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Chronic Fatigue Syndrome

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Chronic Fatigue Syndrome and Social Security Disability

In response to the growing class of Social Security disability claimants diagnosed with chronic fatigue syndrome (CFS), the Social Security Administration (SSA) issued SSR 99-2p setting forth the SSA’s position on CFS. In general, both the SSA and the courts now recognize CFS as a medically determinable impairment, which can, in some cases, result in disability. The court decisions on this subject are mostly favorable to the claimants, providing the claimants are able to demonstrate that they suffer from CFS of such a severity that it satisfies the disability requirements. The following survey of cases does not include cases where the claimant was not diagnosed with CFS, but instead suffered from “fatigue.”


A diagnosis of CFS does not necessarily result in a disabling impairment. If you have fatigue on a frequent and chronic basis, develop the evidence regarding your functional limitations.


The POMS Guidelines were enacted by the SSA to assist the adjudicators in analyzing CFS cases. The pertinent POMS Guidelines are cited in many cases by the courts, and provide, in relevant part, as follows:

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 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).


Social Security Ruling 99-2p recognizes that CFS may be a disabling impairment and sets forth the specific medical signs and laboratory findings which establish the existence of CFS. SSR 99-2p recognizes that “CFS is a systemic disorder consisting of a complex of symptoms that may vary in incidence, duration, and severity” and “is characterized in part by prolonged fatigue that lasts 6 months or more and that results in substantial reduction in previous levels of occupational, educational, social, or personal activities.” The Ruling follows the Centers for Disease Control (“CDC”) definition of CFS and specifically provides:

Under the CDC definition, the hallmark of CFS is the presence of clinically evaluated, persistent or relapsing chronic fatigue that is of new or definite onset (i.e., has not been lifelong), cannot be explained by another physical or mental disorder, is not the result of ongoing exertion, is not substantially alleviated by rest, and results in substantial reduction in previous levels of occupational, educational, social, or personal activities. Additionally, the current CDC definition of CFS requires the concurrence of 4 or more of the following symptoms, all of which must have persisted or recurred during 6 or more consecutive months of illness and must not have pre-dated the fatigue:

  • Self-reported impairment in short-term memory or concentration severe enough to cause substantial reduction in previous levels of occupational, educational, social, or personal activities;
  • Sore throat;
  • Tender cervical or axillary lymph nodes;
  • Muscle pain;
  • Multi-joint pain without joint swelling or redness;
  • Headaches of a new type, pattern, or severity;
  • Unrefreshing sleep; and
  • Postexertional malaise lasting more than 24 hours.

Within these parameters, an individual with CFS can also exhibit a wide range of other manifestations, such as muscle weakness, swollen underarm (axillary) glands, sleep disturbances, visual difficulties (trouble focusing or severe photosensitivity), orthostatic intolerance (e.g., lightheadedness or increased fatigue with prolonged standing), other neurocognitive problems (e.g., difficulty comprehending and processing information), fainting, dizziness, and mental problems (e.g., depression, irritability, anxiety).

Case Law

First Circuit

In considering the nature of chronic fatigue syndrome, the First Circuit noted that chronic fatigue syndrome is diagnosed partially through a process of elimination and an “extended medical history of ‘nothing-wrong’ diagnoses” is not unusual for CFS patients. Rose v. Shalala, 34 F.3d 13, 18 (1st Cir. 1994). Due to the absence of definitive diagnostic tests, 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. Id.Given the uncontroverted medical evidence that the claimant suffered from CFS, the ALJ’s “blind reliance” on a lack of objective findings was wholly inconsistent with the POMS and other pertinent policy statements. Id. Even though the non-examining physicians’ notations suggested that the claimant’s fatigue did not significantly affect his functional capacity, the ALJ’s findings were not based on substantial evidence because “the subjective severity of a claimant’s fatigue associated with CFS is not something readily evaluated on an algid administrative record.” Id. at 19.

