Jean M. Gallagher on Behalf of Eleanor Gallagher v. Richard S. Schweiker, Sec'y of Health & Human Servs., 697 F.2d 82 (2d Cir. 1983). · Go Syfert
Jean M. Gallagher on Behalf of Eleanor Gallagher v. Richard S. Schweiker, Sec'y of Health & Human Servs., 697 F.2d 82 (2d Cir. 1983). Cases Citing This Book View Copy Cite
“once such an impairment has been diagnosed, pain caused by the impairment may be found to be disabling even though the impairment ordinarily does not cause severe, disabling pain . . . .”
57 citation events (11 in the last 25 years) across 12 distinct courts.
Strongest positive: Hanretty v. Commissioner of Social Security (nyed, 2022-07-06) · Strongest negative: Hali M. v. Commissioner of Social Security (nywd, 2026-03-25)
Treatment trajectory · 1983 → 2026 · click a year to view as-of
1983 2004 2026
Top citers, strongest first. 36 distinct citers. How cited ↗
discussed Cited "but see" Hali M. v. Commissioner of Social Security
W.D.N.Y. · 2026 · signal: but see · quote attribution · 1 verbatim quote · confidence high
he pain need not be corroborated by objective medical findings, but some impairment must be medically ascertained
discussed Cited as authority (verbatim quote) Hanretty v. Commissioner of Social Security (2×) also: Cited as authority (rule)
E.D.N.Y · 2022 · signal: see also · quote attribution · 1 verbatim quote · confidence high
once such an impairment has been diagnosed, pain caused by the impairment may be found to be disabling even though the impairment ordinarily does not cause severe, disabling pain . . . .
cited Cited as authority (rule) Kennedy v. Commissioner of Social Security
N.D. Miss. · 2025 · confidence medium
Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir.1983).
discussed Cited as authority (rule) Woolsey v. Aetna Life Insurance Company
D. Ariz. · 2020 · confidence medium
Reports of “pain need not be corroborated by 25 objective medical findings, but some impairment must be medically ascertained. . . .” 26 (Bunnell v. Sullivan, 947 F.2d 341, 347-48 (9th Cir. 1991) (quoting Gallagher v. 27 Schweiker, 697 F.2d 82, 84 (2d Cir. 1983)).
cited Cited as authority (rule) Barringer v. Commissioner of Social Security
N.D.N.Y. · 2005 · confidence medium
See Rivera v. Schweiker, 717 F.2d 719, 724 (2d Cir.1983); Gallagher ex rel Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir.1983).
discussed Cited as authority (rule) Knapp v. Apfel
N.D.N.Y. · 1998 · confidence medium
Subjective complaints of pain and fatigue may serve as the basis for establishing disability, even when the pain is unsupported by clinical or medical findings, so long as an underlying impairment can be “medically ascertained.” See Gallagher v. Schweiker, 697 F.2d 82, 85 (2d Cir.1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979) Saviano v. Chater, 956 F.Supp. 1061, 1071 (E.D.N.Y.1997); Bethge v. Chater, 896 F.Supp. 301 , 312 (W.D.N.Y.1995).
cited Cited as authority (rule) Saviano v. Chater
E.D.N.Y · 1997 · confidence medium
See 42 U.S.C. § 423 (d)(5)(A); 20 C.F.R. §§ 404.1529 (b); 416.929(b); Social Security Ruling (“SSR”) 88-13; Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir.1983).
discussed Cited as authority (rule) Schaal v. Commissioner of Social Security
N.D.N.Y. · 1996 · confidence medium
This court recognizes that subjective pain may serve as the basis for establishing disability, as long as there are “medical signs and laboratory findings which show that [the claimant has] a medical impairment(s) [sic] which could reasonably be expected to produce the pain or other symptoms alleged.” 20 C.F.R. § 416.929 (a). see also Gallagher on Behalf of Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir.1983).
discussed Cited as authority (rule) Gernavage v. Shalala
S.D.N.Y. · 1995 · confidence medium
We will never find that you are disabled based on your symptoms, including pain, unless medical signs or findings show that there is a medical condition that could be *1420 reasonably expected to produce those symptoms. 20 C.F.R. § 404.1529 ; Gallagher v. Schweiker, 697 F.2d 82, 85 (2d Cir.1983) ("[c]ongress authorized the Secretary to deny benefits to claimants ... who, though suffering from severe pain, ha[ve] not produced any medical evidence identifying the underlying impairment.”) 8 .
discussed Cited as authority (rule) Perez v. Shalala (2×) also: Cited "see"
S.D.N.Y. · 1995 · confidence medium
