Kenneth P. Myers v. Commissioner of Social Security Administration

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1351
KENNETH P. MYERS,
Plaintiff – Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,
Defendant – Appellee.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. John Preston Bailey,
Chief District Judge. (2:10-cv-00069-JPB-JES)
Submitted: October 27, 2011 Decided: November 16, 2011
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Travis M. Miller, BAILEY, STULTZ, OLDAKER & GREENE, P.L.L.C.,
Weston, West Virginia, for Appellant. Eric P. Kressman,
Regional Chief Counsel, Victor J. Pane, Supervisory Counsel,
Philadelphia, Pennsylvania; William J. Ihlenfeld, II, United
States Attorney, Katie M. Gaughan, Special Assistant United
States Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kenneth P. Myers appeals the district court’s order
affirming the Commissioner of Social Security’s denial of his
application for disability insurance benefits and supplemental
security income. We must uphold the decision to deny benefits
if the decision is supported by substantial evidence and the
correct law was applied. 42 U.S.C. § 405(g) (2006); Johnson v.
Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam).
“Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Johnson, 434 F.3d at 653 (internal quotation marks omitted).
This court does not reweigh evidence or make credibility
determinations in evaluating whether a decision is supported by
substantial evidence; “[w]here conflicting evidence allows
reasonable minds to differ,” we defer to the Commissioner’s
decision. Id.
Myers “bears the burden of proving that he is disabled
within the meaning of the Social Security Act.” English v.
Shalala, 10 F.3d 1080, 1082 (4th Cir. 1993) (citing 42 U.S.C.
§ 423(d)(5) (2006)). The Commissioner uses a five-step process
to evaluate a disability claim, asking, in sequence, whether the
claimant: (1) worked during the alleged period of disability;
(2) had a severe impairment; (3) had an impairment that met or
equaled the severity of a listed impairment; (4) could return to

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his past relevant work; and (5) if not, whether he could perform
any other work in the national economy. 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4) (2010). The claimant bears the
burden of proof at steps one through four, but the burden shifts
to the Commissioner at step five. Bowen v. Yuckert, 482 U.S.
137, 146 n.5 (1987). If a decision regarding disability can be
made at any step of the process, however, the inquiry ceases.
See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
Myers contends that the Administrative Law Judge
(“ALJ”) erroneously found that his sleep apnea had been and
could be successfully treated. He argues the ALJ’s finding is
contradicted by objective medical evidence and that the ALJ
failed to adequately discuss contradictory evidence. Myers
asserts that the ALJ’s decision rests on a finding that he did
not follow prescribed treatment without conducting the requisite
legal analysis to support such a finding.
Substantial evidence supports the ALJ’s conclusion
that Myers “failed to establish a basis for his complaints of
periods of sleep during the day.” (A.R. 19).1
1 “A.R.” refers to the administrative record filed as part
of the record on appeal.
As the ALJ
observed, Myers’ medical history contains only intermittent
complaints of respiratory problems and daytime drowsiness.

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Dr. Palade opined that use of a BiPAP machine would control
Myers’ symptoms, and Myers did report feeling better. There are
no records he returned to either Dr. Palade or Dr. Pearson
complaining of daytime drowsiness. Although Myers qualified for
nighttime oxygen in November, there is no record he was
evaluated thereafter. Myers’ hearing testimony was the only
evidence that he continued suffering from daytime drowsiness
despite the BiPAP and the addition of oxygen. The ALJ
considered Myers’ statements concerning daytime drowsiness but
concluded they were not credible in light of Dr. Palade’s
assessment, the short period of time in which Myers had been
using the BiPAP with oxygen, and Myers’ testimony that he had
not kept the machine in place overnight. Myers bears the burden
of proving that he is disabled, English, 10 F.3d at 1082, and
under the circumstances, we hold that the ALJ’s conclusion that
Myers failed to meet that burden is supported by substantial
evidence.
Further, the ALJ considered Myers’ failure to use the
BiPAP machine correctly in order to determine the credibility of
Myers’ complaints of continued daytime drowsiness. As discussed
above, Myers’ testimony was the only evidence his daytime

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drowsiness persisted despite use of the BiPAP.2 Myers argues
that the ALJ found that he failed to follow prescribed medical
advice but failed to follow the procedures set forth in Social
Security Ruling (“SSR”) 82-59, 1982 WL 31384. However, SSR 82-
59 only applies to “[a]n individual who would otherwise be found
to be under a disability, but who fails without justifiable
cause to follow treatment prescribed by a treating source.” Id.
at *1. Here, the ALJ did not conclude that Myers was disabled
but had failed to follow prescribed treatment, and therefore was
not entitled to benefits. Instead, the ALJ determined that
Myers had not met his burden in establishing disability because
the primary evidence that Myers suffered daytime drowsiness
despite use of a BiPAP machine was his own testimony, which the
ALJ determined was not credible in light of evidence that he was
not using the machine correctly.3
2 Although Dr. Pearson’s letter indicates that Myers’
daytime drowsiness persisted despite the BiPAP, there are no
records of Myers presenting to Dr. Pearson complaining of
daytime drowsiness subsequent to Myers reporting feeling good
after using a CPAP machine.
See Owen v. Astrue, 551 F.3d
792, 800 n.3 (8th Cir. 2008) (noting that SSR 82-59 does not
3 Myers’ contention that the ALJ reached this conclusion by
relying on her own opinion is without merit. Myers points to
the ALJ’s statement that Myers’ smoking affected his ability to
oxygenate his body. However, as we have explained, the ALJ
found Myers was not disabled because Myers had failed to meet
his burden in establishing a disability, not because he failed
to follow prescribed treatment.

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apply where noncompliance is used for purposes of determining
weight of evidence).
Myers argues the pulse oximetry testing contradicts
the ALJ’s conclusion because it shows that Myers’ condition did
not improve even when a BiPAP machine was used in a controlled
testing environment. We disagree. There is no record of
nighttime pulse oximetry studies without the use of a BiPAP
machine with which to compare the nighttime BiPAP study. Myers’
own report of improvement after the August CPAP study indicates
the machine did make a difference. Additionally, there are no
medical records evaluating Myers’ progress on BiPAP with oxygen.
Myers asserts that the ALJ erroneously stated that
Myers “has only been using the BiPAP for a short period of time
and he has failed to document any evaluation of his alleged
problems using the machine.” (A.R. 19). He argues this
statement is contradicted by the November 8 nocturnal BiPAP
test. However, the ALJ’s statement concerns Myers’ testimony
that he could not keep the BiPAP machine in place overnight at
home, not that he was never evaluated while using a BiPAP
machine.
Myers contends that the ALJ failed to consider
pulmonary function testing results indicating Myers suffered
from chronic obstructive pulmonary disease. Myers notes that
the ALJ disregarded the results because Section 3.00E of

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Appendix 1 dictated that the results cannot be considered, but
Myers asserts that the Listings do not apply to consideration of
medical evidence beyond step three.
The test results indicated Myers’ lung age was 124,
but the session quality was graded F. Section 3.02(A) of the
Listings sets forth the criteria a claimant must meet in order
to be found disabled at step three. Section 3.00E outlines the
indicia of reliability that must be present in order for the
results of a test to be considered. The record makes it clear
that Myers’ test results were not reliable. Myers cites no
support for the proposition that the ALJ was required to
disregard the guidance of Section 3.00E at steps four and five.
We conclude that substantial evidence supports the
agency decision, and we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED

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