UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Thomas James Gillis,

Claimant

v. Civil No. 08-cv-225-SM

Opinion No. 2009 DNH 051

Michael J. Astrue,

Commissioner, Social

Security Administration,

Respondent

O R D E R

Pursuant to 42 U.S.C. § 405(g), claimant, Thomas Gillis,

moves to reverse the Commissioner’s decision denying his

applications for Social Security disability insurance benefits,

or DIB, under Title II of the Social Security Act, 42 U.S.C. §

423, and for supplemental security income, or SSI, under Title

XVI, 42 U.S.C. § 1382. The Commissioner, in turn, moves for an

order affirming his decision. For the reasons given below, the

decision of the Commissioner is affirmed.

Standard of Review

The applicable standard of review in this case provides, in

pertinent part:

The [district] court shall have power to enter, upon

the pleadings and transcript of the record, a judgment

affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without

remanding the cause for a rehearing. The findings of

Case 1:08-cv-00225-SM Document 10 Filed 04/06/09 Page 1 of 23
2

the Commissioner of Social Security as to any fact, if

supported by substantial evidence, shall be conclusive

. . .

42 U.S.C. § 405(g) (setting out the standard of review for DIB

decisions); see also 42 U.S.C. § 1383(c)(3) (establishing §

405(g) as the standard of review for SSI decisions). However,

the court “must uphold a denial of social security . . . benefits

unless ‘the [Commissioner] has committed a legal or factual error

in evaluating a particular claim.’” Manso-Pizarro v. Sec’y of

HHS, 76 F.3d 15, 16 (1st Cir. 1996) (quoting Sullivan v. Hudson,

490 U.S. 877, 885 (1989)).

As for the statutory requirement that the Commissioner’s

findings of fact be supported by substantial evidence, “[t]he

substantial evidence test applies not only to findings of basic

evidentiary facts, but also to inferences and conclusions drawn

from such facts.” Alexandrou v. Sullivan, 764 F. Supp. 916, 917-

18 (S.D.N.Y. 1991) (citing Levine v. Gardner, 360 F.2d 727, 730

(2d Cir. 1966)). In turn, “[s]ubstantial evidence is ‘more than

[a] mere scintilla. It means such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.’” Currier v. Sec’y of HEW, 612 F.2d 594, 597 (1st

Cir. 1980) (quoting Richardson v. Perales, 402 U.S. 389, 401

(1971)). Finally, when determining whether a decision of the

Commissioner is supported by substantial evidence, the court must

Case 1:08-cv-00225-SM Document 10 Filed 04/06/09 Page 2 of 23
1 “It is the responsibility of the [Commissioner] to

determine issues of credibility and to draw inferences from the

record evidence. Indeed, the resolution of conflicts in the

evidence is for the [Commissioner], not the courts.” Irlanda

Ortiz, 955 F.2d at 769 (citations omitted). Moreover, the court

“must uphold the [Commissioner’s] conclusion, even if the record

arguably could justify a different conclusion, so long as it is

supported by substantial evidence.” Tsarelka v. Sec’y of HHS,

842 F.2d 529, 535 (1st Cir. 1988). 

3

“review[] the evidence in the record as a whole.” Irlanda Ortiz

v. Sec’y of HHS, 955 F.2d 765, 769 (1st Cir. 1991) (quoting

Rodriguez v. Sec’y of HHS, 647 F.2d 218, 222 (1st Cir. 1981)).1

Background

The parties have submitted a Joint Statement of Material

Facts (document no. 9). That statement is part of the court’s

record and will be summarized here, rather than repeated in full.

As of his alleged onset date, November 7, 2005, Gillis was

thirty-nine years old. He has a GED and his past relevant work

includes, among other employment, a job at a convenience store.

Beginning with an emergency room visit on August 18, 2005,

Gillis has undergone a course of evaluation and treatment,

including physical therapy, for pain in his neck. He filed the

applications for benefits at issue here on October 28, 2005. On

February 5, 2006, he hit his head on a refrigerator door and

developed a large left frontal and left caudate hemorrhage. 

Case 1:08-cv-00225-SM Document 10 Filed 04/06/09 Page 3 of 23
4

Subsequent testing revealed a large intraparenchyma with

hemorrhage in the left frontal and orbitofrontal regions with

extensions to ventricles, and an absent left P1 and prominent

left posterior communicator.

