UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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. 
4

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