Abdus-Sabur v. Callahan

Opinion

[NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit

No. 98-2242

NAIMA ABDUS-SABUR,

Plaintiff, Appellant,

v.

JOHN J. CALLAHAN, Acting Commissioner of the Social Security Administration,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Robert W. Lovegreen, U.S. Magistrate Judge]

Before

Lynch, Circuit Judge, Bownes, Senior Circuit Judge, and Lipez, Circuit Judge.

Donna M. Nesselbush and Green, Greenberg & Nesselbush on brief for appellant. Margaret E. Curran, United States Attorney, Michael P. Iannotti, Assistant United States Attorney, and Sara Gardiner Kilkenny, Assistant Regional Counsel, Social Security Administration, on brief for appellee.

July 27, 1999

Per Curiam. Claimant Naima Abdus-Sabur challenges a decision of the Acting Commissioner of Social Security ("Commissioner") denying her applications for disability insurance benefits and supplemental security income benefits. For the following reasons, we think that a remand is required. Claimant applied for benefits alleging that chronic fatigue syndrome ("CFS") and osteoarthritis disable her from working. After a hearing, an administrative law judge ("ALJ") concluded that the evidence fails to establish a diagnosis of CFS. The ALJ found that claimant suffers from mild arthritis, arthralgias, myalgias, and possible CFS, and that her condition is severe. However, the ALJ denied disability at step four of the sequential analysis, concluding that claimant is capable of light work activity and can perform her past relevant jobs as a cleaner or as a receptionist. The Appeals Council denied review, thereby making the decision of the ALJ the final decision of the Commissioner. Claimant then sought judicial review. The parties consented to have the case decided by a magistrate judge, see 28 U.S.C. 636(c), who upheld the denial of benefits. This appeal followed. Judicial review of the Commissioner's decision is authorized by 42 U.S.C. 405(g) and 1383(c)(3). "Our review is limited to determining whether the ALJ deployed the proper legal standards and found facts upon the proper quantum of evidence." Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999). The ALJ's findings of fact are conclusive when supported by substantial evidence and reached through the correct legal standards. See id.; 42 U.S.C. 405(g), 1383(c)(3). In the instant case, claimant testified that she suffers from chronic sore throats, upper respiratory infections, low grade fevers, swollen glands, pain all over her body, severe fatigue, and disrupted sleep. She testified that she has difficulty sitting or standing for long periods of time, that she cannot write because her fingers "won't work," and that she drops things because she cannot grasp. She also testified that she has to lie down frequently, and that the pain is sometimes so great that she stays in bed all day. As for her activities, claimant testified that she can drive, though, she said, "it's difficult sometimes." She stated that she manages grocery shopping with the help of her daughter, and that she does some cleaning (though not the "major parts"). She also stated that she cooks, but that it's usually "microwaveable stuff." She attends worship services at her mosque, when she can. Claimant's own physicians--Dr. Gonsalves and Dr. Clough--have diagnosed her as suffering from CFS and they have indicated that her physical capacities are quite limited. The most liberal assessment by Dr. Gonsalves is that claimant is capable of sitting and standing in combination for no more than four hours. Dr. Clough indicated that claimant is capable of sitting and standing in combination for less than one hour. Both Drs. Gonsalves and Clough have also indicated that claimant has various non-exertional limitations including, inter alia, an inability to use her hands for repetitive motion. Claimant was also examined by two physicians in connection with her applications for benefits. Dr. Pharmakidis examined claimant on June 3, 1993. He wrote that, given her history and "unremarkable" physical examination, he would "have a great deal of difficulty to make a statement" that she has CFS. Dr. Robin conducted a mental examination on September 1, 1993. He diagnosed claimant as suffering from major depression but indicated the need to rule out CFS. In addition, Dr. Pella, a non-examining physician, reviewed the medical record and testified at the hearing. Dr. Pella addressed whether claimant meets the criteria established by the Centers for Disease Control and Prevention ("CDC") for CFS. He opined that "the diagnosis [of CFS] is not established from the record as yet." Among other things, Dr. Pella stated that there is little in the way of physical findings in the record. When asked to explain what physical findings he was referring to, Dr. Pella stated that the "soft ones" are "pharyngitis [inflammation of the throat], lymphadenopathy [disease of the lymph nodes], and documented fever." In reaching his conclusion that a diagnosis of CFS is not substantiated, the ALJ relied heavily on "Dr. Pella['s] state[ment] that the claimant failed to meet the CDC criteria for a diagnosis of [CFS]." In justifying his conclusion as to claimant's residual functional capacity, the ALJ also relied, in part, on the testimony of Dr. Pella, whom, the ALJ stated, "maintained that the claimant was capable of performing light work activity." The ALJ explained that he discredited claimant's allegations as to the severity of her symptoms in light of the fact