                                                                                 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.”).

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