Rose v. Shalala

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. Stawicki,
Special Assistant United States Attorney, and Jessie M. Klyce,
Assistant Regional Counsel, Department of Health and Human Services,
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 mental condition. After a hearing, an Administrative
Law Judge (ALJ) conceded that claimant had a severe
impairment or impairments that precluded his return to his
former job as a grocery clerk required to do medium-to-heavy
work. The ALJ found, however, that despite claimant's
exertional impairments he retained the residual functional
capacity to perform sedentary work. The ALJ further found
that claimant's non-exertional impairments (his pain, his
mental condition, and the subjective symptoms associated with
CFS) did not significantly restrict his capacity to perform
the full range of jobs requiring sedentary work. And,
moreover, the ALJ received testimony from a vocational expert
that, notwithstanding claimant's impairments, there existed a
significant number of sedentary jobs in the economy that
claimant could perform, such as marker, sorter, 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 Grid) to reach a finding of not disabled.
The ALJ made an alternative finding that claimant was not
disabled at step 5 of the sequential evaluation process, 20
C.F.R. 404.1520(f), on the ground that the Secretary had
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demonstrated the existence of jobs in the economy that
claimant could perform.
After both the Appeals Council and the district
court refused to set aside the 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. According to claimant,
he began to experience the symptoms associated with CFS in
June 1988.
The relevant medical evidence, listed in rough
chronological order, can be summarized as follows. On
September 29, 1988, Dr. Hillier, a treating orthopedist,
diagnosed a chronic lumbar radiculopathy, but concluded that
claimant "can return to work involving no repetitive heavy
lifting." On November 16, 1988, Dr. Hillier stated that
claimant "has made a good recovery" from his back problems,
and concluded: "He is going to return to work; other than
extremely heavy lifting which is not required of his job, I
see no reason why he could not return to work." On March 6,
1989, Dr. Hillier stated that, orthopedically, there was "no
sign of any malingering," and that claimant, from an
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orthopedic standpoint, "could return to light duty status
work at the supermarket." The doctor noted, nevertheless,
that "there seems to be a problem." Dr. Hillier made no
mention of CFS or any of the symptoms associated with it;
instead, he confined his findings to claimant's lumbosacral
problems.
In the fall of 1989, the circumstances changed. On
October 11, 1989, Dr. Hillier reported that claimant "has
developed an unrelated problem of weight loss, low-grade
fever and swollen glands. He has been seen by numerous
medical doctors and no definitive diagnosis has been made."
On December 19, 1989, Dr. Hillier stated that claimant's
"workup [had become] consistent with a chronic fatigue
syndrome." On July 12, 1990, Dr. Hillier wrote that claimant
was bedridden for weeks at a time and "is unable to
participate in any kind of exercise because of constant
fatigue."
Dr. Perl, a treating physician, diagnosed
claimant's back problems in 1989. His October 26, 1989
report concluded that claimant "remains totally disabled."
In a July 31, 1990 report, Dr. Perl found claimant "partially
disabled." Both reports were limited to assessments of
claimant's lumbosacral condition; neither report mentioned
CFS or its symptoms.
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On May 24, 1990, Dr. Chowdri, a treating physician
specializing in internal medicine and infectious disease,
reported that when he first examined claimant on November 6,
1989, claimant "had generalized malaise, which he found to be
quite disabling, recurrent sore throat, and weight loss." At
that time, the doctor found claimant "extremely fatigued and
. . . not able to work." Dr. Chowdri's report indicated
that, in a series of later visits (through April 27, 1990),
claimant continued to complain of fatigue, low-grade fever,
and sore throat. Dr. Chowdri diagnosed CFS. In a report
dated September 14, 1990, Dr. Chowdri noted that, in three
ensuing visits, claimant had continued to complain of fatigue
and "generalized malaise." Nonetheless, a physical
examination proved "unremarkable." Dr. Chowdri stated that
he could not "find any physiological reason why this patient
cannot return to work." On an accompanying form, Dr. Chowdri
endorsed his opinion that "this patient can return to work."
Dr. Wagner, a treating physician, stated in a
September 18, 1990 report that claimant's medical tests were
unremarkable; he wrote that "[t]o my knowledge, at this time
[claimant] has no major medical illnesses" and "is not
disabled . . . ." While Dr. Wagner noted that other doctors
had diagnosed CFS, he deemed himself "unqualified to
recommend disability on the basis of chronic fatigue
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syndrome" and suggested that claimant "seek counsel of a
subspecialist in infectious disease in this regard."
In a September 27, 1990 report, Dr. Harris, an
internist, reported that he had examined claimant on two
occasions (in July and September 1990). Although claimant
"described a two year history of malaise and fatigue" to Dr.
Harris, a "[g]eneral physical examination was unremarkable."
The physician concluded that claimant "may fit the diagnosis
of so-called chronic fatigue syndrome though there are
clearly no definitive diagnostic tests."
On January 7, 1991, Dr. Weinstein, a treating
physician, noted that although numerous diagnostic tests had
been negative or normal, for two years claimant "has been
debilitated by intermittent episodes of severe sore throat,
low-grade fevers, intermittent diarrhea, severe headaches and
disabling fatigue to the point [where] he can't work." Dr.
