Kenneth P. Myers v. Commissioner of Soc Sec, No. 11-1351 (4th Cir. 2011)
Annotate this CaseCourt Description: Unpublished opinion after submission on briefs: Affirmed
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1351 KENNETH P. MYERS, Plaintiff Appellant, v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 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 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 Dr. Palade opined that use of a 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 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 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 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
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
