regard to the evidence relating to the ovarian cyst operation, the hysterectomy, and any possible mental impairment. He further stated that it was probable that the claimant left work in 1964 to care for her family and that, in addition, her failure to file a claim for herself in 1969 when she filed for her husband was probative of the fact that she, at that time, did not consider herself disabled. However, these findings do not amount to a finding of non-disability.
The Hearing Examiner's failure to evaluate and make findings with regard to the evidence presented in the physicians' reports, at least some of which relate to the period when claimant was still insured, except for the statements noted above, persuades the Court that the Hearing Examiner applied an incorrect legal standard. Considering all the statements of the hearing examiner in this regard, in light of his entire decision, we conclude that he believed that the reports were inadequate evidence of a disability because of their lack of objective findings. Thus, remand is appropriate both because it is unclear what the agency decision means, United States v. Chicago, M., St. P. & P.R. Co., 294 U.S. 499, 510-511, 55 S. Ct. 462, 467, 79 L. Ed. 1023 (1935), and because, by reason of the application of an incorrect standard of law, critical fact findings were not made. Frith v. Celebrezze, 333 F.2d 557, 561 (5th Cir. 1964); Egan v. Gardner, 277 F. Supp. 929, 932 (N.D. Cal. 1968); Goodwin v. Gardner, 250 F. Supp. 454, 457 (N.D. Cal. 1966).
The statements of the physicians are to be considered in light of the rule that medical evidence, though entirely subjective, may establish a disability; and, the evidence of impairment or impairments therein, is to be considered with any other evidence of impairments, to determine cumulatively whether claimant suffered from a disability while still insured. Bittel v. Richardson, supra.
Thus, we remand in order for the physicians' evidence to be fully considered without it being inherently discounted simply for its subjectivity. The plaintiff's evidence, of course, must satisfy the requisite burden of proof.
Bittel v. Richardson, supra. Moreover, it is the duty of the Hearing Examiner to make the necessary findings of fact and, in connection therewith, to evaluate the credibility of witnesses, including the opinions of physicians, and to resolve conflicts and inconsistencies in the evidence. Townsend v. Secretary of Health, Education and Welfare, 325 F. Supp. 982, 986 (E.D. Ky. 1971). The Secretary need not accept as credible the entire subjective testimony of a claimant nor of a doctor. Reyes Robles v. Finch, 409 F.2d 84, 87 (1st Cir. 1969) but he must, at least, deal with such testimony and make the appropriate findings. Reyes Robles v. Finch, supra ; cf. Kennedy v. Richardson, 454 F.2d 376, 378 (3rd Cir. 1972). Of course, the subjective testimony of the claimant also must be considered and evaluated in a similar manner.
There are, of course, circumstances where subjective evidence alone can be sufficient to prove disability or, at least, raise a serious question such that a systematic evaluation thereof is necessary to afford a basis for a finding of nondisability. Ber v. Celebrezze, 332 F.2d 293, 298-300 (2nd Cir. 1964).
Finally, we note that claimant's counsel argues that the application of the regulations in this case will result in a travesty of justice, for the doctors the claimant saw, at the time she was still insured, did not keep the types of records that are required nor does plaintiff have the types of illnesses that are verifiable by laboratory or objective tests. Of course, we have already explained that subjective medical evidence is not to be discounted solely because of its non-objective nature. This goes far toward meeting counsel's contentions. Nevertheless, at the same time, such evidence will be of a type where credibility will be a significant factor in evaluation, and, consequently, great deference is given to the Hearing Examiner's evaluation and resulting conclusions. Moreover, the absence of objective evidence is not necessarily without any significance whatsoever. To the extent the Hearing Examiner thinks objective proof of an illness is applicable, he may well consider its absence probative. The plaintiff has the burden of proof in this regard. Moreover, the Hearing Examiner may think that the possibility of objective proof may have relevance even in this case despite the fact the insured status ended in 1969; for example, as somewhat corroborative of any subjective evidence.
We make the above comments because of the fact that since we must remand to the Secretary, we will do so with instructions that either party be permitted to offer further evidence if they so desire. Cf. Nelms v. Gardner, 386 F.2d 971, 973 (6th Cir. 1967).