Gillis v . SSA 08-CV-225-SM 04/06/09
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Thomas James Gillis,
Claimant
v. Civil N o . 08-cv-225-SM
Opinion N o . 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 S S I , 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
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 1 5 , 16 (1st Cir. 1996) (quoting Sullivan v . Hudson,
490 U.S. 8 7 7 , 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 7 2 7 , 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 5 9 4 , 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
2
“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 2 1 8 , 222 (1st Cir. 1981)). 1
Background
The parties have submitted a Joint Statement of Material
Facts (document n o . 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 1 8 , 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 2 8 , 2005. On
February 5 , 2006, he hit his head on a refrigerator door and
developed a large left frontal and left caudate hemorrhage.
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
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 d a y ) ; 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 ( i d . ) , and that the
heaviest weight he lifted was twenty pounds and that he
frequently lifted two pounds ( i d . ) .
In June, 2006, as part of an agreement in an unrelated
matter, Gillis underwent a psychological evaluation conducted by
4
Dr. Michael Vanaskie. D r . 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). D r . 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.
5
. . . [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” D r . 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 m e , 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. . . .
6
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 D r . 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, D r . 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 1 8 4 ) ; (2) stand and/or walk
(with normal breaks) for a total of about six hours in an eight-
hour workday ( i d . ) ; (3) sit (with normal breaks) for a total of
about six hours in an eight-hour workday ( i d . ) ; (4) push and/or
pull with no limitation other than that established for lifting
and carrying ( i d . ) ; (5) climb ramps, stairs, ladders, ropes, and
scaffolds; balance; stoop; kneel; crouch; and crawl occasionally
(id. at 1 8 5 ) ; (6) perform reaching, handling, fingering, and
feeling without limitation (id. at 1 8 6 ) . D r . Cataldo also
determined that Gillis had no visual, communicative, or
environmental limitations. (Id. at 186-87.) In April 2007,
7
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 o f . . . . 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,
8
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 2 0 , 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
9
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,
10
[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.
11
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. 1 3 7 , 146 (1987).
He must do so by a preponderance of the evidence. See Mandziej
v . Chater,
944 F. Supp. 1 2 1 , 129 (D.N.H. 1996) (citing Paone v .
Schweiker,
530 F. Supp. 8 0 8 , 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 1 9 , 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.
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
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. 3 8 8 ,
394 (D. M e . 1987)). The evidence a claimant produces “may be
13
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 1 5 8 , 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
14
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 3 9 4 ) .
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, D r . 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 1 7 .
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
15
incapacity renders [him] unable to perform [his] former usual
work.” 944 F.2d at 5 .
Here, claimant does not identify anything in D r . 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. 9 1 7 , 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.
3
Claimant also devotes several paragraphs of his memorandum
to a psychological evaluation conducted by D r . 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 D r . M.J. Vanaskie.” That may
or may not be true, but, D r . 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
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 1 1 , 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
17
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 5 9 8 ,
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 D r . 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 D r . 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
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
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 D r . MacAllister’s conclusory
reflections as to appellant’s employability, see 20
C.F.R. § 1524(c) (1979), gleaned by the administrative
law judge from D r . MacAllister’s office notes,
constitute by themselves evidence that a reasonable
mind would find adequate to reach the result arrived a t .
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 i s , 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.
19
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 D r . 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.
20
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 (PPS-
8 0 ) , 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:
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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
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cc: D. Lance Tillinghast, Esq.
Robert J. Rabuck, Esq.
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