USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________
No. 94-1013
GARY M. ROSE,
Plaintiff, Appellant,
v.
DONNA E. SHALALA, SECRETARY OF
THE DEPARTMENT OF HEALTH AND HUMAN SERVICES,
UNITED STATES OF AMERICA,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
____________________

Bernard A. Kansky on brief for appellant.

_________________
Donald K. Stern, United States Attorney, Charlene A. Stawic
________________
___________________
Special Assistant United States Attorney, and Jessie M. Kly
_______________
Assistant Regional Counsel, Department of Health and Human Servic
on brief for appellee.
____________________
September 7, 1994
____________________

SELYA, Circuit Judge.

_____________

Claimant Gary Rose filed an

application for Social Security disability benefits on August

13, 1990, alleging chronic fatigue syndrome (CFS), back pain,
and a
Law

mental condition.
Judge

(ALJ)

After a

conceded

hearing, an Administrative

that

claimant

had

severe

precluded his return

to his

impairment or

impairments that

former job as

a grocery clerk required to do medium-to-heavy

work.

The

exertional

ALJ

found, however,

impairments he

capacity to perform
that claimant's

that

retained the

sedentary work.

non-exertional

despite

claimant's

residual functional

The ALJ further

impairments (his

pain,

found
his

mental condition, and the subjective symptoms associated with

CFS) did
the

not significantly restrict his

full

range of

jobs

requiring

capacity to perform

sedentary work.

And,

moreover, the ALJ received testimony from a vocational expert

that, notwithstanding claimant's impairments, there existed a
significant

number of

claimant could

sedentary

perform, such

jobs in

as

the economy

marker, sorter,

that

packager,

boxer, and carder.

Accordingly,

the ALJ

applied Rule

201.27 of

the

Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P,

Appendix 2 (the
The ALJ

made an

disabled
C.F.R.

Grid) to

reach a finding

alternative finding

at step 5 of the
404.1520(f),

of not

that claimant

disabled.
was not

sequential evaluation process, 20

on the ground

that the Secretary

had

-2-

demonstrated

the

existence

of

jobs in

the

economy

that

claimant could perform.

After
court

refused

both the
to set

Appeals

aside

the

Council and

the district

ALJ's decision,

claimant

appealed

to this

court.

We vacate

the Secretary's

final

decision and remand for further proceedings.

The Medical Evidence

____________________

Claimant alleged back pain resulting from an injury

he suffered at work in December 1987.
he began

to experience the

According to claimant,

symptoms associated with

CFS in

June 1988.
The

relevant

chronological

order,

September 29,

1988,

medical
can

be

evidence,

listed

summarized as

Dr. Hillier,

in rough

follows.

treating

On

orthopedist,

diagnosed a chronic lumbar radiculopathy, but concluded

claimant "can
lifting."

return to
On November

claimant "has made

and

concluded:

work involving no
16, 1988,

"He is

going to return

extremely heavy lifting which

sign

of

any

stated that

back problems,

to work; other than

is not required of his

see no reason why he could not return to

1989, Dr. Hillier stated

repetitive heavy

Dr. Hillier

a good recovery" from his

that

work."

job, I

On March 6,

that, orthopedically, there was "no

malingering,"

and

-3-

that

claimant,

from

an

orthopedic
work at

standpoint,

"could return

the supermarket."

that "there

seems to

mention of CFS

be a

or any

to light

The doctor

noted, nevertheless,

problem."

Dr. Hillier

of the symptoms

instead, he confined his

duty status

made no

associated with

findings to claimant's

it;

lumbosacral

problems.
In the fall of 1989, the circumstances changed.
October

11, 1989,

developed an
fever

and

unrelated

[had

syndrome."
was

He

weight

has

1989,

become]

Dr. Hillier
consistent

claimant "has

loss,

been seen

and no definitive diagnosis

December 19,

"workup

reported that

problem of

swollen glands.

medical doctors
On

Dr. Hillier

low-grade
by numerous

has been made."

stated that
with

On

claimant's

chronic

fatigue

On July 12, 1990, Dr. Hillier wrote that claimant

bedridden

participate

for

in

weeks

any kind

at
of

time

and

exercise

"is

because of

unable

to

constant

fatigue."
Dr.
claimant's
report

Perl,

back

treating

problems in

concluded that

1989.

physician,
His

claimant "remains

October

diagnosed
26, 1989

totally disabled."