The absence of definitive laboratory findings is an insufficient basis for an ALJ to reject a diagnosis of CFS because “there is no ‘dipstick’ laboratory test for [CFS] . . . so the disease is not ‘per se excluded from coverage because it cannot be conclusively diagnosed in a laboratory setting.’” Hallgring v. Callahan, 975 F. Supp. 84, 89 (D. Mass. 1997), quoting Rose v. Shalala, 34 F.3d 13, 17 (1st Cir. 1994). The court in Hallgring noted that “there are no laboratory tests and no unequivocal physical findings that can be made to determine the presence of [CFS],” and that “[r]outine [laboratory] studies may be normal and are not required to satisfy the definition of [CFS].”Id. at 89-90. The court also stated that a claimant’s healthy appearance is not an adequate indicator of the severity of the illness and, in accordance with First Circuit instructions, “blind reliance on a lack of objective findings” is inappropriate for a finding of “not disabled.” Id. at 90, quoting Rose, 34 F.3d at 17.

Second Circuit

A New York district court noted that CFS is “a disease which, while not specifically addressed in the Listings, may produce symptoms which ‘significantly impair [a] claimant’s ability to perform even sedentary work . . . .’” Fragale v. Chater, 916 F. Supp. 249, 253 (S.D.N.Y. 1996), quoting Rose v. Shalala, 34 F.3d 13, 17 (1st Cir. 1994). When presented with documented allegations of symptoms which are consistent with the symptomology for evaluating CFS, the Commissioner cannot rely on the ALJ’s rejection of the claimant’s testimony based on the mere absence of objective evidence. Id. at 254-55. The Commissioner’s decision in such cases should “reflect a recognition of the increased significance to be given the claimant’s credibility in assessing residual functional capacity.” Id. at 254. In Fragale, the ALJ mischaracterized the claimant’s daily activities and failed to properly resolve inconsistencies as required under the regulations, policies and case law. Id. at 255. The ALJ further erred in rejecting the claimant’s testimony based on a lack of medical diagnoses or objective findings. Id.

The Commissioner’s policy is further reflected in professional criteria for the evaluation and study of CFS, developed by the International Chronic Fatigue Syndrome Study Group.Schaffer v. Apfel, 992 F. Supp. 233, 236 (W.D.N.Y. 1997). This group recommended CFS classification if, after other diagnostic options have been excluded through a series of clinical examinations and testing, the claimant reports persistent or relapsing fatigue for six or more consecutive months with:

  1. impaired memory or concentration;
  2. sore throat;
  3. tender cervical or axillary lymph nodes;
  4. muscle pain;
  5. multi-joint pain;
  6. new headaches;
  7. unrefreshing sleep; and
  8. post-exertion malaise.

Id.citing Fudka, Straus, Hickie, Sharpe, Dobbins and Komaroff, The Chronic Fatigue Syndrome: A Comprehensive Approach to Its Definition and Study, Annals of Internal Medicine, Vol. 121, No. 12, pp. 953-59 (Dec. 15, 1994); Fragale v. Chater, 916 F. Supp.249, 255 (W.D.N.Y. 1996). In Schaffer, the court held that CFS is recognized by the SSA as a disease which, while not precisely addressed in the listings, may produce symptoms which “significantly impair [a] claimant’s ability to perform even sedentary work . . . .” Id. at 237, citing Rose v. Shalala, 34 F.3d 13, 16-17 (1st Cir. 1994); Sisco v. U.S. Dept. of Health & Human Servs., 10 F.3d 739 (10th Cir. 1993); Fragale at 253-54; Thaete v. Sec’y of Health & Human Servs., 804 F. Supp. 914 (E.D. Mich. 1992).

Where the claimant suffered from chronic fatigue syndrome, the court held that an ALJ may not reject the opinions of treating physicians solely because they are based on a claimant’s subjective complaints rather than specific medical signs or laboratory findings. Bischof v. Apfel, 65 F. Supp.2d 140, 146 (E.D.N.Y. 1999). An ALJ also may not find that a claimant’s testimony regarding chronic fatigue syndrome lacks credibility solely because it is unsupported by objective medical findings. Id., citing Fragale v. Chater, 916 F. Supp. 249, 253-54 (W.D.N.Y. 1996); Reddick v. Chater, 157 F.3d 715, 723-24 (9th Cir. 1998); Sisco v. United States Dep’t of Health & Human Servs., 10 F.3d 739, 743 (10th Cir. 1993). In Bischof, the ALJ rejected the treating physician’s assessments of the claimant’s functional capacity, finding them unsupported by “detailed, clinical, diagnostic evidence.” Id.The court noted that every doctor who examined the claimant reported that she complained of a similar collection of symptoms, including unexplained dizziness, fatigue, muscle and joint pain, low grade fever and inability to concentrate, which was consistent with the Commissioner’s policies for evaluating CFS. Id.citing Program Operations Manual at §§ DI 24515.007 (1997); SSR 99-2p. Additionally, at least three Epstein-Barr blood tests yielded positive results, and elevated levels of Epstein-Barr antibodies are among the few laboratory results that might support a diagnosis of CFS as set forth in SSR 99-2p. While a wide variety of clinical tests performed over several years could detect nothing wrong, “‘an extended medical history of ‘nothing-wrong’ diagnoses is not unusual for a patient [with Chronic Fatigue Syndrome].’” Id., quoting Rose v. Shalala, 34 F.3d 13, 18 (1st Cir. 1994). The court held that the ALJ acted without substantial evidence, and in contravention of the Commissioner’s policy regarding CFS and the treating physician rule in incorrectly discounting the claimant’s testimony on the ground that it was unsupported by specific objective evidence and in viewing the lack of objective medical indicators as undermining the treating physicians’ views regarding the severity of the claimant’s symptoms and her capacity to work. Id. at 147.

