       [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

          United States Court of Appeals
                      For the First Circuit


No. 02-1474

                         EMERY STEPHENS,

                      Plaintiff, Appellant,

                                v.

              JO ANNE BARNHART, COMMISSIONER OF THE
                 SOCIAL SECURITY ADMINISTRATION,

                       Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Morris E. Lasker, U.S. District Judge]


                              Before

                       Boudin, Chief Judge,
              Torruella and Howard, Circuit Judges.



     Michael James Kelley on brief for appellant.
     Michael J. Sullivan, United States Attorney, Lisa De Soto,
General Counsel, Robert J. Triba, Chief Counsel, Maria A. Machin,
Assistant Regional Counsel, and Rayford A. Farquhar, Assistant U.S.
Attorney, on brief for appellee.



                         November 5, 2002
       Per Curiam.         Emery Stephens appeals from a district court

decision upholding the Commissioner's denial of social security

disability benefits under 42 U.S.C. § 423(d).                    Stephens, a fifty-

five year old man with a tenth grade education, applied for

benefits on June 25, 1996, alleging an inability to work since

December 15, 1995 because of a fractured left ankle.

       After   a    remand     from   the       Appeals      Council    in   1999,     the

Administrative Law Judge ("ALJ") held two hearings, at the second

of which a vocational expert ("VE") testified.                      The ALJ determined

that Stephens was "status post left ankle fracture," and had "a

history of alcohol abuse, and borderline intellectual functioning."

Applying the sequential analysis set forth in 20 C.F.R. § 404.1520,

see also Goodermote v. Secretary of Health and Human Servs., 690

F.2d 5, 6-7 (1st Cir. 1982), the ALJ found that Stephens suffered

from   a   severe        impairment   that       was   not    deemed     presumptively

disabling because it did not meet or equal any impairment found in

the Listings        of    Impairments,      20   C.F.R.      Part    404,    Subpart   P,

Appendix 1.        The ALJ also determined that, although Stephens had

certain exertional limitations, he had the residual functional

capacity ("RFC") to return to his "past relevant work as a janitor,

news salesperson and car washer," and was therefore not disabled.

       Although the ALJ clearly indicated that his ruling was made at

Step Four of the sequential evaluation, he also                        engaged in some

Step Five analysis, further concluding that Stephens had the RFC to


                                            2
perform   other    work   identified    by   the   VE,   which   included   the

positions     of   custodian,   hotel      maintenance    person,   packager,

assembler, security guard, counter clerk, surveillance systems

monitor, cashier and self-service gas station attendant.

     We may set aside a denial of benefits only if it is not

supported by substantial evidence or if it is based on legal error.

Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001).           "We must uphold

the [Commissioner's] findings . . . if a reasonable mind, reviewing

the evidence in the record as a whole, could accept it as adequate

to support h[er] conclusion."          Rodriguez v. Secretary of Health &

Human Servs., 647 F.2d 218, 222 (1st Cir. 1981); accord Irlanda

Ortiz v. Secretary of Health & Human Servs., 955 F.2d 765, 769 (1st

Cir. 1991).

     Stephens first contends that the ALJ erred in defining his

past relevant work and in concluding that he had the RFC to return

to it.    We agree with Stephens on these two points.            Since the ALJ

concluded that Stephens' post-onset, temporary work as a car wash

attendant and newspaper seller was too sporadic to qualify as

"substantial gainful activity," see 20 C.F.R. § 404.1575(a), those

jobs did not meet the definition of "past relevant work."              See 20

C.F.R. §§ 404.1565(a).      Thus, the ALJ's Step Four analysis should

have been limited to consideration of whether Stephens had the RFC

to perform his past work as a janitor.               On that question, we

conclude that the ALJ's findings were insufficient to substantiate


                                       3
his determination that Stephens could return to his past work.