In a July 31, 1990 report, Dr. Perl found claimant "partially

disabled."
claimant's

Both reports
lumbosacral

were

limited

condition; neither

to assessments

of

report mentioned

CFS or its symptoms.

-4-

On May 24, 1990,

specializing in

internal

Dr. Chowdri, a treating physician

medicine and

reported that when he first

infectious

disease,

examined claimant on November 6,

1989, claimant "had generalized malaise, which he found to be

quite disabling, recurrent sore throat, and weight loss."
that time, the doctor
. .

. not

found claimant "extremely fatigued and

able to work."

that, in a series

Dr.

Chowdri's report

indicated

of later visits (through April

claimant

continued to complain

and sore

throat.

dated

At

Dr.

of fatigue, low-grade fever,

Chowdri diagnosed CFS.

September 14, 1990,

27, 1990),

Dr. Chowdri noted

In a

report

that, in three

ensuing visits, claimant had continued to complain of fatigue

and

"generalized

examination proved

malaise."
"unremarkable."

Nonetheless,
Dr. Chowdri

he could not "find any physiological reason why

cannot return to work."

physical

stated that
this patient

On an accompanying form, Dr. Chowdri

endorsed his opinion that "this patient can return to work."

Dr. Wagner,

treating

September 18, 1990 report

unremarkable;
[claimant]

has

diagnosed

recommend

stated

in

that claimant's medical tests were

he wrote that "[t]o my knowledge, at this time

no

disabled . . . ."
had

physician,

major

medical illnesses"

While Dr. Wagner noted

CFS,

he

disability

deemed

on

the

"is

not

that other doctors

himself

basis

and

"unqualified

of

chronic

to

fatigue

-5-

syndrome"

and suggested

that

claimant "seek

counsel of

subspecialist in infectious disease in this regard."

In
internist,

a September
reported that

occasions (in
"described
Harris,

July and

27,
he

had examined

September 1990).

Dr. Harris,
claimant on

an
two

Although claimant

a two year history of malaise and fatigue" to Dr.

a "[g]eneral physical examination was unremarkable."

The physician concluded that

of

1990 report,

so-called

chronic

claimant "may fit the diagnosis

fatigue

syndrome

though

there

are

clearly no definitive diagnostic tests."

On January
physician, noted
been

1991,

Dr.

Weinstein,

treating

that although numerous diagnostic tests had

negative or

debilitated by

7,

normal, for two

years claimant

intermittent episodes of severe

"has been

sore throat,

low-grade fevers, intermittent diarrhea, severe headaches and

disabling fatigue to the
Weinstein

"suspect[ed]

syndrome."

point [where] he can't work."

.

underlying

Dr.

chronic fatigue

On February 20, 1991, Dr. Weinstein reported that

claimant remained "very tired, unable to function very well,"

and

concluded that "[a]t

this time, all

is consistent with

chronic fatigue."
On

April

9,

neurologist,

noted

that

complaining about
with

CFS.

1991,

claimant

many of the

Dr.

Dr.

Tosches,
had

long

symptoms normally

Tosches

diagnosed

"chronic

treating
record

of

associated
fatigue

-6-

immunodeficiency

syndrome,"

saying that

the

diagnosis was

"documented in this patient's history and medical notes which

support the history."

On May

treating physician,

reported

symptoms

of

"fatigue,

symptoms "wax

times

more severe."

that

nausea, [diminished]

frequent sore throats, dysuria,

these

22, 1991, Dr.

& wane,

Weiss, a

claimant

had

concentration,

and diffuse aches," and that

but [are]

He thought

always

claimant was

present, at
"[o]ften too

fatigued to carry out routine tasks of life."

In

addition,

reviewing the
boxes

on

two non-examining

medical evidence

residual

least 10

capacity

could lift at

pounds frequently), could

hours, and

could climb,

noted.

