Peet v. Colvin

Filing 19

MEMORANDUM OPINION AND ORDER Affirming the Decision of the Commissioner. Signed by U.S. District Judge Karen E. Schreier on 9/28/2015. (JLS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
ERIC L. PEET,

5:14-CV-05057-KES
Plaintiff,
MEMORANDUM OPINION AND
ORDER AFFIRMING THE DECISION
OF THE COMMISSIONER

vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security;
Defendant.

Plaintiff, Eric L. Peet, seeks review of the decision of the Commissioner of
the Social Security Administration denying his claim for social security
disability insurance benefits (SSDI) under Title II of the Social Security Act, 42
U.S.C. § 423, and for supplemental security income (SSI) under Title XVI of
that Act, 42 U.S.C. § 1382. The Commissioner opposes the motion and moves
the court to affirm the denial. For the following reasons, the court affirms the
decision of the Commissioner.
PROCEDURAL HISTORY
Peet applied for SSDI and SSI on February 5, 2009, alleging disability
since April 12, 2008. AR 259; 1 AR 266.2 The Social Security Administration
1

All citations to “AR” refer to the appropriate page of the administrative

record.
Peet originally filed for disability in 2008, but his claims were denied for
failing to submit to a consultative examination. The ALJ agreed to reopen those
claims. AR 7.
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(SSA) denied Peet’s applications initially on June 19, 2009 and again upon
reconsideration on November 20, 2009. AR 100-01; AR 103-04. Peet then
requested an administrative hearing and appeared with counsel before
Administrative Law Judge James W. Olson (ALJ) on October 13, 2010. See AR
63-99 (transcript of hearing). Thereafter, the ALJ issued an unfavorable
decision finding that Peet retained the residual functional capacity (RFC) to
perform past relevant work as a dishwasher and housekeeper. AR 105-23.
Thus, the ALJ denied Peet’s claims, concluding he was not disabled. Peet
timely appealed the ALJ’s decision and requested review by the Appeals
Council. AR 200. The Appeals Council granted Peet’s request and remanded his
case to the ALJ in an order dated March 9, 2012. AR 124-27.
On remand, Peet appeared with counsel before the ALJ for a second
hearing that was held on June 20, 2012. See AR 32-62 (transcript of hearing).
Thereafter, the ALJ issued an unfavorable decision finding that Peet could
perform past relevant work as a security guard. AR 7-27. The ALJ again denied
Peet’s claims, concluding that Peet was not disabled. Peet timely appealed the
ALJ’s decision and requested review by the Appeals Counsel, but such review
was denied on July 15, 2014. AR 28-29; AR 1-3.3 On August 29, 2014, Peet
initiated the present action seeking judicial review of the Commissioner’s denial
of his claims. Docket 1.

Because the Appeals Council denied Peet’s request for review, the ALJ’s
decision represents the final decision of the Commissioner for purposes of
judicial review. 42 U.S.C. § 405(g).
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FACTUAL BACKGROUND
Peet was born on November 26, 1988. AR 259; AR 266. At the time of the
second hearing, Peet was 23 years old. AR 38. Peet has experienced significant
deafness in both ears all of his life and requires the use of a hearing aid. AR 38;
AR 331; AR 358. Peet stated that he can read peoples’ lips when they talk, but
that he has difficulty hearing and understanding spoken words. AR 39; AR 84.
Peet also acknowledged that he has difficulty speaking clearly. AR 39. Peet
earned a high school diploma, but did not attend college. AR 38. Peet reported
past work experience at a variety of jobs, including work as a security guard, a
dishwasher, a car wash attendant, a hotel housekeeper, an auto detailer, and a
construction company employee. AR 39-44. Peet primarily worked on a parttime basis and sometimes for a period of only weeks or months before the
employment would end. AR 52-54; AR 301-304; AR 333.
Throughout his childhood, Peet was enrolled in special education
classes. AR 39. In 2002, when he was thirteen-years-old, Peet began attending
classes at the South Dakota School for the Deaf (SDSD) in Sioux Falls, South
Dakota. AR 545. While enrolled at SDSD, Peet was the victim of several
episodes of sexual abuse instigated by an older male resident of the school
named Tom. AR 547.
Following the incidents at SDSD, Peet saw Dr. Curt Hill, a licensed
clinical psychologist, for a psychological assessment in 2003. AR 538. Dr. Hill’s
notes indicate that Peet had not previously attended counseling or been
prescribed any medication. AR 538. Dr. Hill further noted that the instances of
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sexual abuse have negatively impacted Peet’s life. AR 539. For example, Peet
reported difficulties sleeping, that he no longer wished to attend school, and
that he had had several conflicts with family members since the time of the
abuse. AR 539. Dr. Hill diagnosed Peet with Post-Traumatic Stress Disorder
(PTSD) and assessed Peet’s Global Assessment of Functioning (GAF) score at
48.4 AR 540. Dr. Hill recommended weekly psychotherapy. AR 540.
At some point, Peet filed a civil lawsuit related to the abuse he suffered at
SDSD. Dr. Gilbert W. Kliman was retained as an expert to conduct a
psychiatric evaluation of Peet. AR 542. Dr. Kliman examined Peet on
December 4, 2004, and filed his report on May 22, 2007. AR 542. In addition to
interviewing Peet, Dr. Kliman also interviewed Peet’s mother and stepfather. AR
542.
Dr. Kliman’s report chronicled Peet’s upbringing and family background,
as well as the instances of abuse that occurred at SDSD and Peet’s subsequent
transfer from SDSD into public school. AR 543-63. In his interview summaries,
Dr. Kliman noted that Peet and his mother reported an increase in verbal and
physical conflicts between Peet and members of his family, as well as Peet’s
tendency to anger quickly. AR 567-70; AR 573; AR 576. Dr. Kliman’s report
includes his diagnoses of PTSD and depression, and he assessed Peet’s GAF