In the “Work History Report” Gillis filed in conjunction

with his applications for benefits, he indicated that from 2001

through 2004 he held the job title of “stocking shelves/sandwich

mak[ing]” in a convenience store. (Administrative Transcript

(hereinafter “Tr.”) at 54.) He described that job in the

following way: “Cook/Delivery Driver: Cook pizza, make

sandwiches, deliver pizzas & subs, and stock beer & soda cooler.” 

(Id. at 57.) He reported that in that job, he walked for one

hour per day; stood for four hours per day; sat only when

delivering orders (for three hours per day); handled, grabbed, or

grasped big objects for two hours per day; reached for one hour

per day; and wrote, typed, or handled small objects for four

hours per day. (Id.) He also reported that he did no climbing,

stooping, kneeling, crouching, or crawling (id.), and that the

heaviest weight he lifted was twenty pounds and that he

frequently lifted two pounds (id.).

In June, 2006, as part of an agreement in an unrelated

matter, Gillis underwent a psychological evaluation conducted by

Case 1:08-cv-00225-SM Document 10 Filed 04/06/09 Page 4 of 23
5

Dr. Michael Vanaskie. Dr. Vanaskie began his discussion of

Gillis’s mental status by stating that “there were no indications

during the evaluation of any serious psychopathology.” (Tr. at

208). Dr. Vanaskie also noted:

The results of the MCMI-III, a 175-item personality

measure, suggest that Thomas has a distinct tendency

toward avoiding self-disclosure. It is likely that

this tendency is a combination of factors including his

unwillingness to divulge personal issues, problematic

or not, given the use of this assessment, as well as

broad deficits in his introspectiveness and

psychological mindedness. During my conversations with

him, it was clear that Thomas does not think in terms

of his psychological motives or feelings. In addition,

he displayed an extreme attitude regarding an external

locus of control. For Thomas, he feels that he is

acted upon rather than being the responsible party in

many of the difficulties he has faced in the past. The

MCMI-III profile has been modified to account for this

low self-revealing inclination. . . . What we see

from Thomas’ responses is a man who is currently trying

very hard to conform to the expectations of others,

particularly those in authority. . . . 

On the MMPI-II, Thomas’ tendency toward non-self

disclosure was even more pronounced. The MMPI-II is a

567-item personality measure that is widely used in a

variety of mental health settings. It contains several

scales that allow us to look at whether or not the

subject approached this task in an open and

straightforward fashion. What is immediately apparent

is that Thomas denies most of the common human foibles

that beset the large majority of the population. These

fifteen items are generally answered “true” since they

are worded in such a way as to be absolute. By

endorsing these items in the negative direction, Thomas

was saying that he never acts in a way that is contrary

to accepted standards. Most people would acknowledge

that they occasionally break the rules by occasionally

telling a lie or using swear[ ] words. By presenting

himself in such a favorable light, the remainder of the

MMPI-II is highly questionable.

Case 1:08-cv-00225-SM Document 10 Filed 04/06/09 Page 5 of 23
6

. . . [A] more detailed analysis of the MMPI-II

would be open to a great deal of question given the

extreme defensiveness that [Thomas] exhibited in his

responses.

(Id. at 209-10.) In the section titled “Summary and

Recommendations” Dr. Vanaskie wrote:

While this mental health evaluation does not reveal the

presence of any significant psychiatric disorder,

Thomas’ presentation and his history suggest the

presence of a significant personality disorder. By his

history of illegal activity dating back to his middle

adolescence, Thomas would meet the criteria for a

diagnosis of an Antisocial Personality Disorder. His

extreme sense that life acts upon him rather than he

being responsible for his misfortune, is part and

parcel of the difficulties that he has faced in life

and will continue to face in life until he recognizes

how he can manage himself better. Thomas has many

distorted ideas about himself. In his conversations

with me, Thomas displayed many cognitive distortions

that are typical of individuals with his history. . . .

. . . .

The question of whether or not Thomas requires any

mental health counseling is somewhat unclear. On one

hand, he does not have any significant psychopathology. 

While he displays some indications of Depression, this

may in fact be due to his situation rather than some

emotional and long-standing problem. His lack of

psychological mindedness and his tendency to avoid

self-disclosure also clouds the picture as to his true

emotional status at this time. On the other hand, it

is clear that Thomas suffers from significant cognitive

distortions and thinking errors that will continue to

create problems for him as he moves forward in his

life. . . . [H]is interpersonal relationships will

continue to be difficult for him. . . .