One

both checked

assessment

forms

least 20 pounds

stand, sit, or

balance, stoop, kneel,

crawl at least occasionally.

were

in the record,

functional

indicating that claimant

physicians, after

(at

walk six

crouch, and

No other functional limitations

physician

explained

this evaluation

by

stating that "[t]here has been no objective abnormality found

to explain the fatigue."

The other physician relied

Chowdri's comment "that physical

work."

These

correspond
work.

two residual

to a

See 20 C.F.R.
___

condition does not preclude

functional capacity

finding that

claimant could

404.1567(b).

-7-

on Dr.

assessments
perform light

There
record.

On

is

also some

November 27,

psychologist, diagnosed

psychiatric

1990,

evidence

Dr. Schembri,

in the
treating

CFS and secondary depression.

In a

report of a telephone conversation with Dr. Schembri, an

official observed
legitimate

that Dr.

in [his]

Schembri said that

disease,"

strongly that claimant cannot

has been

suffering for

and that
work.

a long

He

HHS

"claimant is

the doctor

"feels

has no energy.

He

did not apply

for

time and

assistance until Dr. Schembri pressed him."

Dr.
claimant on

Delgado,

December 5, 1990.

assistance as to CFS.
has a

a consulting

nothing has

Dr. Delgado was not

He stated:

syndrome which I can't

apparently turned

psychiatrist, examined
of much

"This is an individual who

comment on except
up in physical

to say that
or laboratory

studies as far as I can determine."

Dr.

Pereira,

a consulting

claimant on July 19, 1991.

"fatigue-like symptoms
that,
.

psychologist, examined

He noted claimant's complaints of

for the past three

years," but found

"[p]sychodiagnostically," the only "clear indication .

suggestive of

any

serious

psychopathology" was

that

claimant "may be experiencing a mild adjustment disorder."

The Secretary's Policy Concerning CFS

_____________________________________

-8-

In section DI 24575.005 of
Operations

Manual

System

(1993)

the Secretary's Program

(POMS),

the

Secretary

established a policy for the evaluation of claims premised on

CFS.

This policy states in pertinent part:

Chronic
Fatigue
Syndrome
(CFS),
previously known as Chronic Epstein-Barr
Virus Syndrome, and also currently called
Chronic Fatigue and Immune Dysfunction
Syndrome,
is
a
systemic
disorder
consisting of a complex of variable signs
and symptoms which may vary in duration
and severity. The etiology and pathology
of
the
disorder
have
not
been
established.
Although there
are no
generally
accepted criteria
for the
diagnosis of cases of CFS, an operational
concept is used by the medical community.
There is no specific
treatment, and
manifestations
of
the syndrome
are
treated symptomatically.
CFS is characterized by the presence of
persistent unexplained fatigue and by the
chronicity of other symptoms. The most

prevalent symptoms include episodes of

low-grade
fever, myalgias,
headache,
painful lymph nodes, and problems with
memory and concentration. These symptoms
fluctuate in frequency and severity and
may be seen to continue over a period of
many months. Physical examination may be
within normal limits.
Individual cases
must be adjudicated on the basis of the
totality
of evidence,
including the
clinical course from the onset of the
illness, symptoms, signs, and laboratory
findings. Consideration should be given
to onset, duration, severity and residual
functional
capacity
following
the
sequential evaluation process.
POMS

DI 24575.005 (1993).
To be

sure, this particular version

of the policy

was not promulgated until November of 1993, after the ALJ had
-9-

issued his decision and the Appeals

Yet the

Council had affirmed it.

previous version of the same section of the POMS set

forth the same principles governing the evaluation of chronic

Epstein-Barr virus syndrome (CEBV).

See Reed v. Secretary of

___ ____
____________

HHS,
___

Mich. 1992).

804

F.Supp. 914,

918

(E.D.

Although

medical authorities have stated that "notwithstanding initial

inferences,
exclusive
Syndrome,"
School

.
or
id.
__

Health

1988)), several
possible

. .

EBV

even
at

[Epstein-Barr

principal
920

Letter

cause

(paraphrasing
on

Chronic

courts have

virus]
of

the

v.