The GAF ranks psychological, social, and occupational functioning on a
hypothetical continuum of mental illness ranging from zero to 100. A rating of
41–51 indicates serious symptoms or serious impairments. A 51–60 rating
indicates moderate symptoms, and a rating of 61–70 indicates mild symptoms.
Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders 32–
34 (Text Rev. 4th ed. 2000).
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score at 55. AR 582. He recommended a long-term therapeutic treatment
regime and provided a cost estimate for such a plan. AR 583-586. Peet
eventually reached a monetary settlement with SDSD to resolve the lawsuit.
See AR 50; AR 80. As a result of the settlement, a trust account was
established to help Peet pay for counseling. AR 50.
On November 4, 2008, after he moved from South Dakota to stay with
his biological father and stepmother in Michigan, Peet began receiving mental
health assistance at Pines Behavioral Health Services. AR 473. Darren Moore, a
clinician, completed Peet’s initial assessment. AR 473. Peet reported that he
had been experiencing trouble sleeping and that he was feeling quick tempered.
AR 473. Peet was diagnosed with PTSD and a mood disorder not otherwise
specified. AR 480. His GAF score at that time was assessed at 53. AR 480. Peet
received a recommendation to continue individual therapy in order to address
his needs. AR 483.
Peet attended a therapy session at Pines Behavioral Health Services on
November 11, 2008, where he identified several personal goals and discussed
methods for achieving them. AR 484-91. He was scheduled for another session
on November 18, 2008, but was later listed as a no-show. AR 492. Peet
returned on December 17, 2008 and reported that he had been spending too
much money lately. AR 493. According to Peet, he tended to spend money in
order to combat boredom. AR 493. Peet was assisted in finding other activities
to occupy his time and encouraged to pursue college. AR 493. On December
30, 2008, he was again listed as a no-show for his therapy session. AR 495.
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According to Peet, he returned to South Dakota in early 2009 to live with his
mother and did not return to Pines Behavioral Health Services.
On June 1, 2009, after applying for disability benefits, Peet was referred
to Dr. Craig Mills for a physical consultation. AR 502. Peet reported back pain
and knee discomfort. AR 502. Dr. Mills ordered a series of x-rays. The first, an
x-ray of Peet’s lumbar spine, showed a mild dextrocurvature of the
thoracolumbar spine. AR 499. There were no degenerative disc changes or
fractures present. AR 499. Additionally, the x-ray showed no abnormal motion
with flexion or extension. AR 499. The second, an x-ray of Peet’s thoracic spine,
did not show any degenerative abnormalities or factures. AR 500. The third, an
x-ray of Peet’s right foot, showed no abnormalities. AR 501.
On October 12, 2009, Peet was referred to Dr. Greg Swenson for a
psychological consultation. AR 444. Peet reported that he is prone to becoming
angry easily, which has manifested itself in the workplace, at times resulting in
Peet’s loss of employment because he became embroiled in aggressive conflicts
with co-workers and supervisors. AR 444. Additionally, Peet explained that he
is reminded of his abuser when he is around people of Asian descent. AR 444.
Dr. Swenson noted that the combination of Peet’s hearing loss and his
aggressive tendencies have made it difficult for him to obtain or keep jobs. AR
447. Dr. Swenson diagnosed Peet with Intermittent Explosive Disorder (IED),
PTSD, and Dysthymic Disorder, 5 and ruled out diagnoses of ADHD or a

Dysthemia “is a mild but long-term (chronic) form of depression.” See
MayoClinic.org, http://www.mayoclinic.org/diseases5

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learning disorder not otherwise specified. AR 448. Peet’s GAF score at that time
was assessed at 40. AR 448.
On April 2, 2012, Peet met with Sharon Hansen, a counselor, for an
intake assessment. AR 533. Hansen’s notes indicate that Peet was a selfreferral and that he was encouraged to see her by his attorneys. AR 533. Peet
reported changes in his behavior since the incidents of abuse at SDSD, such as
his increased irritability, his desire to be isolated from other people, and his
lack of ambition. AR 533. Hansen noted Peet’s difficulties at work and in
keeping employment. AR 533. Peet also reported that he experienced anxiety
around people of Asian descent, as they remind him of his abuser. AR 533.
Hansen opined that Peet exhibited symptoms of PTSD and depression, and
assessed a GAF score of 50. AR 534-35. She recommended weekly therapy. AR
534.
Peet returned to see Hansen on April 4, 2012. AR 536. Her notes
describe Peet’s dissatisfaction with his court case and his belief that Tom did
not face any real consequences for his actions. AR 536. Peet met with Hansen
again on April 10, 2012. AR 537. Peet discussed the incidents of abuse that
occurred at SDSD and reported that he still experienced trouble sleeping. AR
537. Peet felt, however, that he had made some progress on his anger issues.
AR 537. On April 24, 2012, Peet returned to see Hansen for another therapy
session. AR 615. Peet discussed looking for jobs in Michigan and his plans to