In Coyle v. Apfel, 66 F. Supp.2d 368 (N.D.N.Y. 1999), the court held that the claimant did not exhibit the requisite symptoms of chronic fatigue syndrome for six or more consecutive months as she only complained of sleep disturbance or stiffness one time and was never diagnosed with at least eleven trigger points that would indicate the presence of fibromyalgia. Id. at 375. Further, even assuming that the evidence did establish one of these conditions, her condition was not so severe as to render her totally disabled. Id. at 375-76.

Third Circuit

In Canals, the claimant sought disability benefits based on her chronic Epstein-Bar Virus Syndrome (EBS), Chronic Fatigue Syndrome (CFS), and other conditions. Canales v. Barnhart, 308 F. Supp.2d 523, 524 (E.D. Pa. 2004). This case was the subject of a prior federal court as well as a prior remand from the Appeals Council. 525. The court reversed and remanded for an award of benefits for the closed period at issue, holding that the ALJ did not adequately discuss all seven regulatory factors in evaluating the claimant’s subjective complaints of pain; failed to analyze the credibility of the third party witnesses; and did not pose hypothetical questions to the vocational expert. Id. at 528.

Fourth Circuit

Although the Fourth Circuit noted that Social Security Ruling 99-2p definitively states that CFS can be a medically determinable impairment when accompanied by appropriate medical evidence, it found that the claimant had not demonstrated medical signs or laboratory findings documenting her illness for six consecutive months. Mastro v. Apfel, 270 F.3d 171, 176, 177 (4th Cir. 2001). While no specific etiology or pathology has yet been established for CFS, the Fourth Circuit held that:

to support an award of benefits, the medical signs must fall within the listed physical symptoms or be consistent with medically accepted clinical practice and the other evidence in the record. Furthermore, these symptoms must have been clinically documented over a period of at least six consecutive months. In the present case, we conclude the ALJ properly took such issues into consideration in coming to his conclusion that Ms. Mastro did not establish an entitlement to benefits.

Id. at 177. The Fourth Circuit further found that the ALJ applied the correct legal standard in finding that the claimant’s CFS was not equivalent to a listed impairment as the record did not reveal the detailed record contemplated for a medical diagnosis based on symptoms, but instead disclosed a “hodgepodge of medical observations and treatments with annual gaps showing no progression in the claimant’s treatment.” Id. at 179.

Sixth Circuit

The Sixth Circuit held that the ALJ’s finding that the claimant who suffered from Epstein-Barr virus and CFS was capable of either returning to her previous work or engaging in other work was not based on substantial evidence. Cohen v. Sec’y of Dept. of Health and Human Servs., 964 F.2d 524, 531-32 (6th Cir. 1992). Even though the claimant attempted to continue her ballroom dancing, enrolled as a part-time law student, passed her final exam, and participated in a national support group for persons suffering from Epstein-Barr virus, her activities did not discredit her testimony, but were examples of her efforts to maintain a semblance of a normal life. Id. at 531.

