United States District Court, S.D. New York
February 19, 2004.
CHRISTOPHER KLETT, Plaintiff -against- JO ANNE B. BARNHART, Commissioner of Social Security Defendant
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
Plaintiff Christopher Klett ("Klett") brings this action pursuant to
§ 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405
(g), seeking judicial review of a final decision of the Commissioner of
the Social Security Administration (the "Commissioner") denying his claim
for Children's Insurance Benefits under Title II of the Act. Klett argues
that he presented substantial evidence of his disability during a hearing
on his claim before an administrative law judge (the "ALJ"). Klett
alleges that the ALJ erred by ascribing insufficient weight to this
evidence, and that therefore the Commissioner's decision to adopt the
ALJ's ruling denying Klett's claim was erroneous. The parties have filed
cross-motions for judgment on the pleadings. For" the reasons stated
below, Klett's motion is denied and the Commissioner's cross-motion is
I. ADMINISTRATIVE PROCEEDINGS
Klett filed an application for Disabled Child's Insurance Benefits in
1998 as the disabled child of a retired wage earner. Klett claimed that
he was disabled as of August 1, 1985, when he was 21 years old. After his
application was denied initially and upon reconsideration, Klett
requested a hearing before an Administrative Law Judge. The ALJ conducted
a hearing on February 9, 2000, and subsequently issued a decision denying
Klett's application. The ALJ's decision became the final decision of the
Commissioner on September 28, 2001, when the Appeals Council of the
Social Security Administration denied Klett's request for review.
Klett argues that he is entitled to recover Child's Insurance Benefits
pursuant to 42 U.S.C. § 402(d) because he became disabled before
reaching age 22 and is the child of an individual entitled to old-age
benefits. Klett asserts that he became disabled as of August 1, 1985,
thirty-eight days before his twenty-second birthday on September 8, 1985.
Klett suffers from Tourette's Syndrome*fn1 and chronic
depression. He has been receiving Supplemental Security Income
benefits based on this disability since June 24, 1993.
A. PERSONAL HISTORY
Klett graduated high school in 1981 after completing a college
preparatory program. He attended Wesleyan University in Middletown,
Connecticut and graduated in 1985 with a B plus grade point average.
Klett spent the spring semester of his junior year of college in 1984
studying in England.
During his first year of college, he worked for one semester at the
circulation desk of the college library. For six weeks during the summer
after his first year of college and for three weeks after his second year
he assisted a salesman stocking grocery store shelves. At the hearing
before the ALJ, Klett indicated that he had difficulty performing his
summer jobs because he repeatedly became lost while driving to different
stores and frequently became anxious and frustrated. For two months in
the summer of 1993 Klett worked as a county park monitor but left due to
anxiety and fear over confrontations. Klett began working as a library
clerk in March 1997 but left that job in October 1997 due to anxiety over
interacting with people. He has no other
work history. Klett is now 40 years old, has never married, lives
at home with his parents, and has never supported himself financially.
B. MEDICAL EVIDENCE BEFORE AUGUST 1. 1985
The record before the ALJ substantiated Klett's lengthy history of
psychiatric problems. When Klett was nine years old, Minna Genn ("Germ"),
a psychological consultant, evaluated him after he displayed nervous tics
and expressed unhappiness in school. Genn found Klett to be introverted
and insecure, and recommended that Klett receive psychotherapy. Klett did
not present any evidence at the hearing that he received psychotherapy
based on that recommendation. Genn did not diagnose Klett in 1972, but in
1999 she reviewed her records from the 1972 evaluation and stated that
she would have diagnosed him as suffering from Major Depressive Disorder,
recurrent, severe; Generalized Anxiety Disorder; and Chronic Motor Tic
No other evidence was presented to the ALJ relating to any
psychological treatment Klett received before August 1, 1985, but Klett
did present reports from several urologists who treated him between June
1984 and August 1, 1985. Dr. Roger Riechers ("Riechers") diagnosed Klett
with probable prostatitis in August 1984 after treating Klett for three
months for penile pain. Klett attributes much of this pain to
a self-inflicted injury incurred during his time studying in
England in the Spring of 1984. In his description of Klett, Riechers
noted that he was "acutely depressed and anxious over his problem."