conditions/dysthymia/basics/definition/con-20033879 (last visited September
17, 2015).
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attend his brother’s wedding. AR 615. Hansen’s notes state that Peet seemed to
be more comfortable around others and that he had less anxiety in general. AR
615. According to the record, Peet’s last therapy session with Hansen was
April 30, 2012. AR 616. Hansen noted that Peet appeared to be more relaxed
and that he was sleeping better. AR 616. Peet also had spent some time
assisting his family with yard work and had went out to a movie without
experiencing anxiety despite the crowd. AR 616. Peet stated he was still
concerned about controlling his anger, but that he was looking forward to
attending his brother’s wedding and felt confident about his ability to cope with
the situation. AR 615.
ALJ DECISION
On July 9, 2012, the ALJ issued a decision denying Peet’s application for
benefits. AR 4-27. In doing so, the ALJ used the sequential five-step evaluation
process.6 At step one, the ALJ determined that Peet had not engaged in

An ALJ must follow “ ‘the familiar five-step process’ ” to determine
whether an individual is disabled. Martise v. Astrue, 641 F.3d 909, 921 (8th
Cir. 2011) (quoting Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010)). 20
C.F.R. § 404.1520(a)(4)(i)-(v) provides that “(i) [a]t the first step, we consider
your work activity, if any. If you are doing substantial gainful activity, we will
find that you are not disabled. . . . (ii) At the second step, we consider the
medical severity of your impairment(s). If you do not have a severe medically
determinable physical or mental impairment that meets the duration
requirement of § 404.1509, or a combination of impairments that is severe and
meets the duration requirement, we will find that you are not disabled. . . . (iii)
At the third step, we also consider the medical severity of your impairment(s). If
you have an impairment(s) that meets or equals one of our listings in appendix
1 of [subpart P of part 404 of this chapter] and meets the duration
requirement, we will find that you are disabled. . . . (iv) At the fourth step, we
consider our assessment of your residual functional capacity and your past
relevant work. If you can still do your past relevant work, we will find that you
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substantial gainful activity since April 12, 2008. AR 11. At step two, the ALJ
found that Peet was suffering from several severe impairments, namely:
bilateral hearing loss, mild dextrocurvature of the thoracolumbar spine with
pain, dysthymia, PTSD, and IED. AR 11. At step three, the ALJ found that Peet
did not have an impairment or combination of impairments that met or
medically equaled a listed impairment. AR 11-13. At step four, the ALJ found
that Peet had the RFC to perform medium work within certain parameters. AR
13. The ALJ also found that Peet could perform past relevant work as a
security guard. AR 19. Because the ALJ determined that Peet could still
perform past relevant work, the ALJ concluded that Peet was not disabled and
did not qualify for benefits under the Social Security Act.
STANDARD OF REVIEW
The court must uphold the ALJ’s decision if it is supported by
substantial evidence in the record as a whole. 42 U.S.C. § 405(g) (“The findings
of the Commissioner as to any fact, if supported by substantial evidence, shall
be conclusive . . . .”); Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011).
“Substantial evidence is ‘less than a preponderance, but is enough that a
reasonable mind would find it adequate to support the Commissioner's
conclusion.’ ” Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009) (quoting

are not disabled. . . . (v) At the fifth and last step, we consider our assessment
of your residual functional capacity and your age, education, and work
experience to see if you can make an adjustment to other work. If you can
make an adjustment to other work, we will find that you are not disabled. If
you cannot make an adjustment to other work, we will find that you are
disabled.”
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Maresh v. Barnhart, 438 F.3d 897, 898 (8th Cir. 2006)). The court considers
evidence that both supports and detracts from the ALJ’s decision. Moore v.
Astrue, 623 F.3d 599, 605 (8th Cir. 2010). If the Commissioner’s decision is
supported by substantial evidence in the record as a whole, the court may not
reverse it merely because substantial evidence also exists in the record that
would support a contrary position or because the court would have determined
the case differently. Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002)
(citing Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)).
In determining whether the Commissioner’s decision is supported by
substantial evidence in the record as a whole, the court reviews the entire
administrative record and considers six factors: (1) the ALJ’s credibility
determinations; (2) the claimant’s vocational factors; (3) medical evidence from
treating and consulting physicians; (4) the claimant’s subjective complaints
relating to activities and impairments; (5) any third-party corroboration of
claimant’s impairments; and (6) a vocational expert’s testimony based on
proper hypothetical questions setting forth the claimant’s impairment(s).
Stewart v. Sec’y of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir.
1992) (citing Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989)).
The court also reviews the Commissioner’s decision to determine if an
error of law has been committed, which may be a procedural error, the use of
an erroneous legal standard, or an incorrect application of the law. Collins v.
Astrue, 648 F.3d 869, 871 (8th Cir. 2011) (citations omitted). Issues of law are
reviewed de novo with deference accorded to the Commissioner’s construction
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of the Social Security Act. Id. (citing Juszczyk v. Astrue, 542 F.3d 626, 633 (8th
Cir. 2008)).
DISCUSSION
I.