. . . .

Case 1:08-cv-00225-SM Document 10 Filed 04/06/09 Page 6 of 23
7

For now, I would not diagnose Thomas with any

mental health disorder other than the aforementioned

Antisocial Personality Disorder by history.

(Id. at 210-11.) A “Psychiatric Review Technique” form 

completed by Dr. Nicholas Kalfas in April 2006 listed the

following “Medical Disposition(s)”: (1) Coexisting Nonmental

Impairment(s) that Requires Referral to Another Medical

Specialty”; and (2) “Insufficient Evidence”. (Id. at 191.)

Regarding Gillis’s ability to perform work-related

activities, in March 2006, Dr. Joseph Cataldo, a non-treating,

non-examining medical source, conducted a Physical Residual

Functional Capacity Assessment in which he determined that Gillis

could: (1) lift and carry up to ten pounds frequently and up

twenty pounds occasionally (Tr. at 184); (2) stand and/or walk

(with normal breaks) for a total of about six hours in an eighthour workday (id.); (3) sit (with normal breaks) for a total of

about six hours in an eight-hour workday (id.); (4) push and/or

pull with no limitation other than that established for lifting

and carrying (id.); (5) climb ramps, stairs, ladders, ropes, and

scaffolds; balance; stoop; kneel; crouch; and crawl occasionally

(id. at 185); (6) perform reaching, handling, fingering, and

feeling without limitation (id. at 186). Dr. Cataldo also

determined that Gillis had no visual, communicative, or

environmental limitations. (Id. at 186-87.) In April 2007,

Case 1:08-cv-00225-SM Document 10 Filed 04/06/09 Page 7 of 23
8

physical therapist Rachel Heath tested Gillis and determined that

he could lift and carry ten pounds frequently and twenty pounds

occasionally; could bend, kneel, squat, climb, stand, walk, sit,

and reach occasionally and could perform fine motor skills

frequently; and was able to return to work, with the

modifications noted, “part-time at 4 hours/day and 5 days/week.” 

(Id. at 268.)

In June 2007, an Administrative Law Judge (“ALJ”) conducted

a hearing at which claimant was not represented by counsel. When

asked by the ALJ to identify his worst medical problem, claimant

stated: “My forgetfulness, short-term memory, that I feel people

take advantage of. . . . I just can’t remember nothing now. I

have to write everything down to keep track, and I was never like

this before. I have mood swings, anger problems now, easily

aggravated.” (Tr. at 354.) Claimant offered no testimony about

his former job in a convenience store, and was asked no questions

about that job by the ALJ. 

After the hearing, the ALJ issued a decision which included

the following findings:

3. The claimant has the following “severe”

impairments: focal mild extrusion C5-6, minimal focal

protrusion at C6-7 without canal stenosis; early

cervical degenerative disc disease; history of February

2006 large anterior L frontal intercranial hemorrhage,

Case 1:08-cv-00225-SM Document 10 Filed 04/06/09 Page 8 of 23
9

cryptogenic; antisocial personality disorder; and

history of substance abuse (20 CFR 404.1520(c) and

416.920(c)).

. . . .

4. The claimant does not have an impairment or

combination of impairments that meets or medically

equals one of the listed impairments in 20 CFR Part

404, Subpart P, Appendix 1 (20 CFR 404.1520(d),

404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

. . . .

5. After careful consideration of the entire record,

the undersigned finds that the claimant has the

residual functional capacity to perform a full range of

unskilled work at the light exertional level so long as

he only occasionally performs postural activities and

does not act in a supervisory capacity. 

. . . .

6. The claimant is capable of performing past relevant

work stocking shelves in a convenience store. This

work does not require the performance of work-related

activities precluded by the claimant’s residual

functional capacity (20 CFR 404.1565 and 416.965).

(Tr. at 22-28.) Based upon the foregoing findings, the ALJ ruled

that Gillis was not under a disability from October 7, 2005,

through the date of the decision, August 20, 2007.

Discussion

According to claimant, the ALJ’s decision should be

reversed, and the case remanded, because the ALJ incorrectly

determined that he was capable of performing his past relevant

work in a convenience store. On that basis, claimant asks the

Case 1:08-cv-00225-SM Document 10 Filed 04/06/09 Page 9 of 23
10

court to remand his claim for further development of the record. 

For his part, the Commissioner asks the court to affirm his

decision that claimant was not disabled because that decision was

supported by substantial evidence.