(Report re. Christopher Klett dated Aug. 2, 1984 by Roger Riechers, M.D.,
at Tr. 192.) Dr. Jeffrey Rabuffo ("Rabuffo") saw Klett in September and
October 1984 for prostatitis and urethritis. Rabuffo noted that Klett's
symptoms "`seemed to be out of proportion to the physical findings."
(Letter dated Oct. 15, 1984 from Jeffrey Rabuffo to Gordon Williams, at
Tr. 195.) Dr. John Birkhoff treated Klett between October 1984 and March
1986 for acute prostatitis.
C. MEDICAL EVIDENCE BETWEEN AUGUST 1, 1985 AND SEPTEMBER
Klett presented no evidence of any medical treatment between August 1,
1985 and September 8, 1985.
D. MEDICAL EVIDENCE AFTER SEPTEMBER 8. 1985
Klett saw Dr. Yonatan Sokal ("Sokal"), a psychiatrist, for several
months in 1987 and 1988. In an October 1990 report, Sokal indicated that
Klett suffered from Delusional Disorder, somatic type, and Anxiety
Disorder, NOS. Sokal conducted tests which revealed that Klett had
Tourette's disorder. Sokal wrote that Klett:
spent much of his waking time thinking about his
`symptoms.' He could not concentrate on
work, . . . he spent much time thinking about how
to rectify his
disorder. . . . As a result of [Klett's]
disorders he isolated, could not relate well to
others (i.e. superiors coworkers etc.) could not
concentrate on work [and] literally believed that
he was unable to function. . . . It is now
[and] was my belief [in 1987 and 1988] that Mr.
Klett was completely unable to work.
(Report by Sokal dated Oct. 8, 1990 re. Christopher Klett, at Tr.
188.) A series of social workers, therapists, psychologists and
psychiatrists treated Klett over the next ten years for depression,
anxiety, chronic pain disorder, Tourette's Disorder, and related
The record contains three reports, dated September 27, 1998, May 28,
1999, and January 31, 2000, from Monica Carsky ("Carsky"), a psychologist
who has been treating Klett since 1994. Carsky diagnosed Klett as
suffering from "Major Depressive Disorder, severe, with psychotic
features and melancholia, chronic; Generalized Anxiety Disorder; Chronic
Pain Disorder associated with both psychological factors and general
medical condition; and Tourette's Disorder." (Letter dated January 31,
2000 from Carsky to ALJ Katz, at Tr. 218.) In a letter to the ALJ
prepared in connection with the hearing on Klett's claim, Carsky wrote
suffers from a lifelong psychiatric
illness. . . . He has a lifelong inability to
interact normally with others beyond brief periods,
and episodically his concentration" and judgment
have been severely impaired, which have made it
impossible for him to work, socialize, or live on
his own with any consistency. Therefore, I believe
that he has been disabled (unable to function
normally sexually, socially and vocationally) since
adolescence or earlier, and he has been
continuously disabled since then.
(Id. at 222.)
The record also contains a letter to the ALJ dated January 31, 2000
from Dr. Mary Kentros ("Kentros"), a psychiatrist who has been treating
Klett since January 1999. Kentros wrote that Klett "has had serious
symptoms beginning in his late teens, and has remained ill and
essentially disabled since then." (Letter dated January 31, 2000 from
Kentros to Katz, at Tr. 230.)
E. NON-MEDICAL EVIDENCE
In support of his claim for Child's Insurance Benefits, in addition to
the medical evidence summarized above, Klett presented evidence from
non-medical sources. Klett's mother submitted a written statement
describing her son's psychological history since age seven. She described
him as depressed, lonely, and detached throughout high school. She wrote
that Klett "would remain in his room after school. He never dated, and
rarely socialized or went to school events." (Letter dated January 23,
2000 from Patricia Klett to ALJ Katz, at Tr. 184.) She also reported that
Klett was unable to complete his college applications on time, and that
"[h]e was nervous, shaky, and [made] a poor impression on college
interviews, so even though a Merit Scholar, did not get into the schools
of his choice." (Id. at 184.)