Step Four
Before an ALJ moves to step four, the ALJ must determine the claimant's

RFC. 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4). A claimant's RFC “is the most
he can still do [in a work setting] despite his limitations.” 20 C.F.R.
§§ 404.1545(a)(1); 416.945(a)(1). The RFC assessment is an indication of what
the claimant can do on a “regular and continuing basis” given the claimant's
limitations. 20 C.F.R. §§ 404.1545(b); 416.945(b). “ ‘The ALJ should determine
a claimant's RFC based on all the relevant evidence, including the medical
records, observations of treating physicians and others, and an individual's
own description of his limitations.’ ” Lacroix v. Barnhart, 465 F.3d 881, 887
(8th Cir. 2006) (quoting Strongson v. Barnhart, 361 F.3d 1066, 1070 (8th Cir.
2004)). The RFC must include the limitations from all medically determinable
impairments, regardless of whether they are considered severe. See SSR 96–8p,
1996 WL 374184 at *5 (SSA 1996) (“In assessing RFC, the adjudicator must
consider limitations and restrictions imposed by all of an individual's
impairments, even those that are not ‘severe.’ ”).
In determining Peet’s RFC, the ALJ considered Peet’s significant hearing
loss, his difficulty communicating with others, the instances of his abuse at
SDSD, his complaints of spontaneous anger, his depression, and his
complaints of knee and back pain. AR 13-19. The ALJ also reviewed the notes
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in the record from Peet’s therapy sessions and caregivers. AR 14-19. The ALJ
made findings on Peet’s credibility and considered the opinions of Peet’s mother
and several state agency physicians. AR 15-18. The ALJ ultimately determined
that:
[T]he claimant has the residual functional capacity to perform
medium exertional work with postural limitations of occasional
climbing of ladders/ropes/scaffolds, and frequent climbing of
ramps/stairs, balancing, stooping, kneeling, crouching, or
crawling; no manipulative or visual limitations; had limited hearing
and speaking due to bilateral hearing loss; should avoid
concentrated exposure to hazards (machinery, heights, etc.); mild
limitations in his ability to understand, remember, and carry out
simple instructions and ability to make judgments on complex
work-related decisions. His limitations were moderate to marked in
his abilities to interact appropriately with the public, supervisors,
or co-workers, and ability to respond appropriately to usual work
situations and to changes in a routine work setting.
AR 13.
A.

ALJ’s Credibility Determination

“[W]hen evaluating a claimant’s credibility, in addition to considering the
absence of objective medical evidence to support complaints of pain, an ALJ
should consider a claimant’s reported daily activities, the duration, frequency
and intensity of his or her pain, precipitating and aggravating factors,
medication, and functional restrictions.” Steed v. Astrue, 524 F.3d 872, 875 n.4
(8th Cir. 2008) (citing Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984)); see 20
C.F.R. §§ 404.1529(c)(3); 416.929(c)(3). “The ALJ is not required to discuss
methodically each Polaski consideration, so long as [the ALJ] acknowledged
and examined those considerations before discounting [Peet’s] subjective
complaints.” Steed, 524 F.3d at 876 (internal quotation omitted). An ALJ must
12

make express credibility determinations detailing reasons for discounting a
claimant’s subjective complaints. Dipple v. Astrue, 601 F.3d 833, 837 (8th Cir.
2010). An ALJ’s credibility determination is entitled to deference because the
ALJ is in a better position than a reviewing court to gauge credibility. Travis v.
Astrue, 477 F.3d 1037, 1042 (8th Cir. 2007).
1.

Allegations of Mental and Physical Limitations

On February 5, 2009, Peet completed a disability report in conjunction
with his application for benefits. AR 323-32. He listed the illnesses and
conditions that limited his ability to work as deafness, back pain, and
“annoying stomach noises.” AR 324. Peet explained that his hearing loss made
it especially difficult for him to work, because he would often miss instructions
or need to ask people to repeat themselves constantly. AR 324. In a function
report completed on March 6, 2009, Peet stated that he did not have any
difficulty getting along with family, friends, neighbors, or others. AR 370. He
indicated that he got along “good” with authority figures and that he had not
been fired or laid off from a job because of problems getting along with other
people. AR 371.
During the hearings before the ALJ, Peet recalled several instances
before and after filing for benefits where past jobs had ended due to various
conflicts that arose between himself and his supervisors or other employees.
See AR 40-45; AR 74. For example, Peet explained that he had been fired from
Sears in 2007 for stealing money and striking a supervisor, that he was fired
from a position at Wind Cave in 2010 after he borrowed caving equipment
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without permission, and that he quit a job working as a security guard after
getting into an argument with another employee. AR 41-46; AR 48. While Peet
felt he had some physical limitations, he testified that his main problem with
being able to find and maintain work opportunities stemmed from the abuse he
suffered at SDSD. AR 51-52. More specifically, Peet testified that he now felt
angry all the time, that he would have anger outbursts regularly, up to every
day or every other day, and that he did not get along with other workers. AR
47-48. Regarding counseling, Peet testified that he had been seeing a counselor
but that he was dissatisfied with her methodology and that he had stopped
seeing her. AR 49. Peet acknowledged that he had a trust fund to pay for
another counselor, but he had been unable to find one because the trust fund
did not pay for gas, food, or travel. AR 50.
Peet’s mother, Tracy Echie, also testified briefly at the second hearing.
AR 55-58. She testified regarding Peet’s anger outbursts, noting that they
previously occurred daily but now occur roughly twice a week. AR 56-57. Echie
also recalled some of Peet’s prior jobs, including when he was fired for stealing
money and borrowing caving equipment. AR 57-58. She also opined that Peet
had difficulty working with others because she and Peet could not do dishes
together in the past without getting into an argument. AR 58.
2.

