Kenneth P. Myers v. Commissioner of Soc Sec

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:10-cv-00069-JPB-JES Copies to all parties and the district court/agency. [998724005].. [11-1351]

Appeal: 11-1351

Document: 25

Date Filed: 11/16/2011

Page: 1 of 7

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

Appeal: 11-1351

Document: 25

Date Filed: 11/16/2011

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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,

653

434

F.3d

650,

(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
reasonable
decision.

evidence;
minds

to

“[w]here

differ,”

we

conflicting
defer

to

evidence
the

allows

Commissioner’s

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
2

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Date Filed: 11/16/2011

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his past relevant work; and (5) if not, whether he could perform
any

other

work

in

the

national

economy.

§§ 404.1520(a)(4), 416.920(a)(4) (2010).

20

C.F.R.

The claimant bears the

burden of proof at steps one through four, but the burden shifts
to the Commissioner at step five.
137, 146 n.5 (1987).

Bowen v. Yuckert, 482 U.S.

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

(“ALJ”) erroneously

found

that

the
his

that

could be successfully treated.
contradicted
failed

to

by

objective

adequately

Administrative
sleep

had

Judge

been

and

He argues the ALJ’s finding is

medical

discuss

apnea

Law

evidence

contradictory

and

that

evidence.

the

ALJ

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
(A.R. 19). 1

periods of sleep during the day.”
observed,
complaints

Myers’
of

medical

respiratory

history

contains

problems

1

and

only

daytime

As the ALJ
intermittent
drowsiness.

“A.R.” refers to the administrative record filed as part
of the record on appeal.

3

Appeal: 11-1351

Document: 25

Dr. Palade

Date Filed: 11/16/2011

opined

that

use

of

a

Page: 4 of 7

BiPAP

machine

would

Myers’ symptoms, and Myers did report feeling better.
no

records

he

returned

to

either

complaining of daytime drowsiness.
nighttime

oxygen

in

November,

evaluated thereafter.
evidence

that

despite

the

he

Palade

or

There are

Dr.

Pearson

Although Myers qualified for
there

is

no

record

he

was

Myers’ hearing testimony was the only

continued

BiPAP

Dr.

control

and

suffering

the

from

addition

of

daytime

drowsiness

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,

his

Myers’

testimony

was

the

4

only

evidence

daytime

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Date Filed: 11/16/2011

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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.”
at *1.

Id.

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

See Owen v. Astrue, 551 F.3d

792, 800 n.3 (8th Cir. 2008) (noting that SSR 82-59 does not
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.
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.

5

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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.

nighttime

pulse

We

oximetry

disagree.
studies

There

without

is

the

no

use

record
of

a

machine with which to compare the nighttime BiPAP study.

of

BiPAP
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

statement
test.

is

the

machine.”

contradicted

by

(A.R.
the

19).

November

He
8

argues

nocturnal

this
BiPAP

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
pulmonary

contends

function

that

testing

the

results

ALJ

failed

indicating

from chronic obstructive pulmonary disease.
the

ALJ

disregarded

the

results
6

because

to

consider

Myers

suffered

Myers notes that
Section

3.00E

of

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Date Filed: 11/16/2011

Page: 7 of 7

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.
support

for

the

proposition

that

the

ALJ

Myers cites no
was

required

to

disregard the guidance of Section 3.00E at steps four and five.
We
agency

decision,

court.
legal
before

conclude
and

that
we

substantial

affirm

the

evidence

judgment

of

supports
the

the

district

We dispense with oral argument because the facts and
contentions
the

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

7