Secretary of HHS,
_________________

Thaete v.
______

964 F.2d

Shalala, 826 F.Supp.

_______

Reed, 804 F.Supp. at 918.

____

524,

Medical

Syndrome

(July

similarity and

maladies

treated them more or less as peas in a pod.

the

Fatigue

the Harvard

Fatigue

two

not

Chronic

noted the close

relationship between

is

and

have

See, e.g., Cohen

___ ____ _____

529 (6th

1250, 1251 (D.

Cir. 1992);
Colo. 1993);

As the Cohen court wrote:

_____

Due
to
the
close association
and
suspected causal relationship between the
Epstein-Barr virus and chronic fatigue
syndrome, the two are sometimes referred
to synonymously. Although recent studies
suggest that
the causal relationship
between
the
Epstein-Barr virus
and
chronic fatigue syndrome may in fact be
more attenuated than initially believed,
[the two terms] continue to be used
somewhat interchangeably.
Cohen, 964 F.2d at 529.
_____

Given this historical background, we

conclude that, as a practical matter, the POMS policy we have

-10-

quoted

was in

effect

for CFS

cases

at the

time the

ALJ

decided this case.1

The POMS demonstrates the Secretary's acceptance of
certain

propositions

diagnosis

of

established by
other
739,

CFS.

concerning
These

the

nature

verities

the medical community

--

and

medical

only

recently

-- have been

noted by

courts, see, e.g., Sisco v. Department of HHS, 10 F.3d

___ ____ _____
_________________
744

(10th

Cir. 1993)

("At

this

point

there is

no

`dipstick' laboratory test for chronic fatigue syndrome;" the

medical

community instead

procedure,
coverage

so

the disease

because it

uses an
is

cannot be

laboratory setting"); Reed, 804

____

"not

"operational" diagnostic
per

se excluded

from

conclusively diagnosed

in a

F.Supp. at 920-21 (similar),

and form the framework for our decision.2

____________________
1. In view of this conclusion, we need not consider whether
the version of the POMS issued in November 1993 should be
applied retroactively in open cases.
And were we to reach
the issue, it seems
very doubtful that a retroactive
application of the new version, in order to remove barriers
to benefits awards that CFS sufferers heretofore may have
faced, would result in any injustice or unfairness.
Cf.
__
DeGurules v. INS, 833 F.2d 861, 863 (9th Cir. 1987) (in
_________
___
reviewing administrative agency ruling, court will apply the
law as it exists when rendering its decision unless to do so
will cause manifest injustice). In any event, the Secretary

has raised no objection to retroactive application of the new

version of the POMS in this case.
2. The Secretary has raised no objection to according the
POMS policy binding effect on the Secretary's decisionmaking.
See Avery v. Department of HHS, 797 F.2d 19, 23 (1st Cir.
__________
__________________
1986) (noting question as to whether the POMS is ordinarily
binding on ALJs or on the Appeals Council).
In any event,
the Secretary's policy expressed in Social Security Ruling
-11-

The Diagnosis of CFS

____________________

The ALJ found that claimant has "possible" CFS.

think that
roll.

this finding

grossly understates the

The administrative record

medical fact:

We

nisi prius
____ _____

reveals no genuine issue of

claimant does suffer from

CFS.

As we explain

below, this conclusion is irresistible.

Dr. Tosches and
Although other
speak

Dr. Weinstein both diagnosed

CFS.

doctors stated that they were not equipped to

definitively to

whether claimant

rejected a diagnosis of
who did not disclaim

CFS.

had CFS,

And virtually all

the ability to assess the

no doctor
the doctors

matter found

that

claimant

Moreover, from

had

symptoms

fully

mid-1989 forward,

consistent

the medical

with

CFS.

references in

the record to symptoms of CFS are strikingly consistent.

Nor is the
claimant's
winded.

case.

length of time

through a

medical history

to

Diagnosing CFS is not sport for the short-

"[B]ecause chronic

partially

that passed harmful

process

fatigue
of

syndrome is

elimination,

an

of 'nothing-wrong' diagnoses is

for

a patient who is

the

disease."