ALJ’s Conclusion

The ALJ found that “[Peet’s] medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence, and limiting effects of these
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symptoms are not credible[.]” AR 17. The ALJ observed that the objective
medical evidence did not support Peet’s claim of frequent, uncontrollable anger
outbursts. AR 18 (noting Peet’s assertions that “he cannot work full time
because he does not get along with people are self-serving” and that Peet
claimed that he suffers “daily outburst[s] but there is no medical
corroboration.”) Additionally, the ALJ observed that “[Peet’s] asserted
limitations of not lifting more than 5 pounds are not documented anywhere in
his medical records.” AR 18. The ALJ also observed that Peet’s activities of daily
living were inconsistent with his allegations of frequent, uncontrollable anger
outbursts or disabling pain. AR 18-19 (noting that Peet claimed he did not like
crowds, but that he “traveled from Hawaii to South Dakota; to Michigan, to
Hawaii, and back to South Dakota” since his alleged disability onset without
difficulty, and that Peet’s hobbies of fixing fences and boxing are “extremely
physical and not consistent with his claims of back pain and knee pain.”). The
ALJ also noted that Peet’s mother wrote that he enjoyed playing games,
working on cars, and going to the library regularly. AR 18. Regarding
medication and treatment of Peet’s mental symptoms, the ALJ found that
“[u]ntil recently, [Peet] has not undertaken counseling or training to better
relate with others or to deal with perceived insults” and that Peet was no longer
seeing a therapist. AR 18. For Peet’s physical symptoms, the ALJ found that
Peet “is not taking any pain medications, prescription or over-the-counter” and
that he is not engaged in “exercise programs or physical therapy.” AR 18. The
ALJ concluded that Peet’s allegations were not fully credible.
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Peet contends that objective medical evidence supports his allegations of
frequent anger outbursts.7 He points to Dr. Kliman’s report which, according to
Peet, documents the frequency and severity of his anger outbursts.
Additionally, Peet contends that although he was not pursuing treatment at the
time of the hearing, he has good reasons for not doing so. The first is that his
condition is no longer amenable to treatment, and the second is that he was
unable to afford continued treatment.
First, Dr. Kliman’s report was compiled in conjunction with Peet’s civil
lawsuit related to the abuse he suffered at SDSD. Dr. Kliman summarized the
interviews he had with Peet and his mother on December 4, 2004, which
occurred several years before the alleged onset of Peet’s disability. Dr. Kliman
incorporated Peet and his mother’s statements into the narrative of his report,
including their statements that Peet became more irritable after the incidents
at SDSD and that they would argue more frequently. Aside from incorporating
Peet and his mother’s subjective complaints, the report does not include
objective medical testing or diagnostic observations that were performed and
support what those claims asserted. Thus, while Dr. Kliman’s report is medical
evidence, it is not “objective medical evidence.” See Rehder v. Apfel, 205 F.3d
1056, 1060 (8th Cir. 2000); see also Lake v. Astrue, 4:11-CV-1615-TIA, 2012
WL 4479129 at *11 (E.D. Mo. 2012) (agreeing with ALJ’s decision to discount a
medical opinion prepared in response to litigation and which was based on

