Rose V. Shalala


Even though Chronic Fatigue Syndrome POMS were promulgated after adverse ALJ decision, previous version of same section of POMS re: evaluation of Epstein Barr Virus set forth the same principles. Since historically, EBV and CFS have been used interchangeably (even though the medical evidence is questionable as to whether EBV causes CFS), as a practical matter, the EBV POMS can be applied to CFS cases. Given the uncontroverted evidence that the claimant suffered from CFS, blind reliance on a lack of objective findings is wholly inconsistent with the Secretary's policy as expressed in the POMS and in other pertinent policy statements. No need for objective medical findings. "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." The absence of definitive diagnostic tests makes it plain that the failure of some doctors to state conclusive diagnoses does not constitute substantial evidence to support a finding that the claimant did not suffer from CFS. Opinion of non-treating non-examining doctor that fatigue did not cause significant functional limitations because there was no objective abnormality found to explain the fatigue is not entitled to any weight. The amount of weight 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. The Grid is based on a claimant's exertional capacity and can only be applied when claimant's nonexertional limitations do not significantly impair claimant's ability to perform at a given exertional level. Where hypothetical to VE assumed a condition not supported by the medical evidence, the ALJ could not rely on the VE's opinion as a basis for non-disability finding.