
USCA1 Opinion

	




                            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  & 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-