Klett's mother also described Klett's behavior during the
summer after his second year of college, when he helped stock
shelves at grocery stores. She recounted episodes when Klett "would come
home and shake and cry and scream about what a terrible job it was and
that he could not do it." (Id.) Additionally, she reported that
during the fall of Klett's junior year at Wesleyan, Klett "was not
involved in activities, did not date, and would sit in his room in the
dark, staring out the dorm window and think about killing himself."*fn2
During his semester in England in the spring of 1984, Klett suffered an
episode of genital self-mutilation. Klett's mother wrote that "[f]rom
that time on . . . he has experienced the fear and pain which have
paralyzed and debilitated him." (Id. at 185.)
Klett graduated from Wesleyan in 1985 as an English major with a B plus
grade average. At the hearing, Klett testified that during his senior
year of college, he rarely attended classes and his grades declined. He
acknowledged that he was able to read literature, write essays, and
successfully complete his classes.
The record also contains a letter of recommendation dated
July 18, 1985 from William Stowe ("Stowe"), a professor of English
at Wesleyan who instructed Klett in two classes. Stowe wrote that Klett
distinguished himself in a drama class during his sophomore year, and
that after that class Stowe offered Klett a position as a teaching
assistant, which Klett was unable to accept due to a scheduling conflict.
Stowe wrote that Klett's performance was "spottier" in a class Stowe
taught during the spring of Klett's senior year in 1985, but he noted
that "[w]hen [Klett] spoke, he spoke well, and his writing remained well
above average." (Letter of Recommendation for Christopher J. Klett, dated
July 18, 1985, from Stowe, at Tr. 187.) Stowe concluded his letter of
recommendation by stating that if Klett:
were to find the time and the will, I think he
might well make a career in some kind of
writing. . . . If and when he can demonstrate the
depth of his interest by producing a substantial
body of writing on his own, I think [he] will be
ready to profit from and do credit to such a
program. Under those circumstances, I would
recommend him highly.
Klett's sister Kerry Klett also submitted a letter in anticipation of
Klett's hearing. Kerry Klett wrote that after Klett's semester in
England, he "seemed severely anxious and depressed. He was tearful and
sad much of the time; he was not interested in participating in any
activities." (Letter dated October 20, 1999 from Kerry Klett to ALJ Neil
Tr. 216.) Kerry Klett wrote that on many occasions between 1987 and
1992 she heard Klett discuss suicide, and sherecounted an episode in 1987
when Klett destroyed a wooden bookcase in his parents' home with a
A. STANDARD OF REVIEW
The Court will review the findings and conclusion of the Commissioner
denying benefits under the Act only to determine whether the decision is
supported by substantial evidence. See 42 U.S.C. § 405(g);
Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). "Substantial
evidence `means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. Shaw. 221 F.3d at 131
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). The
Court may not reverse the decision of the Commissioner if that decision
"rests on adequate findings supported by evidence having rational
probative force." Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.
B. DISABILITY STANDARD
For purposes of the case at bar, to receive child's insurance benefits
an applicant must: (1) be the child of an individual who is entitled to
receive old-age or disability insurance benefits; (2) apply for child's
(3) be unmarried and under a disability which began before age 22;
and (4) be dependent upon the old-age or disabled individual if that
individual is living when the application is filed. See
42 U.S.C. § 402(d)(1).
The only issue in this case is whether Klett is under a disability
which began before he reached the age of 22. The Act defines "disability"
as an "inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months."
42 U.S.C. § 423 (d)(1)(A).
To determine whether an individual suffers from a disability so that he
is eligible to recover child's insurance benefits, the ALJ must follow
the five-step process set forth in 20 C.F.R. § 404.1520. If at any
point during the inquiry the ALJ is able to determine that the applicant
is or is not disabled, the ALJ ceases the inquiry and renders a decision.
The Second Circuit outlined the five-step inquiry as follows:
1. The Commissioner considers whether the claimant
is currently engaged in substantial gainful
2. If not, the Commissioner considers whether the
claimant has a "severe impairment" which limits
his or her mental or physical ability to do basic
3. If the claimant has a "severe impairment," the
Commissioner must ask whether, based solely on
evidence, claimant has an impairment listed in
Appendix 1 [to Subpart P of 20 C.F.R. § 404].
