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December 21, 1978

Albina MEMOLI, Plaintiff,
Joseph CALIFANO, Secretary, Department of Health, Education and Welfare, Defendant

The opinion of the court was delivered by: CARTER

This case involves a denial of social security disability benefits. Both parties have moved pursuant to Rule 12(c), F.R.Civ.P., for a judgment on the pleadings, the plaintiff demanding that the court order an award of the requested benefits, and the government seeking dismissal of the complaint. The question presented is whether the Secretary of Health, Education and Welfare, without the support of qualified medical evidence or opinion, may disregard medical proof presented by a claimant in the process of determining when a disability has terminated. We hold that he may not, since such a determination is not founded on substantial evidence. Judgment is therefore entered for the plaintiff, and this claim is remanded to the Secretary of Health, Education and Welfare for further proceedings.


 The plaintiff, Albina Memoli, is a 54 year-old emigrant from Italy with a ninth grade education. Prior to becoming disabled she had worked exclusively as a sewing machine operator. On May 30, 1975, she left her job when her physician advised her to enter the hospital for surgery. On July 12, 1975, plaintiff underwent an exploratory operation, which was followed by a total hysterectomy and removal of both ovaries when cancer was discovered. She then received radiation therapy to the abdomen and pelvis from July 15 until August 15, 1975.

 The Department of Health, Education and Welfare ("Department") rejected Memoli's initial claim for disability benefits on September 25, 1975, and it denied reconsideration of that decision on February 19, 1976. Plaintiff then applied for a hearing, but she waived her right to appear and requested a decision based upon the information in the record. The evidence before the Administrative Law Judge ("ALJ") at that time consisted of a report from the chief of radiotherapy at Misericordia Hospital where plaintiff was treated, three reports by her attending physician, Dr. George Muscillo, and plaintiff's subjective statements regarding her pain and disability. The report from Misericordia primarily sets forth the details of plaintiff's diagnosis and treatment and refers her back to Dr. Muscillo for further care. *fn1" It also indicates that she suffered symptoms of nausea and incontinence as a result of the radiation therapy. Dr. Muscillo's first report is a Social Security questionnaire dated September 2, 1975. *fn2" There, he indicated that there had been no metastasis, but he recorded his prognosis as: "guarded recurrence is entirely possible, however." He also reported that a chest X-ray and electrocardiogram appeared normal. In a note dated January 14, 1976, Dr. Muscillo indicated that his patient had complained of backache and urinary frequency. *fn3" Finally, plaintiff submitted a report dated September 1, 1976, in which Dr. Muscillo stated that he had examined her in January, 1976, and found that there was a possible recurrence of her tumor, although the X-rays were not conclusive of skeletal metastasis. *fn4" He also observed that she was suffering from a severe lumbosacral sprain, but he characterized his patient's response to treatment as excellent.

 In addition to this medical evidence the record contained subjective statements by plaintiff describing her symptoms. In a report to the Social Security Administration filed on August 12, 1975, Memoli reported that her condition limited her ability to do housework, and she noted that her doctor had instructed her to avoid doing any strenuous lifting and to get complete rest. *fn5" She further indicated that the surgery and subsequent radiation treatments left her very weak, thus preventing her from resuming her previous employment. *fn6" In requesting reconsideration of her application on February 3, 1976, Memoli stated that her condition had not improved, that she had developed an inflammation of her spine, and that she was unable to work. *fn7" In her request for a hearing, plaintiff again stated that she was unable to work. *fn8"

 In the opinion that the ALJ issued on September 8, 1976, he first summarized the evidence submitted by the plaintiff. *fn9" He then stated: *fn10"

"Pertinent here is an excerpt from the classic work Understanding Surgery by Robert E. Rothenberg, M.D., F.A.C.S.:
"Surgery of the Female Reproductive System.

 The ALJ went on to remark that, "(although) physical defects may cause limitation of functional activity, it does not follow that it results in a complete limitation of industrial usefulness." *fn11" He concluded that the plaintiff's disability commenced on June 1, 1975 and ended as of May 31, 1976.

 Plaintiff requested review of this decision by the Appeals Council on the grounds that she continued to be disabled, and she submitted two additional items of medical evidence. The first was a letter from Dr. Muscillo describing conclusions that he had reached as a result of an examination of the patient on September 8, 1976. *fn12" He stated that Memoli's complaints included urinary frequency, weakness, backache, and anxiety. Her blood count showed mild anemia, but her X-rays were essentially negative. Dr. Muscillo concluded:

"Although there is no positive evidence of recurrence of tumor, this can't be entirely ruled out because of her symptoms.
She will also see a psychiatrist soon. In view of the above, it would be difficult for her to maintain work at this time."

 The second supplementary letter was written by Dr. Zach Shaye, a psychiatrist who examined Memoli on December 1, 1976. *fn13" He determined that:

"This patient is suffering from a psychoneurotic disorder secondary to her physical illness, which renders her unsuitable for gainful employment. This condition ...

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