       In considering Stephens' RFC, the ALJ concluded that Stephens'

ability to stand or walk was limited so that he could not "be on

his feet most of the day."      However, the only evidence concerning

the standing or walking requirements of Stephens' past relevant job

consisted of Stephens' own statements that he was required to be on

his feet all day; the VE did not discuss, and the ALJ made no

findings concerning, the specific standing or walking requirements

for either Stephens' job as he actually performed it or for other

similar jobs existing in the economy.             See Social Security Ruling

82-62 (PPS-80), Titles II and XVI: A Disability Claimant's Capacity

to Do Past Relevant Work, In General (S.S.A. 1982), available in

1982 WL 31386; Social Security 82-61 (PPS-72), Titles II and XVI:

Past   Relevant    Work--The   Particular        Job   or   the   Occupation   as

Generally Performed (S.S.A. 1982), available in 1982 WL 31387.

Moreover, the light-to-medium exertional range, within which the

ALJ    concluded   Stephens'   past       work    fell,     generally   requires

"standing or walking, off and on, for a total of approximately 6

hours of an 8-hour workday," Social Security Ruling 83-10 (PPS-

101), Titles II and XVI: Determining Capability to Do Other Work--

The Medical-Vocational Rules of Appendix 2 (S.S.A. 1983), available

in 1983 WL 31251; see 20 § C.F.R. 404.1567; thus, the ALJ's failure

to distinguish either Stephens' particular job or his job as it is

generally performed from this norm make it impossible to conclude


                                      4
that substantial evidence supported the finding that Stephens had

the   RFC   to    return   to   his   past   work   despite   his   exertional

limitations.       See Pinto v. Massanari, 249 F.3d 840, 844-45 (9th

Cir. 2001); Evans v. Shalala, 21 F.3d 832, 834-35 (8th Cir. 1994).



      Having concluded that the ALJ's Step Four determination was

not adequately substantiated, we next consider whether, if the ALJ

had proceeded to the fifth and final step of the sequential

evaluation, a finding of not disabled would have been compelled in

any event.       See Seavey, 276 F.3d at 11; Ward v. Commissioner of

Social Security, 211 F.3d 652, 656 (1st Cir. 2000).                  Stephens

argues that, at Step Five, the ALJ would have been required to

apply     the   Medical-Vocational     guidelines,    20   C.F.R.   Part   404,

Subpart P, Appendix 2 ("the Grids"), and that the applicable Rule

would have directed a determination of "disabled."             See id., Table

2, Rule 202.01.      However, this argument assumes that Stephens' RFC

was limited to light work; if he had the RFC to perform medium

work, the applicable Grid rule would result in a finding of "not

disabled."       See id., Table 3, Rule 203.11.        If the ALJ's finding

that Stephens was capable of some medium work is sustainable,

Stephens' RFC would fall between two exertional ranges, thereby

rendering the Grids inconclusive.1            See Thomas v. Barnhart, 278


      1
      We note that the ALJ suggested this case would have been
"remov[ed] . . . from the [G]rids" because of Stephens'
nonexertional impairments; although we agree with the ALJ's

                                        5
F.3d 947, 960 (9th Cir. 2002); Social Security Ruling 83-12 (PPS-

103), Titles II and XVI: Capability to Do Other Work--The Medical-

Vocational   Rules   as    a     Framework   for   Evaluating   Exertional

Limitations Within a Range of Work or Between Ranges of Work

(S.S.A. 1983), also available in 1983 WL 31253.

     Medium work is defined as "work [that] involves lifting no

more than 50 pounds at a time with frequent lifting or carrying of

objects weighing up to 25 pounds.         If someone can do medium work,

we determine that he or she can also do sedentary and light work."