that "the record fails to clearly document that claimant meets the CDC criteria for [CFS]." He also relied on evidence in the record that claimant "still manages to cook, clean, do laundry, go grocery shopping, attend [religious services], and teach a class at her [mosque] once a week." As an initial matter, we note that the Social Security Administration has recently issued a ruling designed to "restate" and "clarify" the policies of the Administration for evaluating CFS cases. See SSR 99-2p, "Titles II and XVI: Evaluating Cases Involving Chronic Fatigue Syndrome." The ruling issued after this appeal was submitted. In a post- briefing filing, claimant suggests without developed argumentation that the new ruling applies. In a response, the Commissioner takes the contrary position. We need not resolve the issue because we have concluded that, under the peculiar circumstances of this case, a remand would be required in any event. The new ruling is helpful, however, insofar as it provides a summary of the current CDC working case definition of CFS. Of particular note, the current definition--which was revised in late 1994--is entirely symptom based. See SSR 99- 2p. By contrast, the earlier (1988) definition included certain "physical criteria," namely, low-grade fever, palpable or tender lymph nodes, and inflammation of the throat, in addition to a list of symptoms. See Report to the Senate Appropriations Committee for the Departments of Labor, Health and Human Services, Education and Related Agencies on the Social Security Administration's Activities Relating to Chronic Fatigue Syndrome (March 1991), included as an attachment to Fay E. Fishman, Chronic Fatigue Syndrome and Social Security Disability, 42 West's Social Security Reporting Service 789, 808-10. Claimant suggests that Dr. Pella and Dr. Pharmakidis employed out-moded CFS guidelines. We agree that this is a serious possibility. The CDC definition of CFS was revised just months before the hearing, so it would not be surprising if Dr. Pella were unaware of the changes. In elaborating on what he thought is absent from the present record but needed in order to establish a diagnosis of CFS, Dr. Pella appears to refer to the "physical criteria" included in the 1988 definition but dropped from the 1994 revised definition. It is safe to assume that Dr. Pharmakidis did not employ the current definition since his opinion was rendered while the old definition was in effect. The Commissioner, while not taking issue with the possibility that these doctors employed out-moded guidelines, nonetheless contends that it does not matter. In particular, the Commissioner suggests that, since the ALJ found that claimant suffers from "possible" CFS and continued on to evaluate her residual functional capacity, the outcome would have been the same. The Commissioner further argues that there is substantial evidence to support the finding that claimant is capable of light work, including evidence as to her activities. Contrary to this suggestion, we do not think that we can conclude that the ALJ would have reached the same ultimate conclusion. In rejecting the physical capacity assessments of Drs. Clough and Gonsalves, as well as claimant's own statements about the severity of her symptoms, the ALJ relied on his intermediate conclusion that the diagnosis of CFS is not substantiated. Because CFS can be a very debilitating disease with symptoms out of proportion with any objective evidence, see Rose v. Shalala, 34 F.3d 13, 19 (1st Cir. 1994), the ALJ's ultimate conclusion might have been different if his intermediate conclusion had been different. Indeed, a finding that claimant has CFS might have had some impact on the ALJ's evaluation as to whether her level of activity indicates an ability to work. Cf. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (recognizing that a pattern of sporadic activities punctuated with a need for rest is fully consistent with CFS); Cohen v. Secretary of Health & Human Servs., 964 F.2d 524, 530- 31 (6th Cir. 1992) (similar). A final consideration is whether we can affirm on the basis stated by the magistrate judge. We think not even if we assume without deciding that claimant could otherwise be found "not disabled" based on a capacity for part-time work. In reaching his conclusion, the magistrate judge relied on a physical capacity assessment of Dr. Gonsalves which indicates that claimant can sit and/or stand in combination for up to three hours but also indicates that she has non-exertional limitations. There is no evidence in the record as to whether the non-exertional limitations are compatible with claimant's past relevant work. Nor is there any evidence as to whether other work is available for someone with these non-exertional limitations. In sum, in light of the uncertainty as to whether Dr. Pella evaluated the medical record under the current CDC guidelines, and the certainty that Dr. Pharmakidis did not, we are unable to conclude that their opinions constitute substantial evidence to support the ALJ's decision. Nor are we able to conclude with confidence that the ALJ's decision would have been the same if these physicians had employed current guidelines and reached a different decision as to whether claimant has CFS. Accordingly, the judgment of the district court is vacated and the case is remanded to the district court with instructions to remand to the Commissioner for further findings and/or proceedings not inconsistent with this opinion. Vacated and remanded.