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TORELLI v. WEINBERGER

July 2, 1976

FRANK TORELLI, JR.
v.
CASPAR WEINBERGER, SECRETARY OF HEALTH, EDUCATION AND WELFARE



The opinion of the court was delivered by: HIGGINBOTHAM,

 The claimant was born on July 7, 1928. Other than completion of the ninth grade and one thousand hours of instruction in a beauty culture school, the claimant had no further education and/or training. After graduation from beauty culture school in 1948, claimant worked solely as a hairdresser. In May, 1972 Torelli was forced to cease his work for a time in order to undergo a right radical neck dissection and total laryngectomy. This surgical procedure was required in order to treat the claimant for cancer of the larynx. By October, 1972 Torelli had resumed his work, on a part-time basis, as a hairdresser and continued to perform in that capacity until June, 1973. At that time he again underwent surgery for the removal of a benign, but inflamed, lymph node from his right shoulder.

 As a result of his first operation, the claimant was forced to master the art of esophageal speech. Torelli believed that he was furloughed from his part-time job because the customers found his manner of speech and breathing offensive. (Tr. 53-55).

 The claimant testified that he was unable to undertake substantial gainful employment after July 1, 1973 because of the following physical limitations: that he was unable without assistance, to raise his right arm more than forty-five degrees from his right side (Tr. 37); that his hand and then his entire arm became numb after a few moments of keeping his right hand in one position (Tr. 37, 42); that "talking" beyond an hour caused the muscles in his neck to stiffen (Tr. 38); that dust and/or fumes bothered him but not cigarette smoking (Tr. 38, 68-69); and that he breathed better in air conditioned rooms (Tr. 39). The claimant did not contend that his cancerous condition had recurred.

 The medical evidence in this action consisted of a one-page report and answers to a questionnaire prepared by Dr. William Gilliam and a one-page opinion letter written by Dr. Lawrence J. McStavog, the physician who performed both operations on the plaintiff. Dr. Gilliam reported that Mr. Torelli suffered from aerophagia, due in part to previous surgery, diverticulosis coli, and distortion of the distal esophagus (Tr. 122, 124). Dr. Gilliam expressed no opinion as to the extent of Mr. Torelli's alleged disability.

 On the other hand, Dr. McStavog concluded that Mr. Torelli was "completely disabled and should qualify for disability benefits." Moreover, Dr. McStavog observed, at the time that he discovered the inflamed node in Torelli's right shoulder, that his patient was "becoming depressed and he [Mr. Torelli] said that he did not give a damn about his life." After the removal of the inflamed node, Dr. McStavog said that Mr. Torelli's condition was excellent except for "his periodic periods of depression." Mr. Torelli, according to Dr. McStavog, continued to suffer from pain in his shoulder and around his stoma, as well as from crusting and bleeding of the trachea when he was exposed to cold air. Finally, Dr. McStavog found that because of his tracheal condition, Mr. Torelli should not take a job in a dust-filled factory (Tr. 147).

 A vocational expert, Dr. Philip Spergel, testified at the hearing. In response to a question assuming the truth of Torelli's complaints, Dr. Spergel said that the claimant would be unable to return to his former occupation as a hairdresser (Tr. 71-75). However, Dr. Spergel identified several other jobs in relatively clean working conditions which he felt Torelli could undertake e.g., inspector, sorter, marker, electronics assembler, tube tester, fuel examiner, and denture packer. Dr. Spergel noted that none of the above jobs were in totally dust-free environments and that "depending on his [Torelli's] individual tolerance, any atmosphere could be disastrous." (Tr. 75-76). Approximately sixty percent of the jobs recommended were not likely to be in air conditioned offices and/or plants (Tr. 77). Dr. Spergel said that he would need both a psychiatric and psychological evaluation of the claimant in order to reach any conclusion on psychological impediments which might preclude Torelli from undertaking any job (Tr. 85-86).

 In denying Torelli's claim for disability benefits, the Administrative Law Judge took judicial notice of the claimant's cigarette smoking (Tr. 68-69), and of the fact that Torelli had driven from Washington, D.C. to the administrative hearing in Philadelphia in his unairconditioned car. (Tr. 33-34).

 This Court, in reviewing a decision of the Secretary, must determine whether the Secretary's action is supported by "substantial evidence" contained in the administrative record, that is, such "relevant evidence as a reasonable person might accept to support the conclusion" that Frank Torelli is not entitled to disability benefits. Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971); see also Palmer v. Celebrezze, 334 F.2d 306, 308 (3d Cir. 1964). Of course, the Court is not entitled to conduct a trial de novo on claimant's entitlement to disability benefits, for all findings of fact made by the Secretary which are supported by substantial evidence are conclusive. Richardson v. Perales, supra.

 The Administrative Law Judge made extensive findings of fact in this case, the most important of which are as follows:

 
3. That the claimant had carcinoma which required a radical neck dissection and total laryngectomy in June 1972 and after a recuperative period returned to work on a part-time basis, i.e., substantial gainful activity, in October 1972 with further related surgery in June 1973. *fn2"
 
4. That the residuals of claimant's 1972 surgery did not prevent a return to the part-time hairdressing and would not prevent a continuation of the hairdressing work.
 
5. That claimant's tolerance of vapors, fumes and other pollutants has not been established as being so low as to preclude his performing the duties of the jobs ...

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