To be eligible for disability insurance benefits, a person

must: (1) be insured for such benefits; (2) not have reached

retirement age; (3) have filed an application; and (4) be under a

disability. 42 U.S.C. §§ 423(a)(1)(A)-(D). To be eligible for

supplemental security income, a person must be aged, blind, or

disabled, and must meet certain requirements pertaining to income

and assets. 42 U.S.C. § 1382(a). The issue in this case is

whether Gillis was under a disability during the time for which

he sought benefits.

For the purpose of determining eligibility for disability

insurance benefits, 

[t]he term “disability” means . . . inability to engage

in any substantial gainful activity by reason of any

medically determinable physical or mental impairment

which can be expected to result in death or which has

lasted or can be expected to last for a continuous

period of not less than 12 months.

42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(A)

(setting out a similar definition of disability for determining

eligibility for SSI benefits). Moreover,

Case 1:08-cv-00225-SM Document 10 Filed 04/06/09 Page 10 of 23
11

[a]n individual shall be determined to be under a

disability only if his physical or mental impairment or

impairments are of such severity that he is not only

unable to do his previous work but cannot, considering

his age, education, and work experience, engage in any

other kind of substantial gainful work which exists in

the national economy, regardless of whether such work

exists in the immediate area in which he lives, or

whether a specific job vacancy exists for him, or

whether he [she] would be hired if he applied for work.

. . .

42 U.S.C. § 423(d)(2)(A) (pertaining to DIB benefits); see also

42 U.S.C. § 1382c(a)(3)(B) (setting out a similar standard for

determining eligibility for SSI benefits).

In order to determine whether a claimant is disabled for the

purpose of determining eligibility for either DIB or SSI

benefits, the Commissioner is required to employ a five-step

process. See 20 U.S.C. §§ 404.1520 (DIB) and 416.920 (SSI).

The steps are: 1) if the [claimant] is engaged in

substantial gainful work activity, the application is

denied; 2) if the [claimant] does not have, or has not

had within the relevant time period, a severe

impairment or combination of impairments, the

application is denied; 3) if the impairment meets the

conditions for one of the “listed” impairments in the

Social Security regulations, then the application is

granted; 4) if the [claimant’s] “residual functional

capacity” is such that he or she can still perform past

relevant work, then the application is denied; 5) if

the [claimant], given his or her residual functional

capacity, education, work experience, and age, is

unable to do any other work, the application is

granted.

Case 1:08-cv-00225-SM Document 10 Filed 04/06/09 Page 11 of 23
2 Claimant does not appear to challenge the ALJ’s

determination that he had the physical residual functional

capacity to perform a full range of unskilled work at the light

exertional level, so long as he only occasionally performed

postural activities.

12

Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (citing 20

C.F.R. § 416.920). The claimant bears the burden of proving that

he is disabled. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987). 

He must do so by a preponderance of the evidence. See Mandziej

v. Chater, 944 F. Supp. 121, 129 (D.N.H. 1996) (citing Paone v.

Schweiker, 530 F. Supp. 808, 810-11) (D. Mass. 1982)). Finally,

In assessing a disability claim, the [Commissioner]

considers objective and subjective factors, including:

(1) objective medical facts; (2) plaintiff’s subjective

claims of pain and disability as supported by the

testimony of the plaintiff or other witness; and (3)

the plaintiff’s educational background, age, and work

experience.

Mandziej, 944 F. Supp. at 129 (citing Avery v. Sec’y of HHS, 797

F.2d 19, 23 (1st Cir. 1986); Goodermote v. Sec’y of HHS, 690 F.2d

5, 6 (1st Cir. 1982)).

According to claimant, the ALJ erred in making his step-four

determination in two ways: by failing to elicit more evidence

from him concerning his previous convenience store job, and by

failing to call a vocational expert to provide testimony.2 The

Commissioner disagrees.

Case 1:08-cv-00225-SM Document 10 Filed 04/06/09 Page 12 of 23
13

The relevant Social Security regulations describe step four

in the sequential evaluation process in the following way:

At the fourth step, we consider our assessment of

your residual functional capacity and your past

relevant work. If you can still do your past relevant

work, we will find that you are not disabled.

20 C.F.R. § 404.1520(a)(4)(iv). Those regulations continue:

Your impairment(s) must prevent you from doing

your past relevant work. If we cannot make a

determination or decision at the first three steps of

the sequential evaluation process, we will compare our

residual functional capacity assessment . . . with the

physical and mental demands of your past relevant work. 