Peet does not contest the ALJ’s credibility determination as it pertains
to his subjective complaints of physical pain.
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subjective complaints rather than objective medical testing). Even assuming
Dr. Kliman’s report serves as objective medical evidence on this point, it does
not state that Peet experiences anger outbursts with any particular frequency
or severity. In a section entitled “Summary of Current Functioning and
Damages Claimed,” Dr. Kliman includes Peet’s statement that he is easily
angered and frustrated “ ‘over everything,’ ” and that he fights with brothers
frequently. AR 576. In another section, Dr. Kliman notes that Peet was quick to
anger when he returned home from SDSD in February 2003. AR 582. In the
“Prognosis” section, Dr. Kliman states that Peet has demonstrated aggressive
behavior toward others and that he may be at an increased risk to do so in the
future. AR 586. Thus, while Dr. Kliman’s report includes references that Peet
did (in 2004) experience anger outbursts and that he acted aggressively
towards members of his family, it does not include any reference to the
periodicity or severity at which those events occur. Thus, Dr. Kliman’s report
does not support Peet’s claim that he experiences anger outbursts with the
frequency or severity that he described before the ALJ.
Second, Peet’s claim that his symptoms are now so intractable that he is
no longer amenable to treatment is not supported by any formal diagnosis or
by the record as a whole. Peet’s sole source for his conclusion comes from
Dr. Kliman’s report, where Dr. Kliman opined in 2004 that, without therapy,
Peet’s “symptoms will become increasingly intractable over time.” AR 583.
Dr. Kliman further opined that Peet could have trouble utilizing therapy and
that he would continue to struggle throughout his remaining academic years.
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AR 586. Dr. Kliman’s remarks on the potential effectiveness of therapy and
Peet’s symptoms over time are merely speculative, however, and refer only
generally to possibilities that may or may never come to pass. As such, Dr.
Kliman’s remarks do not substantiate Peet’s claim. See Stormo v. Barnhart, 377
F.3d 801, 806 (8th Cir. 2004) (agreeing with the ALJ’s decision not to rely on a
speculative medical opinion based on conditions and possibilities). This
conclusion applies with equal force to Peet’s personal opinion that his
condition is no longer amenable to treatment. Moreover, regarding the types of
therapy recommended by Dr. Kliman, the providers at Pines Behavioral Health
Services as well as counselor Hansen both offered and recommended continued
therapy to treat Peet’s symptoms, and the most recent records from Hansen
show that Peet was experiencing success managing his anger and related
issues. AR 483; AR 537; AR 616 (noting Peet reported managing his anger
better and that he did not experience any anxiety when he went to a movie
despite the crowd of people). Thus, the medical records subsequent to Dr.
Kliman’s report contradict Peet’s contention that his condition was not
amenable to treatment. See Moore v. Astrue, 572 F.3d 520, 525 (8th Cir. 2009)
(explaining that if an impairment can be controlled by medication or treatment,
then it cannot be considered disabling). Finally, there is evidence that Peet
failed to attend several treatment sessions at Pines Behavioral Health Services
and that Peet stopped attending counseling at the time of the second ALJ
hearing. AR 492; AR 495; see also AR 49. “A failure to follow a recommended
course of treatment also weighs against a claimant’s credibility.” Guilliams v.
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Barnhart, 393 F.3d 798, 802 (8th Cir. 2005) (citing Gowell v. Apfel, 242 F.3d
793, 797 (8th Cir. 2001)).
There is some substance to Peet’s third claim of error regarding his
inability to pay for treatment. The Eighth Circuit has acknowledged that a lack
of financial resources can justify a failure to seek treatment or to follow
prescribed treatment. Johnson v. Bowen, 866 F.2d 274, 275 (8th Cir. 1989).
While a lack of such resources merits consideration, it is not determinative.
Murphy v. Sullivan, 953 F.2d 383, 386 (8th Cir. 1992). Unlike in Johnson, in
Peet’s case there is a trust fund that was established to help pay for his
therapy, and Peet has, in fact, received counseling. There is no evidence that
Peet was ever denied medical treatment due to a lack of financial resources.
See Goff v. Barnhart, 421 F.3d 785, 793 (8th Cir. 2005). Rather, Peet explained
that he stopped seeing his then-current counselor and that he is not seeing
anyone else because his trust fund does not cover the additional expenses such
as gas, food, or travel expenses that he would incur finding a new therapist.8
Thus, although Peet has funds available to help pay for therapy, he may not
have all the funds he would need to receive treatment from the particular
therapist he likes.
While it may have been improper for the ALJ to discredit Peet solely on
the basis that Peet was not pursuing therapy, the record reveals that the ALJ
did not do so. Rather, the ALJ looked at the lack of objective medical evidence,

Peet does not explain why he no-showed on two of his sessions at Pines
Behavioral Health Services.
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Peet’s activities of daily living, and the fact that Peet’s symptoms showed signs
of improvement following treatment but that he later stopped treatment. Other
evidence also supports the ALJ’s decision. For example, the ALJ noted that
Peet only began seeing Hansen shortly before the second administrative
hearing, after his case had been remanded, and that he did so at the
encouragement of his attorneys. AR 16; see Shannon v. Chater, 54 F.3d 484,
486 (8th Cir. 1995) (expressing skepticism when a claimant’s encounter with
caregivers appears linked to a quest to obtain benefits). And while Peet stated
that he could not work because he did not get along with others, he also
acknowledged to Dr. Swenson that he tended to get tired or bored of a job
quickly which would contribute to his short periods of employment. AR 445.
The ALJ is permitted to take into consideration any inconsistencies in the
claimant’s own statements that appear in the record when making a credibility
determination. Chamberlain v. Shalala, 47 F.3d 1489, 1494 (8th Cir. 1995). In
sum, substantial evidence in the record as a whole supports the ALJ’s decision
that Peet’s subjective complaints are not entirely credible.
B.