Furthermore, Plaintiffs subjective complaints of pain reported to Dr. Celestin must be evaluated “in light of medical findings and other evidence.... ” Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir.1983).
cited Cited as authority (rule) Koseck v. Secretary of Health and Human Services
W.D.N.Y. · 1994 · confidence medium
Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir.1983).
cited Cited as authority (rule) Arizmendi v. Sullivan
D. Conn. · 1993 · confidence medium
McBray er v. Secretary of Health and Human Services, 712 F.2d 795, 799 (2d Cir.1983); Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir. 1983).
discussed Cited as authority (rule) Benten Ex Rel. Tyrer v. Kessler
E.D.N.Y · 1992 · confidence medium
See, e.g., Harris v. Railroad Retirement Bd. 948 F.2d 123, 126 (2 Cir.1991); Conley v. Bowen, 859 F.2d 261, 261 (2d Cir.1988); Gallagher by Gallagher v. Schweiker, 697 F.2d 82, 84-85 (2d Cir.1983). 6 .
discussed Cited as authority (rule) LaPorta v. Bowen
N.D.N.Y. · 1990 · confidence medium
Gallagher v. Schweiker, 697 F.2d 82, 84 (2nd Cir.1983); see also Hankerson v. Harris, 636 F.2d 893 (2nd Cir.1980); McLaughlin v. Secretary of HEW, 612 F.2d 701 (2nd Cir.1980); Marcus v. Califano, 615 F.2d 23, 27 (2nd Cir.1979).
cited Cited as authority (rule) Diaz v. Bowen
S.D.N.Y. · 1987 · confidence medium
Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir.1983).
discussed Cited as authority (rule) Rivera v. Bowen
S.D.N.Y. · 1986 · confidence medium
See 42 U.S.C. § 423 (d)(5)(A); Rivera v. Schweiker, 717 F.2d 719 (2d Cir.1983); Gallagher v. Schweiker, 697 F.2d 82, 84-85 (2d Cir.1983) (allegations of severe pain must be accompanied by medical evidence identifying underlying impairment); Landry v. Heckler, 782 F.2d 1551 (11th Cir.1986).
discussed Cited as authority (rule) Georges v. Heckler (2×) also: Cited "see"
S.D.N.Y. · 1986 · confidence medium
Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir.1983).
discussed Cited as authority (rule) Mildred R. TAYLOR, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellee
9th Cir. · 1985 · confidence medium
See Gonzales v. Harris, 631 F.2d 143, 146 (9th Cir.1980) (despite claimant’s testimony on pain, she failed to prove disability, in view of evidence of her activity and lack of medical evidence on her alleged disability); Gallagher v. Schweiker, 697 F.2d 82, 85 (2d Cir.1983) (although alleging severe pain, claimant failed to produce medical evidence indentifying underlying impairment and was therefore denied benefits).
cited Cited as authority (rule) Smith v. Heckler
D.D.C. · 1984 · signal: cf. · confidence medium
Cf Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir.1983).
discussed Cited as authority (rule) Callesto v. Secretary of Health and Human Services
W.D.N.Y. · 1984 · confidence medium
In order to reject a disability claimant’s subjective testimony of disabling pain, where as here there exists an “medically ascertainable source” for such pain see Gallagher on behalf of Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir.1983), the AU is required to weigh “the objective medical evidence in the record, appellant’s demeanor, and other indicia of credibility,” if the decision under review is to be deemed to be supported by substantial evidence.
discussed Cited as authority (rule) Colon v. Heckler
D. Conn. · 1984 · confidence medium
It is well established in this circuit that evaluation of plaintiff’s credibility concerning the severity of his pain is of utmost importance, as “pain, even if uncorroborated by objective medical findings, may demonstrate disability.” Fusco, No. 82-1071 at 6, citing Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir. 1983).
cited Cited as authority (rule) Jose Rivera v. Richard Schweiker, Secretary of the United States Department of Health and Human Services
2d Cir. · 1983 · confidence medium
Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir.1983).
discussed Cited "see" Reina v. Commissioner of Social Security
E.D.N.Y · 2022 · signal: see · confidence high
See Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir. 1983). “[W]hen determining a claimant’s RFC, the ALJ is required to take the claimant’s reports of pain and other limitations into account.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010).
discussed Cited "see" Thompson v. Kijakazi
E.D.N.Y · 2021 · signal: see · confidence high
See Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir. 1983). “[W]hen determining a claimant’s RFC, the ALJ is required to take the claimant’s reports of pain and other limitations into account.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010).
