for benefits. On December 10,

2007, the Appeals Council denied Herron’s request to review the ALJ’s decision. Herron

then sought review in the District Court, pursuant to 42 U.S.C. § 405(g). On June 24,

2009, the District Court affirmed the Commissioner’s decision. This appeal followed.



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       The Social Security Administration has issued a five-step process to determine

whether an individual is disabled. 20 C.F.R. § 404.1520(a)(4)(i)-(v). In this case, the

ALJ found that (1) Herron is not currently engaged in substantial gainful activity; (2)

Herron has severe impairments of vestibular dysfunction with migraines, depression, and

obesity; (3) but does not have an impairment that meets or is the medical equivalent of the

listed impairments; (4) has the residual functional capacity to perform sedentary work

with at least simple and repetitive tasks; and (5) is capable of performing her former jobs.

Thus, the ALJ concluded that Herron was not disabled and denied benefits.

                                             II.

       The District Court had jurisdiction pursuant to 42 U.S.C. § 405(g), and we have

jurisdiction under 28 U.S.C. § 1291. We must affirm the decision of the ALJ if there is

substantial evidence to support it. Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999).

Substantial evidence is not “a mere scintilla,” but rather “such relevant evidence as a

reasonable mind might accept as adequate.” Burnett v. Comm’r of Soc. Sec., 220 F.3d

112, 118 (3d Cir. 2000) (quoting Plummer, 186 F.3d at 427) (internal quotations omitted).

This is a deferential standard of review. Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429,

431 (3d Cir. 1999).

                                            III.

       On appeal, Herron argues that the District Court’s decision to deny benefits was

not supported by substantial evidence. Specifically, Herron argues that the District Court



                                             3
incorrectly determined that she does not suffer from a listed impairment in step three and

erred in finding that she can perform sedentary work in step four. These arguments are

without merit.

       The ALJ must not “reject evidence for no reason or for the wrong reason,” but

“may choose whom to credit” when considering conflicting evidence. Plummer, 186 F.3d

at 429 (quoting Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993)). An appellate

tribunal may not re-weigh the evidence. Williams v. Sullivan, 970 F.2d 1178, 1182 (3d

Cir. 1992). To support her case, Herron points out that the Social Security Administration

awarded her disability benefits as of February 2008. The fact that she was awarded

benefits subsequently does not mean that she was disabled as of June 2004, the time

period in question here.

       “Disturbance of labyrinthine-vestibular function” is a listed impairment in the

regulations. 20 C.F.R. Part 404, Subpt. P, App. 1, § 2.07. Under the regulation, the

claimant must suffer both “[d]isturbed function of vestibular labyrinth demonstrated by

caloric or other vestibular tests” and “[h]earing loss established by audiometry.” Id. The

ALJ’s finding that Herron did not meet this listing because she did not suffer from

hearing loss was supported by substantial evidence. Both of Herron’s treating physicians

stated that she did not suffer from hearing loss. Although other physicians pointed to

some high frequency nerve hearing loss, Herron had normal hearing through 4000Hz and

100 percent speech discrimination scores. See 20 C.F.R. Part 404, Subpt. P, App. 1, §



                                             4
2.08(A)-(B) (defining hearing loss based on hearing threshold levels up to 2000Hz and

speech discrimination scores of under forty percent). Herron herself denied any hearing

loss during this period. Although there was some evidence that Herron tested positive for

vestibular dysfunction during this time, there was also evidence that other test results

were negative. Thus, the ALJ did not rely on his own credibility judgments or

speculation, but instead based his decision on substantial medical evidence.

       The ALJ’s finding that Herron did not suffer from other listed impairments was

also supported by substantial evidence. There was substantial evidence that Herron’s

depression was not a significant limitation. Her treating physician reported that her

migraines were manageable with medication. Although Herron is obese, there is

substantial evidence that she could perform all activities of daily living and could drive

and care for her children during this time. In support of these findings, Dr. Martin

Fechner offered expert testimony that Herron did not meet any listed impairment.

Therefore, there was substantial evidence from which the ALJ could conclude that Herron

did not suffer from a listed impairment.

       Likewise, there is substantial evidence to support the ALJ’s finding that Herron

was capable of sedentary work. Herron’s treating physician, Dr. Martin Gizzi, indicated

that Herron was unable to work and needed to avoid heights, bending, and stooping. But

Dr. Jan Cavanaugh, a clinical psychologist, stated that Herron was capable of performing

simple to complex tasks and maintaining attention and concentration. And Dr. Fechner



                                              5
testified that Herron had no physical limits except for her vertigo. Therefore, the ALJ

relied on substantial evidence that Herron was capable of certain types of work during

this period.

                                            IV.

       Because there is substantial evidence supporting the ALJ’s denial of benefits to

Herron, we will affirm the District Court’s decision.




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