(See § 1560(b).) If you can still do this kind of

work, we will find that you are not disabled. 

Id. § 404.1520(f). 

Regarding step four, the court of appeals for this circuit

has explained: “At step four the initial burden is on the

claimant to show that [he] can no longer perform [his] former

work because of [his] impairments.” Manso-Pizarro, 76 F.3d at 17

(citing Santiago v. Sec’y of HHS, 944 F.2d 1, 5 (1st Cir. 1991)). 

To meet that burden, a “claimant must initially produce relevant

evidence of the physical and mental demands of [his] prior work.” 

Santiago, 944 F.2d at 5 (citing Pitchard v. Schweiker, 692 F.2d

198, 201 & n.2 (1st Cir. 1982); May v. Bowen, 663 F. Supp. 388,

394 (D. Me. 1987)). The evidence a claimant produces “may be

Case 1:08-cv-00225-SM Document 10 Filed 04/06/09 Page 13 of 23
14

testimonial or take the form of historical or subjective

statements made in the application or other documents provided by

the agency, but claimant must at least furnish some minimal

information about the activities that [his] past usual work

required, including those which can no longer be performed.” 

Santiago, 944 F.2d at 5 (citing May, 663 F. Supp. at 393;

Pelletier v. Sec’y of HEW, 525 F.2d 158, 161 (1st Cir. 1975))

(emphasis added). Then, “[t]he claimant must . . . describe

those impairments or limitations which [he] says [he] has . . .

so as to ‘raise the point to the [Commissioner]’ . . . how

current functional capacity . . . precludes the performance of

the particular prior job.” Santiago, 944 F.2d at 5 (citations

omitted). “In short, not only must the claimant lay the

foundation as to what activities [his] former work entailed, but

[he] must point out (unless obvious) – so as to put in issue –

how [his] functional incapacity renders [him] unable to perform

[his] former usual work.” Id.

After the claimant meets his initial burden, then “the ALJ

must compare the physical and mental demands of [the claimant’s]

past work with current functional capability.” Manso-Pizarro, 76

F.3d at 17 (citing Santiago, 944 F.2d at 5; 20 C.F.R. §

404.1560(b)). “In making a step four appraisal, the ALJ is

entitled to credit a claimant’s own description of [his] former

Case 1:08-cv-00225-SM Document 10 Filed 04/06/09 Page 14 of 23
15

job duties and functional limitations, but has some burden

independently to develop the record.” Manso-Pizarro, 76 F.3d at

17 (citing Santiago, 944 F.2d at 5-6). The ALJ’s duty to develop

the record is only triggered, however, “once alerted by the

record to the presence of an issue.” Santiago, 944 F.2d at 6

(citing May, 663 F. Supp. at 394).

According to claimant, “the ALJ in this case should have

developed the record more fully through testimony from the

claimant in regard to the convenience store job, as well as

calling a Vocational Expert (VE) to give testimony.” In

claimant’s view, Dr. Vanaskie’s report alerted the ALJ to the

presence of an issue, i.e., his mental state, that required the

ALJ to undertake “a more in depth examination of claimant’s job

duties at the convenience store.” Claimant is mistaken, because

he had not carried his “initial burden . . . [of] show[ing] that

[he] can no longer perform [his] former work because of [his]

impairments.” Manso-Pizarro, 76 F.3d at 17.

Claimant’s mental state, standing alone, was not an “issue”

as that concept is described in Santiago. Rather, for a claimant

to raise an issue that triggers an ALJ’s duty to further develop

the record, he must do more than identify a functional

incapacity; he “must point out . . . how [his] functional

Case 1:08-cv-00225-SM Document 10 Filed 04/06/09 Page 15 of 23
3 Claimant also devotes several paragraphs of his memorandum

to a psychological evaluation conducted by Dr. Norman Kinsler

about two months after the ALJ issued his decision. According to

claimant, “Dr. Kinsler’s report certainly confirms and expands

upon the evaluation administered by Dr. M.J. Vanaskie.” That may

or may not be true, but, Dr. Kinsler’s evaluation is of no

moment, as judicial review of the ALJ’s decision must be based

“solely on the evidence presented to the ALJ.” Mills v. Apfel,

244 F.3d 1, 5 (1st Cir. 2001).

16

incapacity renders [him] unable to perform [his] former usual

work.” 944 F.2d at 5.