cited Cited "see" Pearl Snell v. Kenneth S. Apfel, Commissioner of Society Security
2d Cir. · 1999 · signal: see · confidence high
See Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir.1983).
cited Cited "see" Roman v. Apfel
D. Conn. · 1998 · signal: see · confidence high
See Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir.1983).
cited Cited "see" Dixon v. Sullivan
S.D.N.Y. · 1992 · signal: see · confidence high
See Gallagher v. Schweiker, 697 F.2d 82 (2d Cir.19.83).
discussed Cited "see" Hill v. Sullivan (2×)
S.D.N.Y. · 1989 · signal: see · confidence high
See id. at 31. 11 Furthermore, the Secretary has failed to explain adequately why Gallagher v. Schweiker, 697 F.2d 82 (2d Cir.1983) does not compel a denial of his motion to dismiss this claim.
cited Cited "see" Padilla v. Heckler
S.D.N.Y. · 1986 · signal: see · confidence high
See 697 F.2d at 84 .
cited Cited "see" Cruz v. Secretary of Health & Human Services
D.P.R. · 1984 · signal: see · confidence high
See generally, Gallagher v. Schweiker, 697 F.2d 82, 84-85 (2nd Cir. 1983).
cited Cited "see" Rivers v. Heckler
S.D.N.Y. · 1984 · signal: see · confidence high
See Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir.1983); Echevarria v. Secretary of Health & Human Services, 685 F.2d 751, 755 (2d Cir.1982).
discussed Cited "see" Paul E. Dumas v. Richard S. Schweiker, Secretary of Health and Human Services
2d Cir. · 1983 · signal: see · confidence high
The medical record is replete with references to his complaints of headaches due to hypertension. “[Subjective pain may serve as the basis for establishing disability, even if such pain is unaccompanied by positive clinical findings or other ‘objective’ medical evidence,” Aubeuf v. Schweiker, 649 F.2d 107, 111-12 (2d Cir. 1981) (quoting Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979)); see Meyer v. Schweiker, 549 F.Supp. 1242, 1246 (W.D.N.Y.1982), as long as the pain results from a “physical or mental impairment” as defined by section 223(d)(3) of the Act, 42 U.S.C. § 423 (d)(3)…
discussed Cited "see, e.g." Lim v. Colvin
E.D.N.Y · 2017 · signal: see also · confidence medium
Specifically, the ALJ’s analysis was appropriate for subjective complaints of pain as connected with musculoskeletal conditions, which Dr. Le.vine was able to speak to and which must generally be supported by “medical signs and laboratory findings which show that [the claimant has] a medical impairment(s) which could reasonably be expected to produce the pain.” 20 C.F.R. § 404.1529 (a); see also 42 U.S.C. § 423 (d)(5)(A). 6 Even so, "subjective pain may serve as the basis for establishing disability, even if such pain is unaccompanied by positive clinical findings or other- ‘objectiv…
discussed Cited "see, e.g." Cohen v. Commissioner of Social Security
2d Cir. · 2016 · signal: see also · confidence medium
At the outset, subjective symptoms are alone insufficient to support a finding of a disability under the act. 42 U.S.C. § 423 (d)(5)(A); 20 C.F.R. §§ 404.1529 (a), 416.929(a); see also Gallagher v. Schiveiker, 697 F.2d 82, 83-84 (2d Cir.1983).
discussed Cited "see, e.g." James WINN, Plaintiff, Appellant, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant, Appellee
1st Cir. · 1985 · signal: see, e.g. · confidence low
See e.g., Gallagher on Behalf of Gallagher v. Schweiker, 697 F.2d 82 (2nd Cir.1983); Wiggins v. Schweiker, supra; Miranda v. Secretary, supra; Bittel v. Richardson, 441 F.2d 1193 (3rd Cir.1971); Dvorak v. Celebrezze, 345 F.2d 894 (10th Cir.1965).
cited Cited "see, e.g." McAndrew v. Heckler
S.D.N.Y. · 1983 · signal: see also · confidence medium
Aubeuf v. Schweiker, 649 F.2d 107, 112-13 (2d Cir.1981); Marcus v. Califano, 615 F.2d 23, 27-28 (2d Cir.1979); see also Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir.1983).
Retrieving the full opinion text from the archive…
Jean M. GALLAGHER on Behalf of Eleanor GALLAGHER, Plaintiff-Appellant,
v.
Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant-Appellee
444, Docket 82-6138.
Court of Appeals for the Second Circuit.
Jan 3, 1983.
697 F.2d 82
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.
Kaufman, Timbers, Newman.
Cited by 43 opinions  |  Published
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[*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)(l)(B)(ii) and 223(d)(2)(B) of the Social Security Act, 42 U.S.C. §§ 402(e)(l)(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 Act.