If the claimant has one of these enumerated
impairments, the Commissioner will automatically
consider him disabled, without considering
vocational factors such as age, education, and
4. If the impairment is not "listed" in the
regulations, the Commissioner then asks whether,
despite the claimant's severe impairment, he or
she has residual functional capacity to perform
his or her past work.
5. If the claimant is unable to perform his or her
past work, the Commissioner then determines
whether there is other work which the claimant
Shaw, 221 F.3d at 132 (quoting DeChirico v.
Callahan, 134 F.3d 1177, 1179080 (2d Cir. 1998); see also
20 C.F.R. § 404.1520. The claimant has the burden of proving that he satisfies
the first four requirements. See Perez v. Chater,
77 F.3d 41, 46 (2d Cir. 1996). If the ALJ reaches the fifth step in the
inquiry, the burden shifts to the Commissioner to prove that the claimant
is capable of performing work in jobs in the national economy.
C. THE ALJ'S DECISION
The ALJ issued a ten-page single-spaced decision (the "ALJ Decision")
on April 15, 2000 rejecting Klett's claim for child's insurance benefits.
The ALJ found that Klett had "a history of urethral sphincter dysergia,
recurrent prostatitis, Tourette's Syndrome and a history of anxiety and
depression," but he determined that before Klett reached the age of 22
none of these ailments alone or in combination met the legal
definition of disability. (ALJ Decision at 9, Tr. 20.) The ALJ
referred to the medical reports from Carsky and Kentros that
retroactively diagnosed Klett as disabled since at least his teenage
years. The ALJ determined that "the treating source's retrospective
opinion[s are] contradicted by overwhelmingly compelling non-medical
evidence." (Id. at 7, Tr. 18.) The ALJ emphasized Klett's own
testimony during the hearing and Klett's ability to graduate from
Wesleyan in four years as an English major with a 3.3 grade point average
during the period in which Klett claims to have been disabled. The letter
of recommendation for Klett from Professor Stowe, which was written two
weeks before Klett's claimed date of disability, had "particular
significance" to the ALJ. (Id. at 3, Tr. 15.) Additionally, the
ALJ noted the absence of any contemporaneous treating physician reports.
Klett argues that the ALJ erred by basing his denial of Klett's claim
on the absence of contemporary treating physician reports. Klett asserts
that the ALJ improperly focused on Klett's genitourinary complaints as
the basis for Klett's disability because the only contemporaneous medical
records related to those ailments. Klett argues that a benefits claimant
is not required to submit contemporaneous medical evidence to support a
finding of disability.
At the outset, the Court rejects Klett's argument that
the ALJ unduly focused on Klett's genitourinary complaints as the
source of Klett's alleged disability. The first sentence of the ALJ
Decision states that Klett claimed disability "on the basis of Tourette's
Syndrome and chronic depression." (Id. at 1, Tr. 13A.) The ALJ
Decision barely refers to Klett's genitourinary problems and instead
focuses on Klett's psychological afflictions and the reports of the
doctors and therapists who treated Klett for those disorders.
Klett correctly argues that he is not required to submit
contemporaneous medical evidence to establish disability. Under the
so-called "treating physician rule," a retroactive diagnosis from a
physician who was treating the claimant during the relevant time period
would receive controlling weight unless it was contradicted by other
medical evidence or overwhelmingly compelling non-medical evidence.
See Rivera v. Sullivan, 923 F.2d 964 (2d Cir. 1991);
Wagner v. Secretary of Health and Human Servs., 906 F.2d 856
(2d Cir. 1990); Martinez v. Massanari, 242 F. Supp.2d 372
(S.D.N.Y. 2003). The situation here is somewhat different because the
retroactive diagnoses Klett submitted to the ALJ were from physicians who
began treating Klett for his psychological problems after the relevant
time period. An ALJ should attribute significant (though not controlling)
weight to a retrospective diagnosis from a physician who is currently
treating a claimant but who
was not treating the claimant during the relevant time period.
See Dousewicz v. Harris, 646 F.2d 771, 774 (2d Cir. 1981);
Martinez, 242 F. Supp.2d at 377; Campbell v.