Medical Opinion Evidence

Peet contends that the ALJ improperly substituted his own opinion
regarding the frequency and severity of Peet’s anger outbursts for that of Dr.
Robert Pelc, a licensed psychologist and medical expert that testified at both
ALJ hearings.9 In general, an ALJ is forbidden from substituting his or her own

Peet makes the assertion that Dr. Pelc apparently did not review Dr.
Kliman’s report and that the ALJ possibly failed to provide Dr. Kliman’s report
9

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opinion for that of a physician. See, e.g., Finch v. Astrue, 547 F.3d 933, 938
(8th Cir. 2008); Pratt v. Sullivan, 956 F.2d 830, 834 (8th Cir. 1992). But “[t]he
ALJ may reject the conclusions of any medical expert, whether hired by the
claimant or the government, if they are inconsistent with the record as a
whole.” Pearsall v. Massanari, 274 F.3d 1211, 1219 (8th Cir. 2001) (citation
omitted). The court reviews the ALJ’s treatment of medical opinion evidence
under the substantial evidence rubric. Renstrom v. Astrue, 680 F.3d 1057,
1065 (8th Cir. 2012).
At the first hearing, Dr. Pelc opined about certain limitations Peet
possessed. AR 67. As to Peet’s anger outbursts, Dr. Pelc noted that the medical
records “really [don’t] give a frequency” and that “the frequency is sometimes
random and can be either more sparse or more frequent, but it has to be
something other than an isolated incident or a couple of isolated incidents to
warrant” Peet’s IED diagnosis. AR 69. Dr. Pelc explained that he believed Peet
had moderate limitations on social functioning “in the main.” AR 68. But “on a
sustained basis, one would expect that [there] would be interferences at a
marked level because of [Peet’s] angry outbursts.” AR 68.
At the second hearing, Dr. Pelc again testified that “there is no

to Pelc. See Docket 16 at 26 n.10; id. at 32 n.13. Dr. Kliman’s report is listed
as exhibit 20F in the administrative record. It is specifically mentioned in the
list of exhibits attached to the ALJ’s decision that is the subject of this court’s
review (AR 26), and Dr. Pelc testified at the second hearing that he reviewed all
exhibits “through 22F,” thus including Dr. Kliman’s report. AR 33 (also
acknowledging the receipt of two more exhibits the morning of the hearing).
While Dr. Pelc may not have relied on Dr. Kliman’s report, that does not mean
he did not review it.
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description in this record around how frequently [the outbursts] happen, to
what extent that they are regularly occurring. They are simply noted to be part
of his history, and when those events are happening.” AR 35. He observed,
however, that Peet’s latest counseling records indicated some improvement in
Peet’s ability to control his anger and that Peet was engaged in more
socializing. AR 35. Regarding Peet’s social functioning, Dr. Pelc opined that
Peet “would be at a marked level of limit[ation] when he is having one of these
angry outbursts.” AR 35. But, “absent those [outbursts], he would not be
impaired socially.” AR 35.
Peet reads Dr. Pelc’s opinion at the first hearing as standing for the
proposition that Peet would have sustained, marked limitations on his ability to
function socially due to his anger outbursts. Thus, Peet contends that the
ALJ’s inclusion of “moderate to marked,” rather than simply marked limitations
in Peet’s RFC, was error.
First, it is not clear that the ALJ relied on Dr. Pelc’s testimony from the
first hearing in light of Dr. Pelc’s more current testimony at the second hearing.
Second, and irrespective of Dr. Pelc’s testimony at the first hearing, his
testimony at the second hearing is clear that in the absence of one of Peet’s
outbursts, Peet would not have marked limitations on his ability to function
socially. And before providing that portion of his opinion, Dr. Pelc observed that
Peet’s medical records from his time with counselor Hansen showed “that he
was engaged in more socializing, planning to attend a wedding where
apparently he was appearing more relaxed. He was not experiencing panic
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related symptoms or anxiety exacerbation.” AR 35. Those records did not exist
at the time of the first hearing. Finally, a fair reading of Dr. Pelc’s testimony at
the first hearing is that he was trying to account for the lack of medical
evidence documenting the periodicity of Peet’s outbursts. When a claimant
such as Peet has an episodically occurring impairment, the ALJ should be
mindful of the frequency and duration of its manifestations, as well as periods
of remission. Tate v. Apfel, 167 F.3d 1191, 1196-97 (8th Cir. 1999) (noting
periodic seizures and headaches can be diabling); see also Wilcox v. Sullivan,
917 F.2d 272, 277 (6th Cir. 1990). As Dr. Pelc explained at both hearings, Peet
did not have marked limitations on his social functioning abilities because
there was a possibility that he may experience an anger outburst at some
unknown time. Rather, his baseline social functioning limitations were
moderate and only became marked when such an outburst occurred. He was
not, however, able to testify how often those outbursts would occur because
none of Peet’s caregivers had ever documented such a finding. 10 In addition to
Dr. Pelc’s testimony that Peet’s limitations would range from the moderate to
Aside from mentioning Peet’s reports of incidents at work and home,
none of Peet’s medical care providers have issued an opinion on his ability to
work. Dr. Swenson’s consultative examination mentions that Peet’s mood was
pleasant, although Peet reported it was subject to fluctuation. AR 448.
Dr. George Richards, a state agency physician, completed a mental RFC in
2009. AR 440-43. As relevant here, Dr. Richards’ report opined that Peet was
moderately limited in his ability to accept instructions and respond
appropriately to criticism from supervisors and his ability to get along with
coworkers or peers without distracting them or exhibiting behavioral extremes.
AR 441. Although not specifically addressing Peet’s ability to work, Peet’s
mother testified briefly at the second ALJ hearing where she stated that Peet
used to have daily anger outbursts at home although more recently “it’s like
maybe twice a week.” AR 57.
10

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marked level, Dr. Pelc completed two medical source statements wherein he
similarly noted that Peet would have moderate to marked limitations in his
abilities to function socially. AR 525; AR 613. Thus, the ALJ’s formulation of
Peet’s RFC as including moderate to marked limitations on his social
functioning abilities was consistent with Dr. Pelc’s opinion. Therefore, the ALJ
did not substitute his own opinion for that of Dr. Pelc’s.
C.