Here, claimant does not identify anything in Dr. Vanaskie’s

report,3 or in his own description of his mental state, that

should have alerted the ALJ to a need for further inquiry into

his ability to perform his former convenience store job. He

simply does not say how his mental health issues precluded him

from performing that – or any other – job. Put another way, this

record includes neither “statements as to which past work

requirements can no longer be met and the reasons for

[claimant’s] inability to meet those requirements,” Curtis v.

Sullivan, 808 F. Supp. 917, 923 (D.N.H. 1992), nor “medical

evidence establishing how the impairment limits [claimant’s]

ability to meet the physical and mental requirements of the

work,” id. Thus, as in Santiago, “neither claimant’s testimony

nor the other evidence of record goes far enough to raise a

meaningful issue as to [claimant’s] incapacity to perform [his]

prior work.” 944 F.2d at 6.

Case 1:08-cv-00225-SM Document 10 Filed 04/06/09 Page 16 of 23
17

This case is readily distinguishable from May, which

provides a good illustration of what does trigger an ALJ’s duty

to further develop the record. As the judge in that case

explained:

In the present case, plaintiff met her burden of

production by asserting, in the disability report filed

November 11, 1981, that her past jobs “have all been

pressure jobs,” and through the presentation of medical

evidence that she has a long-standing history of

arteriosclerotic vascular disease, which places her at

risk of a major stroke. Although the ALJ did inquire

briefly into plaintiff’s prior work experience, Record

at 30-32, the record discloses neither the requisite

investigation nor the explicit findings as to the

physical and mental demands of her former work

contemplated by 20 C.F.R. § 404.1520(e), as interpreted

by SSR 82-62.

May, 663 F. Supp. at 394. In May, the claimant identified a

medical diagnosis, i.e., a risk of stroke, that was, on its face,

incompatible with an identified element of all of her past

relevant work, i.e., pressure. Here, by contrast, claimant has

identified nothing in his medical and/or mental health records

that would call into question his ability to do his former

convenience store job, as he described that job in his Work

Case 1:08-cv-00225-SM Document 10 Filed 04/06/09 Page 17 of 23
4 Claimant appears to criticize the ALJ for relying solely

on the Work History Report as a source of information about his

convenience store job, but does not challenge the accuracy of the

information reported therein. Moreover, claimant does not

proffer what he would have added to that information had he been

questioned by the ALJ at his hearing, or how any additional

information would have lead the ALJ to conclude that he was

incapable of performing his past relevant work.

18

History Report.4 Thus, claimant has not pointed to any issue

that triggered the ALJ’s duty to further develop the record. 

Finally, while claimant correctly cites Currier for the

proposition that the Commissioner “has certain responsibilities

with regard to the development of the evidence,” 612 F.2d at 598,

the Currier court also stated that it did “not see such

responsibilities arising in run of the mill cases,” id. Like the

claimant in Currier, claimant in this case was unrepresented at

his hearing, see id., but other than that, this case does not

involve the various other “special circumstances,” id., present

in Currier. Those circumstances include the following:

Dr. MacAllister’s opinion upon which the administrative

law judge principally relies, that appellant can work

but at another location, is devoid of any reasoned

analysis of why this man, whom the Air Force found

functionally inadequate and whom Dr. MacAllister

himself indicated was not a malingerer, would be able

to function any more successfully in the future than he

did at his most recent job in the woolen mill. 

Moreover, the only evidence from Dr. MacAllister

consisted of clinical notes. The notes are

unaccompanied by any formal opinion and diagnosis

explaining to what degree and in what respect appellant

may be impaired by his mental illness and relating

Case 1:08-cv-00225-SM Document 10 Filed 04/06/09 Page 18 of 23
19

these deficiencies to the requirements of his former

job and other available jobs. Given the absence of

developed information of this type and given the

otherwise pessimistic picture of appellant’s

potentialities presented by the remaining evidence

including the report of the psychiatric social worker,

we do not think that Dr. MacAllister’s conclusory

reflections as to appellant’s employability, see 20

C.F.R. § 1524(c) (1979), gleaned by the administrative

law judge from Dr. MacAllister’s office notes,

constitute by themselves evidence that a reasonable

mind would find adequate to reach the result arrived at.

Id. at 597. Unlike Currier, this case involves neither

conflicting evidence (with by far the smaller fraction favoring

the ALJ’s decision) nor a claimant who “seems obviously mentally

impaired to some degree, having been found unemployable by [one

employer] and effectively so by [a second employer] and having

been diagnosed as having a non-trivial psychiatric condition.” 