The Sixth Circuit held that the ALJ’s determination that the claimant was not disabled by CFS was supported by substantial evidence. Buxton v. Halter, 246 F.3d 762, 775 (6th Cir. 2001). In so finding, the court noted that although evidence showed that the claimant suffered from CFS, the medical evidence and evidence of the claimant’s activities was conflicting as to how these ailments affected the claimant; there were conflicting opinions from the claimant’s own treating physicians as to how her impairments affected her and what limitations she had; and thus, it was reasonable for the ALJ to rely upon the testimony of the non-examining medical expert physicians to conclude that the medical evidence did not support the limitations that the claimant allegedly suffered from. The court also noted that Buxton was “not like most other CFS cases, in that Buxton here is not arguing that the ALJ failed to consider her exertional limitations, such as fatigue, etc.” Id. In Gaffney, the court held that the ALJ and the Magistrate Judge failed to apply, or even make reference to, SSR 99-2p and that had the proper analysis been conducted, the evidence documented a clinical correlation for the claimant’s complaints of chronic fatigue and muscle weakness, and that the de minimis step two burden was easily met. Gaffney v. Commissioner of Social Security,277 F. Supp.2d 733, 738 (E.D. Mich. 2003). Accordingly, the ALJ’s finding that the claimant was not disabled as result of chronic fatigue syndrome and fibromyalgia was not supported by substantial evidence. Id.

The district court held that the ALJ improperly discounted the credibility of the claimant suffering from CFS, and failed to include the claimant’s CFS symptoms in the hypothetical question posed to the VE. Reed v. Secretary of Health and Human Servs., 804 F. Supp. 923-24 (E.D. Mich. 1992).

Seventh Circuit

In McCraw v. Apfel, 87 F. Supp.2d 845 (N.D. Ind. 1999), the Commissioner argued that the ALJ properly rejected the opinion of the claimant’s treating physician that he was disabled due to Chronic Fatigue Syndrome because this opinion was based nearly exclusively on the claimant’s subjective complaints, which the ALJ found were not credible. Id. at 854. The court held that the treating physician did not necessarily rely on the claimant’s subjective complaints in finding that he was disabled, noting that CFS has specific symptoms, of which the claimant repeatedly complained, and the record documented certain positive laboratory findings of positive EBV test and an abnormal MRI scan of the brain, which, as set forth in SSR 99-2p, are factors that help establish the existence of CFS. Id. at 856. Since the ALJ did not give any reasons why the laboratory findings did not constitute substantial medical evidence about the claimant’s condition, or why he concluded that the treating physician based his opinion on the claimant’s subjective complaints, the court held that the ALJ failed to properly explain his rejection of this opinion. Id., citing Micus v. Bowen, 979 F.2d 602, 609 (7th Cir. 1992).

Although the ALJ found that the claimant had CFS, he erroneously concluded that the lack of any objective medical evidence to substantiate her symptoms or functional limitations demonstrated that she had the residual functional capacity to perform her past work and any number of sedentary jobs in the economy. Opgenorth v. Shalala, 897 F. Supp. 1199, 1203 (E.D. Wis. 1995). The ALJ’s initial finding that the claimant suffered from CFS required him to conclude that she suffered from the symptoms usually associated with CFS unless there was substantial evidence in the record to support a determination that she did not endure such symptoms. Id. Because the uncontroverted evidence demonstrated that over a course of four years, the claimant complained of and was treated for persistent fatigue, headaches, muscle weakness and a number of other symptoms consistent with CFS, the record did not contain any meaningful evidence to support a finding that the claimant was not suffering from the symptoms of CFS. Id.

A district court in Indiana found that the failure of the claimant’s physician to state a conclusive diagnosis did not support a conclusion that the claimant did not suffer from CFS, as a diagnosis of CFS is achieved partially through a process of elimination, as was done in the instant case. Olson v. Apfel, 17 F. Supp.2d 783, 790 (N.D. Ill. 1998), citing Rose v. Shalala, 34 F.3d 13, 16-18 (1st Cir. 1944); Sisco v. U.S. Dept. of Health & Human Servs., 10 F.3d 739, 744-45 (10th Cir. 1993). The court noted further that “the Commissioner’s own policy statement recognizes the inherent difficulties faced by adjudicators in assessing CFS allegations.” Id.

The ALJ’s decision to accord more weight to three doctors than to one doctor who admitted (1) that claimant’s chronic fatigue was of “unclear etiology” and (2) that previous finding by another doctor of chronic fatigue was a rather nebulous diagnosis, without discernible physical findings or positive tests to validate the diagnosis, was supported by the record. Halbrook v. Chater, 925 F. Supp. 563, 575 (N.D. Ill. 1996).

