Rose v. Shalala
| Decision Date | 07 September 1994 |
| Docket Number | No. 94-1013,94-1013 |
| Parties | , Unempl.Ins.Rep. (CCH) P 14101B Gary M. ROSE, Plaintiff, Appellant, v. Donna E. SHALALA, Secretary of the Department of Health and Human Services, United States of America, Defendant, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Bernard A. Kansky, on brief for appellant.
Donald K. Stern, U.S. Atty., Charlene A. Stawicki, Sp. Asst. U.S. Atty., and Jessie M. Klyce, Asst. Regional Counsel, Dept. of Health and Human Services, on brief for appellee.
Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and BOUDIN, 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. Sec. 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.
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 problems.
In the fall of 1989, the circumstances changed. On October 11, 1989, Dr. Hillier reported that claimant 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.
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. Sec. 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
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."
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...
To continue reading
Request your trial
-
Dornack v. Apfel
...severity and residual functional capacity following the sequential evaluation process. POMS § 24575.005 (1993); see also, Rose v. Shalala, 34 F.3d 13, 16 (1st Cir.1994). Since CFS is commonly diagnosed on a symptomatic basis, rather than by the application of objective medical testing, the ......
-
Arruda v. Barnhart
...nonexmaining physician does not, standing alone, constitute substantial evidence, "this is not an ironclad rule." Rose v. Shalala, 34 F.3d 13, 18 (1st Cir.1994). The amount of weight afforded an advisory opinion "`will vary with the circumstances, including the nature of the illness and the......
-
Locke v. Massanari
...an belief in her decision. CFS can be a very debilitating disease with symptoms out of proportion with any objective evidence. Rose, 34 F.3d at 19 (1st Cir.1994). As a result, the ALJ should not have discredited her testimony. If the ALJ had considered limitations related to fatigue in asse......
-
Ramos-Rodriguez v. Comm'r of Soc. Sec.
...economy that involved simple and repetitive one or two step instructions and tasks that avoid dealing with the public. See Rose v. Shalala, 34 F.3d 13 (1st Cir.1994) ; Rosado v. Sec'y of Health & Human Svcs., 807 F.2d 292, 293–94 (1st Cir.1986). Indeed, the entire concept of work that invol......
-
Case survey
...Brown v. Apfel , 71 F. Supp.2d 28, 39 (D.R.I. 1999), citing Browne v. Richardson , 468 F.2d 1003, 1006 (1st Cir. 1972); Rose v. Shalala , 34 F.3d 13, 18 (1st Cir. 1994); Berrios Lopez v. Secretary of Health & Human Servs ., 951 F.2d 427, 431 (1st Cir. 1991). Whether or not such evidence is ......
-
Synopses of Briefs
...did not suffer the degree of pain she reported or that her doctors should have disbelieved her complaints. See, e . g., Rose v. Shalala, 34 F.3d 13, 18 (1st Cir. 1994) (ALJ’s finding that claimant’s fatigue did not significantly affect his RFC was not supported by substantial evidence where......
-
Issue Topics
...will vary with the circumstances, including the nature of the illness and the information provided to the expert. Rose v. Shalala , 34 F.3d 13, 18 (1st Cir. 1994), citing Berrios Lopez v. Secretary of HHS , 951 F.2d 427, 431 (1st Cir. 1991) (per curiam) (citation omitted). The court further......
-
Assessment of disability issues
...jobs was not supported by substantial evidence. Musto v. Halter , 135 F. Supp.2d 220, 232 (D. Mass. 2001), citing Rose v. Shalala, 34 F.3d 13, 19 (1 st Cir. 1994). The court explained that a hypothetical question which specifically related to the limitations on the claimant’s ability to sit......