Barnhart, 178 F. Supp.2d 123, 134 (D. Conn. 2001). As the ALJ
noted, a retrospective diagnosis from a physician, particularly one who
was not the claimant's treating physician during the relevant time
period, may carry less weight if the diagnosis is inconsistent with other
substantial evidence in the record. See
20 C.F.R. § 404.1527(d)(4); Dousewicz, 646 F.2d at 774; Peguero v.
Massanari, No. 00 Cv. 173, 2001 WL 1029048 (S.D.N.Y. 2001).
When an ALJ is presented with evidence from a treating physician, the
ALJ shall accord that evidence controlling weight if the "opinion on the
issue (s) of the nature and severity of [the claimant's] impairment(s) is
well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in
[the] case record." 20 C.F.R. § 404.1527(d)(2). If the ALJ determines
that the medical evidence from a treating physician is not well-supported
by accepted medical techniques or is inconsistent with other substantial
evidence in the record, then the ALJ must determine how much weight to
accord that evidence based on a consideration of at least four factors:
"(i) the frequency of examination and the length,
nature, and extent of the treatment relationship; (ii) the evidence
in support of the opinion; (iii) the opinion's consistency with the
record as a whole; and (iv) whether the opinion is from a specialist."
Shaw. 221 F.3d at 134.
In the case at bar, the ALJ determined that the medical evidence
presented, particularly the retrospective diagnoses from Klett's current
treating physicians, Carsky and Kentros, was "contradicted by
overwhelmingly compelling non-medical evidence." (ALJ Decision at 7, Tr.
18.) The ALJ stated that Kentros's and Carsky's retrospective opinions
not consistent with [Klett's] own statements
concerning his functional abilities during the
Relevant Period. Such statements demonstrate that
[Klett's] ability to function was greater than
that to which these mental health specialists
indicate. Added to the paucity of medically
acceptable clinical data during the Relevant
Peiod, one cannot regard these opinions as
well-supported; consequently, I have considered
their opinions but have given less weight to
them than would otherwise be mandated.
The ALJ emphasized other evidence in the record that contradicted the
medical opinions of Carsky and Kentros. The ALJ found it "significant"
that Klett attended college for four years away from home, completed his
coursework, received a letter of recommendation from one of his
professors, and graduated with a B plus average as an English major from
Wesleyan University during the time that Kentros and Carsky characterized
Klett as disabled.
Contrary to Klett's assertions, the ALJ did not reject Klett's
claim based on a failure to submit contemporaneous medical records.
Certainly the ALJ could not help but note the absence of any
contemporaneous medical records from the period that Klett claims to have
been disabled. But the ALJ's written decision indicated that that
deficiency did not form the basis for his denial of Klett's claim.
Klett was undeniably a troubled individual during his college years and
has been for much of his life. Given the nature of his ailments, it is
virtually impossible to pinpoint a specific date on which he became
legally disabled. But the issue for the Court to resolve is not whether
Klett presented evidence supporting his claim that he was disabled during
the relevant period, but whether the record contained substantial
evidence supporting the ALJ's determination that Klett was not disabled
at that time. Where there is substantial evidence supporting either
position, the Court must defer to the determination of the factfinder.
See DeChirico, 134 F.3d at 1182; Alston v. Sullivan,
904 F.2d 122, 126 (2d Cir. 1990); Rosado v. Barnhart,
290 F. Supp.2d 431, 436 (S.D.N.Y. 2003). The ALJ conducted a careful and
thorough evaluation of all the evidence on the record before him and
explained his denial of Klett's claim in a detailed written decision. The
retrospective diagnoses from Kentros and Carsky are
reasonable, but substantial evidence supports the ALJ's decision
that Klett was not disabled before his twenty-second birthday and thus
warrants his corresponding denial of Klett's claim.
For the reasons stated above, it is hereby
ORDERED that the motion of plaintiff Christopher Klett for
judgment on the pleadings is denied, and the cross-motion of defendant Jo
Anne Barnhart (the "Commissioner") for judgment on the pleadings is
granted. The decision of the Commissioner is affirmed.
The Clerk of Court is directed to close this case.