Eighth Circuit

“Since CFS is commonly diagnosed on a symptomatic basis, rather than by the application of objective medical testing, the subjective representations of a claimant take on special significance, as do the corresponding credibility assessments of the ALJ.” Dornack v. Apfel, 49 F. Supp.2d 1129, 1140 (D. Minn. 1999). In Dornack, the court held that based on a less than fully developed record, the ALJ discounted the claimant’s subjective complaints on a less than competent basis. Id. at 1142. The court specifically held that “the elusive etiology of CFS requires the development of a Record that allows a thorough assessment of the Plaintiff’s physical and mental capabilities.” Id. Because the ALJ’s assessment of the treating physician’s opinion was premised upon his disbelief of the claimant’s subjective symptoms, the court held that this analysis was also flawed. Id. at 1144. The court concluded:

In sum, we part company with the ALJ’s analysis at the point where the ALJ implicitly treats CFS as a simple diagnostic phenomenon whose cause can be identified with some ease. As have Courts before us, we find that ‘[t]he ALJ’s failure to acknowledge the POMS guidelines may be emblematic of the reluctance to acknowledge CFS that appears to underlie his decision.’ . . . Here, the ALJ accepted the diagnosis of CFS by both Dr. Kind, and by Dr. Sandvick, . . . and yet the ALJ does not appear to employ a “totality of evidence” approach — preferring, instead, to tag the Plaintiff’s chronic fatigue to some perceived need for dependency. The cause and effect of the Plaintiff’s fatigability is not resolvable on any simplistic plane . . . .

Id. at 1145, citing Reddick v. Chater, 157 F.3d 715, 728 (9th Cir. 1998). On remand, the court recommended the employment of a medical advisor who could integrate the clinical findings of the various medical providers with the claimant’s subjective complaints. Id.

In Hinders, the Commissioner sought a remand to give the ALJ the opportunity to further evaluate the claimant’s impairments and allegations of fibromyalgia and chronic fatigue syndrome and the claimant argued that the evidence supported a reversal with an award of benefits. Hinders v. Barnhart, 349 F. Supp.2d 1218, 1219 (S.D. Iowa 2004). The court evaluated the evidenced of record and remanded for an award of benefits as “further proceedings will only lead to one outcome, namely that Plaintiff is disabled and entitled to the benefits for which she applied.” Id. at 1226.

Ninth Circuit

In Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998), the Ninth Circuit held that the claimant’s description of her activities, “punctuated with rest,” were fully consistent with CFS which is “characterized by periods of exacerbation and remission.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998), citing Cohen v. Sec’y of Dept. of Health & Human Servs., 964 F.2d 524, 530 (6th Cir. 1992). The court further found that in finding that the claimant had the RFC to perform her past work, the ALJ ignored “the key symptom of CFS, which is persistent fatigue.” Id. at 724. The Ninth Circuit further held that the ALJ’s findings regarding the claimant’s credibility and her CFS symptoms were not adequate to rebut five other doctors who agreed with the CFS diagnosis, none of whom provided any evidence countering a CFS diagnosis. Id. at 723. The court pointed out that the ALJ’s reference to a consulting examiner’s general comment about “the facility with which CFS symptoms can be exaggerated,” was not sufficient to discount the claimant’s credibility, nor could it provide supportive evidence of malingering. Id. Additionally, the court held that the ALJ’s rejection of treating physicians’ opinions because they were based on the subjective complaints of the claimant was “ill-suited to this CFS case,” stating:

The ALJ’s reasoning runs counter to the CDC’s published framework for evaluating and diagnosing CFS. Chronic fatigue is defined as “self-reported persistent or relapsing fatigue lasting six or more consecutive months.” Centers for Disease Control, The Chronic Fatigue Syndrome: A Comprehensive Approach to its Definition and Study, 121 Annals of Internal Medicine 954 (1994). Although CFS is accompanied by symptoms such as body aches, low-grade fevers, memory problems, headaches, and extended flu-like symptoms, which Claimant manifested, the presence of persistent fatigue is necessarily self-reported.

Id. at 725-26. The Ninth Circuit also found that the ALJ’s focus on the claimant’s pain medication and treatment was “misplaced” and inconsistent with the CDC’s declaration that “no definitive treatment for CFS exists,” and that “even more salient” was the ALJ’s failure to consider the POMS guidelines concerning CFS. Id. at 727. As it was clear from the record that the claimant was entitled to benefits, the Ninth Circuit reversed and remanded for an award of benefits, Id. at 728-29.