Section 202(e)(l)(B)(ii) of the Act provides that the widow of an insured individual is entitled to an insurance benefit if she is between 50 and 60 years of age and suffering a disability as defined in section 223(d). That section generally defines “disability” as an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment,” but specifically provides that a widow shall not be determined to be under a disability “unless his or her physical or mental impairment or impairments are of a level of severity which under regulations prescribed by the Secretary is deemed to be sufficient to preclude an individual from engaging in any gainful activity.” Section 223(d)(3) defines “physical or mental impairment” for all disability claimants as “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.”

The Secretary has implemented these statutory provisions with regulations that authorize a finding of disability if a person has an impairment that is included in a detailed listing of impairments, 20 C.F.R. Subpart P, Appendix 1 (1982), or is the equivalent of one of the listed impairments. 20 C.F.R. § 404.1520(d) (general disability claimants), 20 C.F.R. § 404.1578(a)(1) (widow’s disability claimants). The regulations also provide that equivalence with a listed impairment will be determined if a claimant’s “medical findings are at least equal in severity and duration to the listed findings” for a listed impairment. 20 C.F.R. § 404.-1526(a). “Medical findings” are defined as “symptoms,” “signs,” or “laboratory findings,” each of which is defined. 20 C.F.R. § 404.1528. The regulations take particular note of the manner in which symptoms, including pain will be evaluated:

