untimely, so the final decision on review is of the ALJ of February 24, 1975 (Tr. 4).
Other than the medical reports indicated above and plaintiff's own testimony, the only other evidence before the ALJ was the expert testimony of Dr. Philip Spergel, a vocational psychologist. He offered his expert opinion, based on all record evidence, that claimant could do certain "light" work. He stated that he could return to his security guard or insurance sales jobs (Tr. 58). The limitations taken into consideration included only physical ones; no mention was made of plaintiff's alleged psychiatric difficulties, although he stated he had read all medical reports in evidence. There was no cross-examination of Dr. Spergel, as plaintiff was not represented by counsel.
Dr. Spergel also testified that, based on plaintiff's education, vocational background and age, he would also be qualified for certain clerical jobs (Tr. 59). He stated that all the jobs he had mentioned were available in the plaintiff's home area in considerable numbers (Tr. 60).
Plaintiff first contends that the ALJ used the wrong legal standard in reaching his decision. The test for disability is two-pronged: (1) a determination of the extent of physical or mental impairment and (2) a determination whether that impairment results in an inability to engage in substantial gainful activity. Stancavage v. Celebrezze, 323 F.2d 373 (3d Cir. 1963); Baith v. Weinberger, 378 F. Supp. 596 (E.D. Pa. 1974). The burden for proving disability is on the claimant. Farmer v. Weinberger, 368 F. Supp. 1 (E.D. Pa. 1973). Plaintiff did show the extent of his impairment through the medical reports. However, under the statute as amended in 1967, plaintiff must show that "he is not only unable to do his previous work but cannot, considering his age, education and work experience, engage in any other kind of substantial gainful work . . ." 42 U.S.C. § 423(d)(2)(A) (emphasis added). In Woods v. Finch, 428 F.2d 469 (3d Cir. 1970), the Court upheld a hearing examiner's disallowance of disability benefits where plaintiff's condition would still allow him to do sedentary work. This statute imposes a "very harsh burden," but, as the Court of Appeals noted, "it is clear that we are bound by its wording." 428 F.2d at 470.
The ALJ found, based on all the testimony, that plaintiff is still able to do sedentary work. Therefore he is not "disabled" under the statute. Even if plaintiff is in fact unable to find such work, this finding conforms to this Circuit's interpretation of the law. In Gentile v. Finch, 423 F.2d 244 (3d Cir. 1970), the claimant was physically able to do light work, but the vocational expert said that he would not be hired even for that due to his condition. The Court of Appeals reversed the district court's holding and held that Congress had stated "in unequivocal terms that the intent of the amended definition was to make it clear that unwillingness of employers to hire the handicapped should not be considered in determining disability." 423 F.2d at 246. Therefore, it is clear that it is only the plaintiff's actual ability to do any type of work, not just his prior job, that finally determines whether or not he can be considered disabled. It is this standard that the ALJ used and that is the proper one in this circuit.
Second, plaintiff contends that there is not substantial evidence in the record to support the conclusion. The ALJ's result appears to turn on two principal pieces of evidence: Dr. Barenberg's report that there is not a psychiatric disorder and Dr. Spergel's testimony that plaintiff is still able to perform light or sedentary work. Both of these opinions amount to evidence which is capable of supporting the ALJ's conclusions, even in the face of the contradictory record evidence.
This Court is very limited in its review of the ALJ's decision. The statute, 42 U.S.C. § 405(g), requires that the agency findings be deemed conclusive if supported by substantial evidence.
"'Substantial evidence' means evidence which a reasoning mind would accept as sufficient to support a conclusion. 'It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance ' of the evidence. Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)." Ginsburg v. Richardson, 436 F.2d 1146, 1148 (3d Cir. 1971).