Sisco,
_____

ultimately found to
10

F.3d at

diagnosed
extended

not unusual

be suffering from

745.

The absence

of

____________________
88-13, governing the "evaluation of pain and other symptoms,"
appears fully consistent with the POMS policy.
This Ruling
was issued in 1988, long before any of the determinations in
this case, and binds the Secretary.
See McDonald v.
___ ________
Secretary of HHS, 795 F.2d 1118, 1125 (1st Cir. 1986).
________________
-12-

definitive diagnostic tests, see POMS, supra; see also Sisco,

________ _____ ___ ____ _____
10

F.3d at

doctors

744, makes

to state

it plain

conclusive

that

the failure

diagnoses does

of some

not constitute

substantial evidence
not

suffer from

to support a finding

the syndrome.

See
___

that claimant did

Sisco, 10 F.3d
_____

at 745

(findings of physicians who did not rule out CFS, but "merely
expressed

an

inability

explanation for

to discover

[claimant's]

an

adequate

symptoms," do

not

substantial evidence to rebut other physicians'

physical
constitute

diagnoses of

CFS).
We
that an

will not paint the

ALJ is not

uncontroverted

Secretary of HHS, 807

________________
curiam).

It

is common ground

free to substitute his

own judgment for

medical

lily.

opinion.

See,
___

e.g.,
____

F.2d 292, 293-94 (1st Cir.

In this case,

uniform medical opinion

Rosado
______

v.

1986) (per
requires a

finding that claimant suffers from CFS.

The Functional Significance of Claimant's Fatigue

_________________________________________________

Because the medical evidence bound the Secretary to

find that claimant does have CFS, the Secretary had no choice
but to

conclude that the claimant suffers

usually associated

with

CFS, unless

from the symptoms

there was

substantial

evidence in the record to support a finding that claimant did

not endure

a particular

symptom or

-13-

symptoms.

Chief

among

these

symptoms,

fatigue."
contain

POMS

DI

course,

is

"persistent

24575.005 (1993).

any meaningful

claimant did
on

of

evidence to

The record

support a

not suffer from a significant

a regular basis.

Hillier (in

Leaving to

his earlier reports)

unexplained

finding that

level of fatigue

one side Dr.

-- both

does not

Perl and Dr.

of whom

confined

themselves to discussing claimant's back condition -- all the

other examining

physicians' reports,

over a period

than 18 months, consistently noted (and

of more

credited) claimant's

complaints of persistent fatigue.3

The
examining
functional

record

also

contains

reports

physicians

that

failed to

note

limitations resulting

relied on Dr. Chowdri's

any

"objective

The former

abnormality found

And

two

fatigue.

weak a

to explain

non-

any significant
But,

statement, the other on the

constitutes too

See supra n.3.

___ _____

from

of

one

lack of

the fatigue."

reed for such

the latter is entitled to no

reliance.
weight; as

the POMS makes clear, lack of objective proof is what one may
expect in cases of CFS.

____________________
3. The form filled out by Dr. Chowdri on September 14, 1990
is not evidence to the contrary. In the detailed medical
reports attached to this form, Dr. Chowdri repeatedly noted
that claimant suffered from "generalized malaise," which was
"quite
disabling,"
and that
claimant
was "extremely
fatigued."
Dr. Chowdri's statement, therefore, did not
constitute substantial evidence for a finding that claimant
did not suffer from significant fatigue.
-14-

We have held
properly be

given

that the

amount of

the conclusions

examining

physicians

including

the

"will

nature of

provided the expert."

vary

the

weight that

of non-testifying,
with

illness

the

can
non-

circumstances,

and the

information

Berrios Lopez v. Secretary of HHS, 951

_____________
________________

F.2d 427, 431 (1st Cir. 1991) (per curiam) (quoting Rodriguez
_________________
v.

Secretary of HHS, 647

_________________

accord
______

F.2d 218,

223 (1st

Gordils v. Secretary of HHS, 921 F.2d

_______
_________________

Cir. 1990)

(per curiam).

In

some

constitute

substantial

327, 328 (1st

cases, written

submitted by non-testifying, non-examining

alone

Cir. 1981));

evidence,

reports

physicians cannot
see

Browne

v.