The effects of all symptoms, including severe and prolonged pain, must be evaluated on the basis of a medically determinable impairment which can be shown to be the cause of the symptom. We will never find that you are disabled based on your symptoms, including pain, unless medical signs or findings show that there is a medical condition that could be reasonably expected to produce those symptoms.

20 C.F.R. § 404.1529.

Applying these statutory and regulatory provisions, the Administrative Law Judge[*84] acknowledged the presence of severe pain as reported by the claimant and apparently accepted by her doctors, but was unpersuaded as to the existence of a disability within the meaning of the Act because her doctors “have failed to definitively demonstrate the existence, severity, or etiology of any condition producing the subjective symptomatology” despite their use of “every appropriate medically acceptable diagnostic technique.” The ALJ also acknowledged that findings “ ‘consistent with’ her complaints, such as diminished sensation (to pinpricks) on the right side of her face, were even noted,” but emphasized that “no specific documented clinical or laboratory findings of the types as set forth in any section of the ‘Listing of Impairments’ in [Appendix 1] have been adduced." The ALJ thus concluded that Mrs. Gallagher had not proved a statutorily defined disability, i.e., an “impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” Act § 223(d)(3), 42 U.S.C. § 423(d)(3).

On appeal, the claimant contends that this conclusion is in conflict with our prior decisions in Aubeuf v. Schweiker, 649 F.2d 107 (2d Cir.1981), and Marcus v. Califano, 615 F.2d 23 (2d Cir.1979). Specifically relied upon is the observation in Marcus that “subjective pain may serve as the basis for establishing disability, even if such pain is unaccompanied by positive clinical findings or other ‘objective’ medical evidence.” 615 F.2d at 27 (emphasis in original). However, that statement and similar language in Aubeuf, 649 F.2d at 112-13, were expressed in cases where the claimant had been determined to be suffering from an impairment whose existence was established by medical findings. [2] In Marcus the claimant suffered from osteoporosis. 615 F.2d at 28. In Aubeuf the diagnosis was spondylitis of the Marie-Strumpell type. 649 F.2d at 111. These cases did not signal any departure from the statutory requirement that a disability claimant must prove physical or mental impairment resulting from abnormalities demonstrable by “medically acceptable clinical and laboratory techniques.” What these cases properly recognized is that once such an impairment has been diagnosed, pain caused by the impairment may be found to be disabling even though the impairment “ordinarily does not cause severe, disabling pain.” Marcus, supra, 615 F.2d at 28. The pain need not be corroborated by objective medical findings, but some impairment must be medically ascertained, as it was not only in Marcus and Aubeuf, but also in Hankerson v. Harris, 636 F.2d 893 (2d Cir.1980) (heart disease); McLaughlin v. Secretary of Health, Education and Welfare, 612 F.2d 701 (2d Cir.1980) (discogenic problem); and Ber v. Celebrezze, 332 F.2d 293 (2d Cir.1964) (arthritis of cervical spine).

The statutory definition of a disability represents a Congressional decision to provide benefits to those eligible persons whose impairment has a medically ascertainable source. [3] That does not necessarily require[*85] determination of the complete etiology of the impairment, but it does mean, as the Act says, that the impairment must be attributable to abnormalities demonstrable by medically acceptable techniques. In drawing the line at this point, Congress authorized the Secretary to deny benefits to claimants like Mrs. Gallagher, who, though suffering from severe pain, has not produced any medical evidence identifying an underlying impairment. Manifestly the Act ties the scope of its benefits to the progress of medical science, permitting a denial of benefits in those instances when the cause of subjective symptoms defies diagnosis. Congress was entitled to conclude that in the allocation of trust funds medical ascertainment of the existence of an abnormality was an appropriate safeguard against the risk of payment for exaggerated claims of subjective pain, even though such a requirement permits denial of payment to some undiagnosed claimants who may truly be in distress. The distribution of public funds not infrequently requires such difficult legislative judgments to be made, and courts are obliged to enforce them.

The judgment of the District Court is affirmed.

1

. The suit was brought on behalf of Mrs. Gallagher by her daughter.

2

. It should also be noted that the claimants in Aubeuf and Marcus were seeking wage earner’s disability benefits, whereas Mrs. Gallagher seeks widow’s disability benefits. However, the statutory distinctions between these categories of claimants are not directly relevant to the issue on this appeal. The Act provides that a widow’s disability must be sufficiently severe to preclude an individual from engaging in “any” gainful activity, whereas a wage earner’s disability need be sufficient to preclude an individual from engaging in any “substantial” gainful activity. Act, § 223(d)(2)(A) and (B), 42 U.S.C. § 423(d)(2)(A) and (B). In addition, the Act explicitly provides that the determination of whether a widow’s disability reaches the requisite level of severity is to be made “under regulations prescribed by the Secretary.” Act, § 223(d)(2)(B), 42 U.S.C. § 423(d)(2)(B). Since the ALJ concluded that a disability has not been established, issues concerning extent of severity and feasible activity were properly not reached. See 20 C.F.R. § 404.1520(a).

3

. Congress added section 223(d)(3) to the definition of “disability” in 1967, Pub.L. No. 90-248, § 158(b), 81 Stat. 821, 868, “to reemphasize the predominant importance of medical factors in the disability determination.” H.Rep. No. 544, 90th Cong., 1st Sess. 30 (1967); S.Rep. No. 744, 90th Cong., 1st Sess. 48 (1967), reprinted in 1967 U.S.Code Cong. & Ad.News 2834, 2882.