Id. at 598. In comparison with the situation in Currier, in

which the claimant had been discharged from one job because of

the same mental impairment which formed the basis for his

disability claim, and told that he would be fired if he returned

from a leave of absence from a second job, because of that same

mental impairment, see id. at 595, Gillis’s case is, in the words

of Currier, “run of the mill,” id. at 598. Thus, Currier does

not compel a conclusion that the ALJ in this case had a duty to

more fully develop the record.

Case 1:08-cv-00225-SM Document 10 Filed 04/06/09 Page 19 of 23
20

Finally, while perhaps not relevant to the foregoing

analysis, the court notes the ALJ did take claimant’s mental

state into account in making his step-four determination. First,

the ALJ found that claimant had a residual functional capacity

(“RFC”) for only unskilled work, based on his testimony

concerning memory loss. And, in addition, the ALJ found that

claimant did not have the residual functional capacity for

supervision, based on Dr. Vanaskie’s diagnosis of Antisocial

Personality Disorder. Thus, even though claimant never presented

the ALJ with an issue concerning his mental abilities to perform

his convenience store job, the ALJ did consider the limitations

of record and incorporated them into his decision.

Claimant also objects to the ALJ’s failure to solicit the

testimony of a vocational expert, for relying exclusively on his

Work History report rather than soliciting testimony at the

hearing, and for failing to refer to the Dictionary of

Occupational Titles. While it is not particularly clear,

claimant appears to suggest that one or more of those forms of

evidence was necessary to support the ALJ’s determination that

his former convenience store job was unskilled light-duty work he

was capable of performing given his physical and mental RFC. 

Case 1:08-cv-00225-SM Document 10 Filed 04/06/09 Page 20 of 23
21

Claimant’s argument misapprehends the administrative

guidance relevant to making a step-four determination. 

Specifically, claimant appears to argue that the ALJ was required

to compare his residual functional capacity with “not only the

actual functional demands and job duties of [his] past relevant

job, but also the functional demands of the job duties of the

occupation as generally required by employers throughout the

national economy.” That is incorrect. The SSA Program Policy

Statement captioned “Titles II and XVI: A Disability Claimant’s

Capacity to Do Past Relevant Work, in General,” SSR 82-62 (PPS80), 1982 WL 31386 (S.S.A.), which claimant cites in his

memorandum, provides that 

[t]he RFC to meet the physical and mental demands

of jobs a claimant has performed in the past (either

the specific job a claimant performed or the same kind

of work as it is customarily performed throughout the

economy) is generally a sufficient basis for a finding

of “not disabled.” 

Id. at *3 (emphasis added). A second Program Policy Statement,

“Titles II and XVI: Past Relevant Work – The Particular Job or

the Occupation as Generally Performed,” SSR 82-61 (PPS-71), 1982

WL 31387 (S.S.A.) is to similar effect, and provides:

Under sections 404.1520(e) and 416.920(e) of the

regulations, a claimant will be found to be “not

disabled” when it is determined that he or she retains

the RFC to perform:

Case 1:08-cv-00225-SM Document 10 Filed 04/06/09 Page 21 of 23
22

1. The actual functional demands and job duties of

a particular past relevant job; or

2. The functional demands and job duties of the

occupation as generally required by employers

throughout the national economy.

Id. at *2 (emphasis in the original). Where, as here, the ALJ

determined that claimant was able to perform the actual duties of

his former convenience store job, he was under no obligation to

determine whether claimant retained the RFC to perform that job

as it is generally performed in the national economy. 

Accordingly, neither the absence of testimony from a vocational

expert nor the absence of a reference to the Dictionary of

Occupational Titles in the ALJ’s decision is of significance. 

Conclusion

For the reasons given, claimant’s motion to reverse and

remand (document no. 7) is denied, and the Commissioner’s motion

for an order affirming the ALJ’s decision (document no. 8) is

granted. The clerk of the court shall enter judgment in

accordance with this order and close the case.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

April 6, 2009

Case 1:08-cv-00225-SM Document 10 Filed 04/06/09 Page 22 of 23
23

cc: D. Lance Tillinghast, Esq.

Robert J. Rabuck, Esq.

Case 1:08-cv-00225-SM Document 10 Filed 04/06/09 Page 23 of 23