Past Relevant Work

Step four requires the ALJ to determine if the disability claimant can
perform his or her past relevant work. It is the claimant’s burden to prove he or
she cannot perform past relevant work, and the court will uphold the ALJ’s
determination if it is supported by substantial evidence. Hill v. Colvin, 753 F.3d
798, 800 (8th Cir. 2014). Past relevant work is defined as “work that you have
done within the past 15 years, that was substantial gainful activity, and that
lasted long enough for you to learn to do it.” 20 C.F.R. §§ 404.1560(b);
416.960(b). Under this definition, past relevant work includes both the
demands of a claimant’s actual previous job as the claimant performed it as
well as the job duties of the occupation as generally required by employers
throughout the national economy. Wagner v. Astrue, 499 F.3d 842, 853 (8th
Cir. 2007) (quoting Jones v. Chater, 86 F.3d 823, 826 (8th Cir. 1996)). The ALJ
should compare the claimant’s RFC with the physical and mental demands of
the claimant’s past relevant work in order to determine if the claimant can
perform his or her past relevant work. Pfitzner v. Apfel, 169 F.3d 566, 569 (8th
Cir. 1999). Additionally, the ALJ may elicit the testimony of a vocational expert
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in order to determine if a claimant can perform past relevant work. Wagner,
499 F.3d at 853. Finally, the ALJ should make explicit findings on this issue.
Kirby v. Sullivan, 923 F.2d 1323, 1326 (8th Cir. 1991).
1.

ALJ Hearing

At the end of the second hearing, the ALJ elicited the testimony of Jerry
Grevat, a vocational expert (VE). AR 58. The ALJ inquired about Peet’s past job
as a security guard. AR 59. The ALJ asked the VE to consider a younger
individual with a high school education and with Peet’s physical limitations. AR
59. The ALJ instructed the VE to assume the hypothetical individual could
understand, remember, and carry out two to three-step instructions and that
he could interact socially on an occasional to frequent basis. AR 60. Under that
hypothetical, the VE testified that the individual could perform the security
guard position. AR 60. When the ALJ asked if it would make a difference that
the individual could not communicate well on the phone but could hear
conversations and read lips, the VE responded that it would not. AR 60.
The ALJ then asked the VE to consider the addition of anger outbursts,
which the ALJ defined as yelling. AR 60. The ALJ asked how many outbursts
an employer would tolerate before termination. AR 60. The VE responded that
it could be more than two or three such episodes within a one to two week
period, although employers may not tolerate it at all. AR 61. The VE stated that
no employer would tolerate an employee physically striking a supervisor. AR
61.

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2.

ALJ Decision

The ALJ noted that the VE prepared a written report concerning Peet’s
past employment according to the Dictionary of Occupational Titles. AR 19.
The ALJ found that the security guard position was at the light exertional level
and that Peet had performed it long enough to constitute substantial gainful
activity. AR 19. The ALJ recalled the VE’s testimony, including the testimony
concerning anger outbursts, and concluded that Peet could still perform past
relevant work as a security guard. AR 20.
Here, Peet argues that the ALJ’s hypothetical question to the VE did not
contain the appropriate social limitations discussed by Dr. Pelc. Specifically,
Peet asserts that Dr. Pelc testified Peet would have marked limitations on his
ability to function socially.
The court has already determined that Dr. Pelc did not testify in the
manner Peet suggests. Dr. Pelc did not opine that Peet had marked limitations
on his ability to function socially because there was a chance that Peet may
have an anger outburst at some time. Rather, Dr. Pelc testified that Peet had
only moderate limits on his ability to function socially, but if Peet did
experience an anger outburst, then the outburst would raise him to the
marked level while it occurred. Neither the ALJ nor the VE were required to
assume that Peet’s ability to function socially would always be at the marked
level when the evidence in the record did not support such a conclusion.
Moreover, other evidence in the record supports the ALJ’s determination
that Peet could perform past relevant work as a security guard. For example,
26

the VE noted that the security guard position typically involved being alone
forty to fifty percent of the time. AR 60. While Peet would not be alone all the
time, such a position would accommodate Peet’s desire to work by himself.
Additionally, the VE took account of Peet’s hearing loss and his inability to
speak on the telephone. AR 60. The ALJ also observed the security guard
position was at the light exertional level, which was within the medium level
the ALJ found Peet capable of performing. The ALJ determined that Peet had
not met his burden of showing that he could not perform his past relevant
work, and substantial evidence supports the ALJ’s decision.
CONCLUSION
Substantial evidence supports the ALJ’s assessment of Peet’s RFC. The
ALJ did not substitute his opinion for that of Dr. Pelc. Additionally, substantial
evidence supports the ALJ’s determination that Peet could perform his past
relevant work. Accordingly, it is
ORDERED that the decision of the Commissioner is affirmed.
Dated September 28, 2015.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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