oxygenation of the blood) without hypercapnia (excessive carbon dioxide in the blood). The report also stated that there was no peripheral edema, no attacks of asthma, no chest pain, and no obvious distress.
Mr. Robert Cherniak, a vocational expert, reviewed all the documentary evidence and attended the hearing. Asked to assume the plaintiff could do sedentary work, he testified that Mr. Quinn could perform jobs of hand packaging, hand assembling, and order clerk, if the environment was controlled. Air conditioning was one example of such control. Jobs in these categories existed in the local and national economy at all times pertinent here. Mr. Cherniak's opinion took into account the plaintiff's tenth grade education and most recent prior work experience as a self-employed bartender and insurance salesman.
Having evaluated all of the evidence, the hearing examiner concluded that plaintiff could perform work of a sedentary nature on a sustained basis providing the place of employment was air conditioned. A finding of disability was therefore refused.
The claimant contends that a Social Security Administration regulation, 20 CFR 404.1502(a), requires the award of benefits because his pulmonary function studies show evidence of spirometric airway obstruction within the limits of the table in 20 CFR Subpart P, appendix, section 3.02.
This argument is misleading. First, the full text of 20 CFR 404.1502(a) provides that decisions as to whether or not an impairment constitutes a disability shall be based upon all the facts in the case. Medical evidence alone " can " support a finding of disability but does not require this conclusion. Second, plaintiff's test results show an impairment but not necessarily a disability. The figures from the July 13, 1971, study are the worst but were still classified as moderate by the examining physician. He concluded that "the claimant suffers from chronic obstructive lung disease of an emphysema type and that the same is moderate in degree." However, he also decided that plaintiff's condition was not so disabling that he could not work. Plaintiff's only evidence on this ultimate conclusion was his complaint of shortness of breath. This was insufficient to carry the burden of proof which the law imposes upon him.
The claimant did establish that he was unable to return to any of his prior occupations, that is, life insurance salesman, tavern owner, bartender, or mechanic's helper. However, the Secretary showed the availability of work which claimant could perform. The hearing examiner accepted the testimony of Mr. Cherniak, the vocational expert, that sedentary jobs within controlled atmospheric conditions exist in the community where claimant resides and in the national economy.
Plaintiff contends that he has established his inability to obtain employment by reason of his physical condition
because four or five firms have refused to hire him. He argues that a reasonable job opportunity must be available to him citing Thompson v. Celebrezze, 238 F. Supp. 873 (N.D. Tex. 1965); Isom v. Ribicoff, 204 F. Supp. 572, 575 (W.D. Va. 1962); and Parfenuk v. Flemming, 182 F. Supp. 532, 536 (D. Mass. 1960). See also Bujnovsky v. Celebrezze, 343 F.2d 868, 870 (3rd Cir. 1965) and Janek v. Celebrezze, 336 F.2d 828, 833-834 (3rd Cir. 1964).
The 1968 amendment to the Social Security Act changed the law in this regard. As set forth in 42 U.S.C. 423(d)(2)(A), the test for a disability is not whether an individual will be hired or whether a job vacancy exists. The issue is not what employer preferences may be. Rather, an individual is disabled only if his impairments are of such severity that he cannot, considering his age, education, and work experience, engage in any substantial work existing in the national economy.
So far as Mr. Quinn is concerned, the hearing examiner had before him the medical reports as well as the testimony of the vocational expert. On this record, he concluded that the claimant suffered from a moderate degree of chronic obstructive pulmonary disease but that jobs which he could perform were available. While I might not have reached this same decision, I cannot say it was incorrect: Palmer v. Celebrezze, 334 F.2d 306, 308 (3rd Cir. 1964); 42 U.S.C. § 405(g).
Although the act may impose a "very harsh" burden upon the plaintiff, the courts are bound by the language Congress used. Woods v. Finch, 428 F.2d 469, 470 (3rd Cir. 1970); Cooper v. Finch, 433 F.2d 315 (5th Cir. 1970); and Gentile v. Finch, 423 F.2d 244, 248 (3rd Cir. 1970). Accordingly, the Secretary's denial of disability benefits was supported by substantial evidence and must stand. Ellis v. Finch, 333 F. Supp. 146, 147 (E.D. Pa. 1971).