Pilgreen v. Astrue ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
In the United States Court of Appeals April 25, 2007
For the Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 06-31104
Summary Calendar
JOHNNY G. PILGREEN,
Plaintiff - Appellant,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
No. 3:05-CV-2154
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Johnny Pilgreen appeals the denial of disability insurance benefits under Title II of
the Social Security Act. He argues that the Administrative Law Judge (ALJ) acted contrary
to law at step five of the sequential evaluation process by posing an improper hypothetical
to the vocational expert. Because we find no error with the ALJ’s hypothetical, we affirm
the Commissioner’s decision.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Pilgreen was diagnosed with idiopathic hypersomnia, a condition that results in long
periods of daytime drowsiness that lead to “micro sleeps” of one to four seconds, during
which he acts in a semi-controlled way. Pilgreen’s condition caused him to lose his job as
a delivery truck driver, due to concerns about his ability to drive his truck safely. He
thereafter sought disability benefits.
At step five of the sequential evaluation process,1 the Commissioner must show that
the claimant is capable of performing work in the national economy and is therefore not
disabled.2 The ALJ solicited testimony from a vocational expert in order to determine
whether a person with Pilgreen’s residual functional capacity is capable of performing work
in the national economy. The ALJ asked whether there was substantial work available for
a person whose condition of idiopathic hypersomnia required that the person avoid
unprotected heights, not climb ladders or stairs, avoid dangerous moving machinery, and not
drive automotive equipment. The vocational expert responded that there are jobs in
substantial numbers in the national economy that a person with such limitations could
perform. The ALJ then posed an additional hypothetical where the person, in addition to the
restrictions related to heights, stairs, ladders, and machinery, would also be unable to comply
with production requirements because of the inability to maintain attention and
concentration. The ALJ responded to this second hypothetical by saying that no jobs would
1
20 C.F.R. §§ 404.1520, 416.920 (2006).
2
Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
2
be available for such a person. The ALJ’s decision credited the first hypothetical and denied
benefits based on the conclusion that Pilgreen was not disabled and could work.
Pilgreen argues on appeal that the ALJ committed reversible error in denying benefits
because he relied on the first hypothetical, which was defective because it did not contain
substantially all of Pilgreen’s limitations. He argues that the second hypothetical more
accurately states his disabilities, and that the vocational expert’s response to the second
hypothetical shows that Pilgreen is entitled to benefits. Hypothetical questions posed to a
vocational expert must include all of the disabilities supported by the evidence and
recognized by the ALJ.3 It is clear from the ALJ’s decision that he only recognized the
disabilities posed in the first hypothetical, namely, that Pilgreen’s idiopathic hypersomnia
prevents him from climbing stairs or ladders, driving automotive equipment, working around
dangerous moving machinery, and working at unprotected heights. The ALJ did not
recognize any other disabilities causing impaired work performance or an inability to
maintain attention and concentration. Both of these determinations are supported by
substantial evidence.
Pilgreen testified at his hearing that his condition results in three to four daytime sleep
attacks per week. Despite these attacks, Pilgreen does not engage in any bizarre behavior.
He is able to and does perform various household chores. He attends church, goes shopping,
watches television, and visits with friends and family. The relevant medical evidence
3
See Bowling v. Shalala, 36 F.3d 431, 436 (5th Cir. 1994).
3
consists primarily of treatment records from Pilgreen’s treating physician, Dr. Thompson.
The records indicate that Pilgreen responded to medication, was doing “well,” and did not
have signs of excessive sleepiness. His Epworth Sleepiness Scale was 2 out of 21, with 12
or greater being considered excessive sleepiness. Dr. Thompson did recommend, however,
that Pilgreen avoid heights, as well as using machinery or ladders. The ALJ’s first
hypothetical is consistent with this substantial evidence.
Pilgreen points to other evidence from a scholarly article indicating that idiopathic
hypersomnia is a very disabling illness that often causes patients to continue to function in
an unplanned and often inappropriate way during drowsiness and microsleep periods. As
the district court notes, however, this evidence speaks to the condition of idiopathic
hypersomnia generally, and does not constitute objective evidence of Pilgreen’s specific
condition and disability.
The Commissioner’s decision is supported by substantial evidence and the
Commissioner used the proper legal standards to evaluate the evidence.4 We AFFIRM.
4
See Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000) (“The federal courts review the
Commissioner’s denial of social security benefits only to ascertain whether (1) the final decision is
supported by substantial evidence and (2) whether the Commissioner used the proper legal standards
to evaluate the evidence.”).
4