

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 94-1013

                        GARY M. ROSE,
                    Plaintiff, Appellant,

                              v.

                DONNA E. SHALALA, SECRETARY OF
         THE DEPARTMENT OF HEALTH AND HUMAN SERVICES,
                  UNITED STATES OF AMERICA,
                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

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

                            Before

                     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

                             -2-

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

                             -3-

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 "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

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.

                             -4-

          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

                             -5-

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

                             -6-

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  &amp; 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).                      

                             -7-

          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                                                             

                             -8-

          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

                             -9-

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

                             -10-

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

                             -11-

                      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).                            

                             -12-

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

CFS).  

          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

                             -13-

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.

                             -14-

          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

                             -15-

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                                                     

                             -16-

          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

                             -17-

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.                                      

                             -18-