When the claimant’s testimony regarding her functional abilities was properly credited, coupled with her treating physician’s diagnosis of CFS, the ALJ’s implicit determination that the claimant did not suffer from the severe impairments of chronic fatigue syndrome and fibromyalgia was not supported by substantial evidence. Powell v. Chater, 959 F. Supp. 1238, 1243 (C.D. Cal. 1997). The slightly differing diagnoses of her treating physicians of fibromyalgia and CFS do not provide a specific and legitimate reason for the ALJ to reject either physician’s diagnoses. Id. at 1244.

Where the claimant alleged disability due to fibromyalgia and chronic fatigue syndrome, the court found that the ALJ did not provide sufficient reasons for rejecting the claimant’s pain testimony. Svatos v. Apfel, 44 F. Supp.2d 1113, 1119 (D. Or. 1999). Specifically, the ALJ improperly relied upon “inconclusive medical tests that failed to show ‘objective medical evidence’ regarding her condition.”Id. The court noted that the challenge with CFS cases is that it is a “‘diagnosis of exclusion or ruling out other possible illnesses.’” Id., citing Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 1998). In Svatos, the claimant also submitted a letter to the Appeals Council that she suffered from CFS, was not a malingerer, and was unemployable after July 31, 1988. The court noted that a diagnosis even several years after the actual onset of the impairment is entitled to significant weight, and that “[t]hese findings are particularly apt given the nature of CFS and the diagnostic challenge that it presents.” Id., citing Dousewicz v. Harris, 646 F.2d 771, 774 (2d Cir. 1981). The court held that the ALJ and Appeals Council failed to provide clear and convincing reasons for rejecting the treating physician’s diagnosis of the claimant. Id.

An Oregon district court confirmed that there is no “dipstick laboratory test” for diagnosing CFS and there was no “suggestion in [CFS cases] that this disease – or any other disease – is per se excluded from coverage because it cannot be conclusively diagnosed in a laboratory setting.” Shore v. Callahan, 977 F. Supp. 1075, 1079 (D. Or. 1997), citing Sisco v. U.S. Dept. of Health & Human Servs., 10 F.3d 739, 744 (10th Cir. 1993). The court upheld the treating physician’s reliance on the “operational diagnosis technique used by the medical community” in his analysis of the claimant’s CFS. Id. at 1079.

The ALJ’s determination that the claimant suffering from CFS, who could not perform the full range of sedentary work, could still perform other jobs in the national economy was not based on substantial evidence where it was inconsistent with the medical evidence in the record and the claimant’s testimony. Irwin v. Shalala, 840 F. Supp. 751, 770 (D. Or. 1993).

Tenth Circuit

The ALJ improperly discounted the claimant’s unrebutted testimony and improperly discredited her treating physicians’ diagnosis of CFS based on the lack of conclusive laboratory tests. Sisco v. United States Dep’t of Health & Human Servs., 10 F.3d 739, 744 (10th Cir.1993). The court noted that the medical community only began to recognize CFS as a disease in 1988. Id. at 745.

Although the Tenth Circuit recognized that there is no “dipstick” laboratory test for CFS, the retrospective opinion of the claimant’s treating physician that the claimant suffered from CFS prior to the claimant’s date last insured was insufficient without evidence of actual disability. Adams v. Chater, 93 F.3d 712, 714-15 (10th Cir. 1996), citing Sisco v. U.S. Dep’t of Health & Human Servs., 10 F.3d 739, 744-45 (10th Cir. 1993).

Because the claimant’s subjective complaints are consistent with the symptomatology for CFS recognized by the Commissioner, are documented in medical records, and are corroborated by testimony from family members, and since the ALJ relied upon evidence that either was not significant or reliable in the context of CFS, the ALJ’s finding that the claimant was capable of performing her past relevant work and sedentary work was not supported by substantial evidence. Vogt v. Chater, 958 F. Supp. 537, 548 (D. Kan. 1997).

In discounting the effect of CFS by calling it a “provisional diagnosis,” the ALJ improperly discounted the findings of the experts contained in the record and substituted his judgment for that of persons who possess expertise beyond his own. Thaete v. Shalala, 826 F. Supp. 1250, 1252 (D. Colo. 1993).