Weinstein "suspect[ed] . . . underlying chronic fatigue
syndrome." 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, 1991, Dr. Tosches, a treating
neurologist, noted that claimant had a long record of
complaining about many of the symptoms normally associated
with CFS. Dr. Tosches diagnosed "chronic fatigue
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immunodeficiency syndrome," saying that the diagnosis was
"documented in this patient's history and medical notes which
support the history." On May 22, 1991, Dr. Weiss, a
treating physician, reported that claimant had
symptoms of "fatigue, nausea, [diminished] concentration,
frequent sore throats, dysuria, and diffuse aches," and that
these symptoms "wax & wane, but [are] always present, at
times more severe." He thought claimant was "[o]ften too
fatigued to carry out routine tasks of life."
In addition, two non-examining physicians, after
reviewing the medical evidence in the record, both checked
boxes on residual functional capacity assessment forms
indicating that claimant could lift at least 20 pounds (at
least 10 pounds frequently), could stand, sit, or walk six
hours, and could climb, balance, stoop, kneel, crouch, and
crawl at least occasionally. No other functional limitations
were noted. One physician explained this evaluation by
stating that "[t]here has been no objective abnormality found
to explain the fatigue." The other physician relied on Dr.
Chowdri's comment "that physical condition does not preclude
work." These two residual functional capacity assessments
correspond to a finding that claimant could perform light
work. See 20 C.F.R. 404.1567(b).
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There is also some psychiatric evidence in the
record. On November 27, 1990, Dr. Schembri, a treating
psychologist, diagnosed CFS and secondary depression. In a
report of a telephone conversation with Dr. Schembri, an HHS
official observed that Dr. Schembri said that "claimant is
legitimate in [his] disease," and that the doctor "feels
strongly that claimant cannot work. He has no energy. He
has been suffering for a long time and did not apply for
assistance until Dr. Schembri pressed him."
Dr. Delgado, a consulting psychiatrist, examined
claimant on December 5, 1990. Dr. Delgado was not of much
assistance as to CFS. He stated: "This is an individual who
has a syndrome which I can't comment on except to say that
nothing has apparently turned up in physical or laboratory
studies as far as I can determine."
Dr. Pereira, a consulting psychologist, examined
claimant on July 19, 1991. He noted claimant's complaints of
"fatigue-like symptoms for the past three years," but found
that, "[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
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In section DI 24575.005 of the Secretary's Program
Operations Manual System (1993) (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
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issued his decision and the Appeals Council had affirmed it.
Yet the 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, 804 F.Supp. 914, 918 (E.D. Mich. 1992). Although
medical authorities have stated that "notwithstanding initial
inferences, . . . EBV [Epstein-Barr virus] is not the
exclusive or even principal cause of Chronic Fatigue
Syndrome," id. at 920 (paraphrasing the Harvard Medical
School Health Letter on Chronic Fatigue Syndrome (July
1988)), several courts have noted the close similarity and
possible relationship between the two maladies and have
treated them more or less as peas in a pod. See, e.g., Cohen
v. Secretary of HHS, 964 F.2d 524, 529 (6th Cir. 1992);
Thaete v. Shalala, 826 F.Supp. 1250, 1251 (D. Colo. 1993);
Reed, 804 F.Supp. at 918. 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
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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 concerning the nature and medical
diagnosis of CFS. These verities -- only recently
established by the medical community -- have been noted by
other courts, see, e.g., Sisco v. Department of HHS, 10 F.3d
739, 744 (10th Cir. 1993) ("At this point there is no
``dipstick' laboratory test for chronic fatigue syndrome;" the
medical community instead uses an "operational" diagnostic
procedure, so the disease is "not per se excluded from
coverage because it cannot be conclusively diagnosed in a
laboratory setting"); Reed, 804 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
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The Diagnosis of CFS
The ALJ found that claimant has "possible" CFS. We
think that this finding grossly understates the nisi prius
roll. The administrative record reveals no genuine issue of
medical fact: claimant does suffer from CFS. As we explain
below, this conclusion is irresistible.
Dr. Tosches and Dr. Weinstein both diagnosed CFS.
Although other doctors stated that they were not equipped to
speak definitively to whether claimant had CFS, no doctor
rejected a diagnosis of CFS. And virtually all the doctors
who did not disclaim the ability to assess the matter found
that claimant had symptoms fully consistent with CFS.
Moreover, from mid-1989 forward, the medical references in
the record to symptoms of CFS are strikingly consistent.
Nor is the length of time that passed harmful to
claimant's case. Diagnosing CFS is not sport for the short-
winded. "[B]ecause chronic fatigue syndrome is diagnosed
partially through a process of elimination, an extended
medical history of 'nothing-wrong' diagnoses is not unusual
for a patient who is ultimately found to be suffering from
the disease." Sisco, 10 F.3d at 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).
