Before Aldisert, Van Dusen and Weis, Circuit Judges.
This is an appeal from a final order of the district court granting summary judgment in favor of the Secretary of Health, Education and Welfare against Julia Golofski, a claimant of disability benefits under the Social Security Act. The district court concluded that the Secretary's decision, denying benefits to Golofski, was supported by substantial evidence in its review of the Secretary's action pursuant to § 205(g) of the Act, 42 U.S.C. § 405(g). We vacate and remand for entry of an order remanding the case to the Secretary for further evaluation and consideration.
On March 30, 1976, plaintiff filed with the Social Security Administration an application for disability benefits, alleging that her disability started in February 1952 as a result of removal of her right kidney and arthritis. After denial of disability benefits twice by the administrative authorities*fn1 and as the result of a request for hearing, a hearing was held on October 15, 1976, and benefits were denied again in an administrative decision dated December 21, 1976. The appeals council affirmed this denial in a May 5, 1977, decision. The complaint instituting the action now on appeal to this court was filed June 10, 1977, pursuant to 42 U.S.C. § 405(g).
The above-mentioned 1978 Magistrate's Report (see note 1) concluded with this language:
"An examination of the medical record leads to the conclusion that Drs. Markle and DeSimone both believed that the plaintiff was disabled from any type of gainful employment. This is the only relevant medical evidence in the record. However, the question is one of determining whether or not this condition existed on or before December 31, 1953, the date on which the plaintiff last met the special earnings requirement of the Act.
"In his report of February 24, 1977 (R. 115), Dr. Markle concluded that at the time of the report the plaintiff was totally disabled but some ambiguity existed as to whether she was so disabled on or before December 31, 1953. Where such critical ambiguity exists, it sometimes becomes incumbent upon the Administrative Law Judge to search further. Gachette v. Weinberger, 551 F.2d 39 (3d Cir. 1977). This was not done. However, at the oral argument on the motions presently pending before the Court, counsel for the plaintiff was requested to gain clarification of this matter from Dr. Markle. In a report dated December 3, 1977 and filed as an exhibit in this case, Dr. Markle stated:
". . . on January 4, 1952, I removed her right kidney because of necrosis of this kidney secondary to pyelonephritis and cystic disease. She has polycystic condition of her left kidney which gives her some hypertension and some urinary tract infection from time to time that requires constant medical supervision. I feel that this patient has been totally and permanently disabled since my operation of January 4, 1952 for any type of employment and she should be on disability compensation as her condition is permanent and will require medical supervision and care for the rest of her life.'
"When this is coupled with Dr. DeSimone's statement that he too believes that the plaintiff is totally disabled, the Secretary's conclusion does not appear to be supported by substantial evidence.
"Accordingly, it is respectfully recommended that the cross motions for summary judgment be denied, without prejudice, and that the case be remanded to the Secretary of Health, Education and Welfare for further evaluation and consideration."*fn2
On February 22, 1978, the case was remanded to the Secretary for further evaluation and consideration by order of the district court. Supplemental evidence was added to the administrative record and filed with the district court on August 10, 1978, after a second final decision by the Secretary of Health, Education and Welfare holding that plaintiff was not entitled to social security benefits because she was not disabled within the meaning of that term in the Social Security Act on or before December 31, 1953. Argument was heard in the district court on the renewed motion for summary judgment on September 19, 1978. The U.S. Magistrate filed a supplemental report and recommendation on September 20, 1978, which was adopted as the opinion of the court by its October 13, 1978, order. That order granted the Secretary's motion for summary judgment.
The principal issues in this case are (A) whether there is substantial evidence on the administrative record to show that plaintiff was "disabled" within the meaning of that term under Title II of the Social Security Act, as amended, 42 U.S.C. § 423(d), on or before December 31, 1953, which is the last date she met the special earnings requirement of the Act; and (B), if plaintiff recovered from the disability which existed at the time of her 1952 operation, on what date her previous disability recurred, as indicated by the May 21, 1976,*fn3 medical report of Dr. Markle, and the July 8, 1976, medical report of Dr. DeSimone.
To support a finding of disability, the evidence must show a medically determinable physical or mental impairment which has lasted, or can be expected to last, for a continuous period of not less than 12 months and such impairment must render the plaintiff unable to engage in any substantial gainful employment.*fn4 The regulations promulgated by the Secretary of Health, Education, and Welfare are pertinent in evaluating the evidence presented on the issue of disability. 20 C.F.R. § 404.1503(a) provides in part:
"In the determination of whether or not an impairment in a particular case constitutes a disability . . ., consideration is given to ...