                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

observed,       Myers’    medical      history          contains      only     intermittent

complaints       of    respiratory      problems          and    daytime        drowsiness.


      1
       “A.R.” refers to the administrative record filed as part
of the record on appeal.



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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            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.



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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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