697 F.2d 82 (2nd Cir. 1983), 444, Gallagher on Behalf of Gallagher v. Schweiker

Docket Nº:444, Docket 82-6138.
Citation:697 F.2d 82
Party Name:Jean M. GALLAGHER on Behalf of Eleanor GALLAGHER, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant-Appellee.
Case Date:January 03, 1983
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 82

697 F.2d 82 (2nd Cir. 1983)

Jean M. GALLAGHER on Behalf of Eleanor GALLAGHER, Plaintiff-Appellant,


Richard S. SCHWEIKER, Secretary of Health and Human

Services, Defendant-Appellee.

No. 444, Docket 82-6138.

United States Court of Appeals, Second Circuit

January 3, 1983

Argued Nov. 10, 1982.

Harvey Burko, Brooklyn, N.Y. (Shirley Raynor, Jacowitz, Thorner, Severance & Burko, Brooklyn, N.Y., on brief), for plaintiff-appellant.

Jan Freedman Constantine, Asst. U.S. Atty., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., Miles M. Tepper, Asst. U.S. Atty., Brooklyn, N.Y., on brief), for defendant-appellee.

Before KAUFMAN, TIMBERS, and NEWMAN, Circuit Judges.

NEWMAN, Circuit Judge:

This appeal from a denial of widow's disability benefits under the social security system concerns the unfortunate plight of a person suffering pain for which even sophisticated diagnostic techniques have not been able to discover a cause. Eleanor Gallagher 1 appeals from an April 22, 1982, judgment of the District Court for the

Page 83

Eastern District of New York (Henry Bramwell, Judge) in favor of defendant Secretary of Health and Human Services in a suit for widow's disability benefits under section 202(e)(1)(B)(ii) and 223(d)(2)(B) of the Social Security Act, 42 U.S.C. Secs. 402(e)(1)(B)(ii), 423(d)(2)(B) (1976). We agree with the District Court that the denial of benefits is based on substantial evidence and is consistent with applicable statutes and regulations, and we therefore affirm the judgment.

Mrs. Gallagher's husband, whose earnings record is the basis for her claim, died in 1970. Beginning in 1976, when she was 55 years of age, she began to experience pain from the top of her head, down the right side of her face, and into her chin. The frequency, duration, and intensity of the pain has increased to the point where she alleges that she is unable to engage in any gainful activity. Pain-killing medications have been prescribed, usually to no avail. Mrs. Gallagher has consulted several physicians who have tried, without success, to determine the nature of the impairment that is causing her pain. Among the diagnostic techniques that have been used are skull x-rays, sinus x-rays, computerized tomography scan of her head, clinical neurological testing, and dental examination. A dentist extracted all of her upper teeth, but the pain persisted and even worsened. Her doctors have all expressed the opinion that she is suffering from intense pain. The pain has interfered with her sleeping, and she has suffered a significant weight loss since the pain began. One of her doctors noted a diminished sensation to pinpricks on the right side of her face. Based on these circumstances an administrative law judge determined that Mrs. Gallagher had not sustained her burden of establishing that she is disabled within the meaning of the Social Security...

To continue reading