No. 94-1013

Plaintiff, Appellant,


Defendant, Appellee.




[Hon. Edward F. Harrington, U.S. District Judge] ___________________


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


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


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


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


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.


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


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


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). ___


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 _____________________________________


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


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


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


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). ________________


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


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


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.


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


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 _______________________


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


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. __ __ __ _______