____________
Richardson,
__________
this is

468 F.2d

1003, 1006

(1st Cir.

1972), although

not an ironclad rule, see Berrios Lopez, 951 F.2d at

___ _____________

431; Gordils, 921 F.2d at 328.

_______
The deciding factor in this case is "the
the illness."
Rodriguez, 647
_________

Berrios Lopez, 951

______________
F.2d at

223).

F.2d

The

at

nature of

431

(quoting
_______

non-examining physicians

relied on what they discerned as a lack of objective findings

sufficient

to prove

Given

uncontroverted

the

suffered
objective

from CFS,

the existence
medical

however,

findings

is

of

significant fatigue.

evidence

blind reliance

wholly

that
on

inconsistent

claimant
a lack
with

of
the

Secretary's policy in such cases as expressed in the POMS and

in other pertinent policy
24575.005

(1993)

statements.

(continuing

-15-

that

See, e.g., POMS

___ ____
although

DI

"[p]hysical

examination

may

be

within

"[i]ndividual cases must

normal

limits,"

nevertheless,

be adjudicated on the basis

of the

totality of evidence").
Furthermore, the medical evidence
claimant possesses
reasonably

condition --

be expected to produce the

question here is
fact

a medical

the extent to

restricts his

establishes that
CFS --

that can

alleged fatigue.

The

which claimant's fatigue

residual functional

capacity.

in

Such an

inquiry --

into the functional implications

subjective

symptoms -- "is the kind of inquiry for which on-

the-spot

examination

and

observation

of

of a claimant's

claimant

might

ordinarily be thought important."

Berrios Lopez, 951 F.2d at

_____________

432.

of

The

subjective

severity

associated with CFS is not

claimant's

fatigue

something readily evaluated on an

algid administrative record.

Under the particular circumstances of this case, we
hold that,
can

be

even if the

read

non-examining physicians'

to suggest

significantly

affect

that
his

claimant's
functional

notations, without more, could

to that effect.
in

support,

we

notations

fatigue
capacity,

did not
these

not support the ALJ's finding

And because this comprises the only evidence

conclude

that

the

ALJ's

supported by substantial evidence.

Application of the Grid

_______________________

finding

is not

-16-

capacity

The

Grid

is

based

on

and

can

only

be

applied

claimant's
when

exertional

claimant's

non-

exertional limitations do not significantly impair claimant's

ability

to perform at a given exertional level.

See Sherwin
___ _______

v. Secretary of HHS, 685 F.2d

________________

1, 2-3 (1st Cir. 1982),

denied, 461 U.S. 958

______

Since the medical

this

case

resulting

compelled
from

ability to

CFS

(1983).
a
did

perform even

finding

that

significantly
sedentary work,

evidence in

claimant's
impair
the

cert.
_____

fatigue

claimant's

ALJ erred

in

relying on the Grid to reach a finding of "not disabled."

The Vocational Testimony

________________________

The ALJ
not disabled
of

based his determination that

not only on the Grid

vocational

expert

who,

in

hypothetical, opined that claimant

claimant was

but also on the testimony

response

to

the

ALJ's

could perform a number of

jobs.

The ALJ's hypothetical, however, impermissibly omitted

any mention

of a

from the fatigue

ALJ's

significant functional limitation

symptoms associated with CFS.

hypothetical

significant

assumed

functional

that

limitation

because the medical evidence

fatigue did
for

the

arising

Because the
not

pose

claimant,

a
and

did not permit that assumption,

the ALJ could not rely on the vocational expert's response as

-17-

a basis for finding claimant not disabled.

See, e.g., Arocho

___ ____ ______

v. Secretary of HHS, 670 F.2d 374, 375 (1st Cir. 1982).

________________

Conclusion
__________

We need go

no further.

For the

reasons we

have

stated, the judgment of the district court is vacated and the

case is remanded to the
remand

to

the

district court with instructions

Secretary

for

further

findings

to

and/or

proceedings not inconsistent with this opinion.

It is so ordered.
__ __ __ _______

-18-