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definitive diagnostic tests, see POMS, supra; see also Sisco,
10 F.3d at 744, makes it plain that the failure of some
doctors to state conclusive diagnoses does not constitute
substantial evidence to support a finding that claimant did
not suffer from the syndrome. See Sisco, 10 F.3d at 745(findings of physicians who did not rule out CFS, but "merely
expressed an inability to discover an adequate physical
explanation for [claimant's] symptoms," do not constitute
substantial evidence to rebut other physicians' diagnoses of
CFS).
We will not paint the lily. It is common ground
that an ALJ is not free to substitute his own judgment for
uncontroverted medical opinion. See, e.g., Rosado v.
Secretary of HHS, 807 F.2d 292, 293-94 (1st Cir. 1986) (per
curiam). In this case, uniform medical opinion 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 from the symptoms
usually associated with CFS, unless there was substantial
evidence in the record to support a finding that claimant did
not endure a particular symptom or symptoms. Chief among
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these symptoms, of course, is "persistent unexplained
fatigue." POMS DI 24575.005 (1993). The record does not
contain any meaningful evidence to support a finding that
claimant did not suffer from a significant level of fatigue
on a regular basis. Leaving to one side Dr. Perl and Dr.
Hillier (in his earlier reports) -- both of whom confined
themselves to discussing claimant's back condition -- all the
other examining physicians' reports, over a period of more
than 18 months, consistently noted (and credited) claimant's
complaints of persistent fatigue.3
The record also contains reports of two non-
examining physicians that failed to note any significant
functional limitations resulting from fatigue. But, one
relied on Dr. Chowdri's statement, the other on the lack of
any "objective abnormality found to explain the fatigue."
The former constitutes too weak a reed for such reliance.
See supra n.3. And the latter is entitled to no 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.
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We have held that the amount of weight that can
properly be given the conclusions of non-testifying, non-
examining physicians "will vary with the circumstances,
including the nature of the illness and the information
provided the expert." Berrios Lopez v. Secretary of HHS, 951
F.2d 427, 431 (1st Cir. 1991) (per curiam) (quoting Rodriguez
v. Secretary of HHS, 647 F.2d 218, 223 (1st Cir. 1981));
accord Gordils v. Secretary of HHS, 921 F.2d 327, 328 (1st
Cir. 1990) (per curiam). In some cases, written reports
submitted by non-testifying, non-examining physicians cannot
alone constitute substantial evidence, see Browne v.
Richardson, 468 F.2d 1003, 1006 (1st Cir. 1972), although
this is 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 nature of
the illness." Berrios Lopez, 951 F.2d at 431 (quoting
Rodriguez, 647 F.2d at 223). The non-examining physicians
relied on what they discerned as a lack of objective findings
sufficient to prove the existence of significant fatigue.
Given the uncontroverted medical evidence that claimant
suffered from CFS, however, blind reliance on a lack of
objective findings is wholly inconsistent with the
Secretary's policy in such cases as expressed in the POMS and
in other pertinent policy statements. See, e.g., POMS DI
24575.005 (1993) (continuing that although "[p]hysical
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examination may be within normal limits," nevertheless,
"[i]ndividual cases must be adjudicated on the basis of the
totality of evidence").
Furthermore, the medical evidence establishes that
claimant possesses a medical condition -- CFS -- that can
reasonably be expected to produce the alleged fatigue. The
question here is the extent to which claimant's fatigue in
fact restricts his residual functional capacity. Such an
inquiry -- into the functional implications of a claimant's
subjective symptoms -- "is the kind of inquiry for which on-
the-spot examination and observation of claimant might
ordinarily be thought important." Berrios Lopez, 951 F.2d at
432. The subjective severity of a claimant's fatigue
associated with CFS is not something readily evaluated on an
algid administrative record.
Under the particular circumstances of this case, we
hold that, even if the non-examining physicians' notations
can be read to suggest that claimant's fatigue did not
significantly affect his functional capacity, these
notations, without more, could not support the ALJ's finding
to that effect. And because this comprises the only evidence
in support, we conclude that the ALJ's finding is not
supported by substantial evidence.
Application of the Grid
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The Grid is based on a claimant's exertional
capacity and can only be applied when 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), cert.
denied, 461 U.S. 958 (1983). Since the medical evidence in
this case compelled a finding that claimant's fatigue
resulting from CFS did significantly impair claimant's
ability to perform even sedentary work, the ALJ erred in
relying on the Grid to reach a finding of "not disabled."
The Vocational Testimony
The ALJ based his determination that claimant was
not disabled not only on the Grid but also on the testimony
of a vocational expert who, in response to the ALJ's
hypothetical, opined that claimant could perform a number of
jobs. The ALJ's hypothetical, however, impermissibly omitted
any mention of a significant functional limitation arising
from the fatigue symptoms associated with CFS. Because the
ALJ's hypothetical assumed that fatigue did not pose a
significant functional limitation for the claimant, and
because the medical evidence did not permit that assumption,
the ALJ could not rely on the vocational expert's response as
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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 district court with instructions to
remand to the Secretary for further findings and/or
proceedings not inconsistent with this opinion.
It is so ordered.
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