Eleventh Circuit

In Vega, the claimant argued that despite the evidence of record documenting that she was diagnosed with CFS, the ALJ failed to find that she suffered from this impairment. Vega v. Comm’r of Soc. Sec., 265 F.3d 1214, 1219 (11th Cir. 2001). The Eleventh Circuit held that in light of the diagnosis of CFS in the record, the “ALJ should have acknowledged it in his evaluation and discussed why he disregarded it.” Id. As it was “clear” that the ALJ did not properly consider the diagnosis of CFS, the Eleventh Circuit held that the ALJ did not “meaningfully conduct an analysis of the effect of CFS on Vega’s ability to work.” Id. The court noted that while the Eleventh Circuit had not addressed the nature of CFS and the factors to be considered by the ALJ when evaluating a claim of CFS, other circuits have “remanded cases when the ALJ’s conclusions did not fully account for the nature of CFS and its symptoms.” Id.citing Reddick v. Chater, 157 F.3d 715, 722-23 (9th Cir. 1998); Sarchet v. Chater, 78 F.3d 305, 307-09 (7th Cir. 1996); Rose v. Shalala, 34 F.3d 13, 17-19 (1st Cir. 1994). The court in Vega cited extensively from SSR 99-2p, noting that this Ruling recognizes that “there are no specific laboratory findings that are widely accepted as being associated with CFS. 1219-20, citing SSR 99-2p, The Court concluded that the ALJ appeared:

to have rejected CFS as a diagnosis because there is no definite test or specific laboratory findings to support such a diagnosis. This lack of testing, however, does not preclude the diagnosis of CFS. Because the ALJ ignored the symptoms of CFS, as well as Vega’s other subjective complaints regarding symptoms related to CFS, the ALJ did not meaningfully conduct an analysis of the effect of CFS on Vega’s ability to work.

Id. at 1219-20.

CFS is “‘recognized by the Social Security Administration as a disease which, while not specifically addressed in the Listings, may produce symptoms which significantly impair [a] claimant’s ability to perform even sedentary work . . . .’” Sabo v. Chater, 955 F. Supp. 1456, 1461 (M.D. Fla. 1996), quoting Fragale v. Chater, 916 F. Supp. 249, 253-54 (S.D.N.Y. 1996).Given the nature of this impairment, “it is not unusual for a person suffering from chronic fatigue syndrome to undergo physical examinations resulting within normal limits,” noting that the disease is diagnosed, in part, through a process of elimination. Id. at 1462. Symptoms such as insomnia, poor sleep, depression, headaches, pain, sore throat and fatigue are consistent with CFS. Id. at 1463. Where the claimant manifested symptoms of CFS, and medical sources supported the diagnosis of CFS, the court remanded the matter for further proceedings with instructions to the ALJ to apply the POMS criteria for evaluating CFS. Id.

An Alabama district court noted that the ALJ found that the claimant suffered from CFS and fibromyalgia but disregarded the opinion of her treating physician regarding residual functional capacity, and found the claimant capable of sedentary work. Lewis v. Massanari, 176 F. Supp.2d 1283, 1286 (S.D. Ala. 2001). The court disagreed and found the ALJ’s conclusions were not supported by substantial evidence. Id. The court noted that according to her doctor, the claimant met all criteria as set out by the Centers for Disease Control for CFS. Id. The court also noted: “CFS is a disease diagnosed by a process of elimination; it is only after other disorders and diseases are discarded that a doctor can diagnose CFS as it is not amenable to objective medical testing.” Id.

In analyzing the case of a claimant who suffered from migraine headaches, the court commented that the Commissioner had “for years” accepted CFS as a medically determinable impairment, without requiring laboratory findings. Ortega v. Chater, 933 F. Supp. 1071, 1075 (S.D. Fla. 1996).

D.C. Circuit

The court observed that “the ALJ did not seem to understand the symptoms the claimant reported, including joint and muscle pain, impaired memory and concentration, and a general feeling of lassitude, which are certainly consistent with the diagnosis of chronic fatigue syndrome which the Secretary of Health and Human Services has adopted for evaluating claims premised on chronic fatigue syndrome.” Martin v. Apfel, 118 F. Supp.2d 9, 18 (D.D.C. 2000),citing Fragale v. Chater, 916 F. Supp. 249, 253 (W.D.N.Y. 1996). Thus, the court concluded that since the physician’s diagnosis was supported by the symptoms he observed, the ALJ’s contrary conclusion was unsubstantiated and cannot stand. Id.

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