20 C.F.R. § 404.1567(c).         Here, the ALJ concluded, without much

explanation, that Stephens was capable of lifting up to fifty

pounds despite an examining physician's RFC evaluation which judged

Stephens capable of lifting only ten pounds frequently and twenty

pounds occasionally.           We do not think the ALJ's reliance on

conclusory   findings     by    non-examining   Disability   Determination

Services physicians, which were unsupported by any analysis or

written findings and made well in advance of the RFC evaluation,

justified his discounting of the RFC report.         See Berrios-Lopez v.

Secretary of Health & Human Servs., 951 F.2d 427, 431 (1st Cir.


conclusion, this rationale appears to be inconsistent with his
finding that Stephens' nonexertional impairments were "technical"
and would not have any significant effect on the job base. Heggarty
v. Sullivan, 947 F.2d 990, 996 (1st Cir. 1991); Ortiz v. Secretary
of Health & Human Servs., 890 F.2d 520, 524 (1st Cir. 1989)
("should a nonexertional limitation be found to impose no
significant restriction on the range of work a claimant is
exertionally able to perform, reliance on the Grid remains
appropriate").

                                      6
1991).

     However, from a commonsense point of view, there is sufficient

evidence   in   the   record    to   provide     support    for    the   ALJ's

determination that Stephens was capable of lifting more weight than

the RFC evaluation estimated.        In the first place, the RFC report

provides   no   explanation    for   the   low   estimation   of    Stephens'

capacity to lift and indicated that Stephens' prognosis was "good,"

which suggested that Stephens' condition was expected to continue

to improve.     Moreover, the medical evidence indicates that (1)

Stephens' ankle fracture completely healed without complication,

(2) his pain was caused by weather rather than exertion, and (3)

his pain was controlled by over-the-counter medications.             Although

Stephens suggests that reading the evidence in this way constitutes

an impermissible lay interpretation of raw medical data, see Perez

v. Secretary of Health & Human Servs., 958 F.2d 445, 446 (1st Cir.

1991), this prohibition does not apply where the medical evidence

shows relatively little physical impairment.               Manso-Pizarro v.

Secretary of Health & Human Servs., 76 F.3d 15, 17 (1st Cir. 1996).

In such a case, "an ALJ permissibly can render a commonsense

judgment about functional capacity even without a physician's

assessment."    Id.

     To the extent Stephens challenges the ALJ's determination that

Stephens' complaints of disabling pain were not entirely credible,

we see no error; the ALJ's conclusion is          adequately supported by


                                     7
the evidence cited above as well as Stephens' testimony admitting

that he lost his last permanent position due to a lay off rather

than his injury; that he worked subsequent to the alleged onset

date; and that he had a fairly active daily routine.     The ALJ cited

this evidence and made specific findings supporting his decision to

discount Stephens' complaints.      See DaRosa v. Secretary of Health

& Human Servs., 803 F.2d 24, 26 (1st Cir. 1986); Avery v. Secretary

of Health & Human Servs., 797 F.2d 19, 29 (1st Cir. 1986).            In

light of this evidence, we think that the lack of affirmative

comment on Stephens' ability to lift suggests that no functional

limitation was apparent since, as a matter of commonsense, there is

no obvious reason why someone with a healed ankle fracture would

not be able to lift or carry fifty pounds.

      Having found that the ALJ soundly concluded that Stephens was

capable of at least some medium work, the Grids are rendered

inconclusive, and we must decide whether the VE's testimony was

sufficient to support a finding that Stephens was capable of

performing other work in the economy.     See Thomas, 278 F.3d at 960;

SSR   83-12.   Since   the   VE's   testimony   concerning   other   jobs

specifically assumed a limitation on standing and walking, and the

specific occupations he identified, and which the ALJ cited in his

opinion, all allowed for a significant amount of sitting and were

predominantly in the light exertional range, we think that, under

the substantial evidence standard, the VE's testimony would compel


                                    8
the conclusion that Stephens was capable of doing some work.   See

Thomas, 278 F.3d at 960; SSR 83-12.

     Accordingly, the judgment of the district court is affirmed.

See Loc. R. 27(c).




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