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Preston v. Berryhill

United States District Court, D. South Dakota, Western Division

February 8, 2018





         Plaintiff, Robert Preston, M.D., seeks judicial review of the Commissioner's final decision partially denying his application for disability insurance benefits (DIB) under Title II of the Social Security Act.[1] Dr. Preston has filed a complaint and has requested the court to reverse the Commissioner's final decision denying him disability benefits and to enter an order awarding benefits. Alternatively, Dr. Preston asks the court to remand the matter to the Commissioner for further proceedings. The matter is fully briefed and is ready for decision. For the reasons more fully explained below, the Commissioner's decision is reversed and remanded.


         This appeal of the Commissioner's final decision denying benefits is properly before the district court pursuant to 42 U.S.C. § 405(g). This matter is before this magistrate judge pursuant to the consent of the parties. See 28 U.S.C. § 636(c).


         A. Procedural History

         Plaintiff Robert Preston filed an application for disability dated August 29, 2013, alleging an onset date of November 14, 2009 (AR 202-208) which was denied on December 4, 2013. Exhibit 3B, AR 116-118.

         He filed a Request for Reconsideration on December 11, 2013 (AR 119) which was denied on April 24, 2014. AR 122-127.

         He requested a hearing (AR 128-129) which was held on April 9, 2015. Transcript of Oral Hearing AR 39-87.

         On August 31, 2015, the ALJ issued a partially favorable decision finding plaintiff disabled as of March 1, 2014, but not before that date. AR 12-36.

         Plaintiff requested a review of the partially favorable decision on November 2, 2015, before the Appeals Council. AR 7-10.

         The Appeals Council denied plaintiff's request to review on September 20, 2016 (AR 1-4) and this appeal followed.

         B. Medical Evidence

         1. Medical Treatment Records

         a. 2009

         On November 14, 2009, plaintiff was admitted to the hospital with what was eventually diagnosed as an arteriovenous malformation. He underwent emergency surgery and was hospitalized for six days. AR 361-412. Plaintiff's hemiplegia[3] had resolved to a moderate hemiparesis[4] and he started expressing some words. AR 361 (Regional Health).

         He was transferred to the rehabilitation hospital for speech and motor skills therapies on December 15, 2009, and remained in treatment at Regional Rehabilitation Hospital as both an outpatient and inpatient from December 15, 2009, through June 10, 2010. AR 361, 420-441 (Regional Health).

         b. 2010

         Plaintiff underwent occupational therapy from December 17, 2009, through January 6, 2010, which included cognitive skills training, pre-driving skills assessment. AR 420-441 (Regional Health).

         Plaintiff had improvement following his rehabilitation with none to mild impairment in his visual memory, sequencing, auditory and motor recall/recognition, auditory memory and sequencing, concrete problem solving and complex problem solving, and mental flexibility. AR 420-421 (Regional Health).

         Plaintiff demonstrated increased independence and had tested increased independence with high-level math, with minimal difficulty with functional math secondary to language impairments, specifically agnosia, which he continued being treated with speech therapy. AR 421 (Regional Health).

         At the time of his physical therapy discharge on January 6, 2010, he was independent in all activities of daily living, meal preparation tasks, and financial responsibilities, and was released to driving. AR 420-421 (Regional Health).

         Plaintiff was tested as “functional” in verbal language of a conversational level, but continued with significant difficulty with word finding and paraphasias[5] with more complex and medical information. AR 424 (Regional Health).

         His occupational therapist opined that it would be difficult for him to return to work as a physician given his continued expressive language deficits. AR 424 (Regional Health).

         Plaintiff had a neuropsychological evaluation on February 16, 2010, with Dr. Scott Cherry. AR 430-433 (Dr. Scott Cherry). Plaintiff was reporting symptoms of increased sleep, memory deficits depending on his fatigue level, and word finding problems. He also had difficulty in tactile sensation on the right, lots of changes in his smell and taste, occasional foot drag and dizziness upon standing. AR 430-431 (Dr. Scott Cherry).

         Dr. Cherry opined that his most profound deficits were in delayed auditory recognition, executive functioning of access to semantic memory, verbal fluency, and hypothesis testing and generation. AR 432 (Dr. Scott Cherry). Plaintiff also demonstrated impairments of psychomotor speed, processing speed, fine motor speed bilaterally, and grip strength bilaterally on the objective testing. AR 432 (Dr. Scott Cherry).

         Dr. Cherry noted plaintiff was experiencing a significant degree of depression with associated anxiety sufficient enough to produce confusion, forgetfulness and difficulties in concentration and attention. AR 432. Dr. Cherry opined plaintiff had somatic complaints of difficulty sleeping and fatigue which were common given his diagnosis. AR 433.

         Dr. Cherry noted the mental status examination revealed plaintiff could answer questions posed, he was cooperative and motivated, he was oriented to time, person, place and situation, he had a neat appearance, he had average sociability, gross motor appeared appropriate, his mood and affect were appropriate to the situation and consistent throughout the evaluation, he could form logical sentences and speech sequences, and content of thought was oriented. AR 431.

         Dr. Cherry opined that plaintiff could not return to work as a practicing physician at that time and recommended a repeat neuropsychological evaluation in three to six months. AR 433.

         Plaintiff went to the Rehabilitation Medicine and Pain Center on April 27, 2010, in follow-up from his prior rehabilitation stay in 2009. AR 808 (Rehab). He was able to remember 4 words--helicopter, NASH, encephalomyelitis, and Crohn's--immediately, after 1 minute, and after 5 to 10 minutes despite significant distraction. AR 808 (Rehab). Plaintiff had no overt word finding difficulties; only some hesitancy like he is rethinking how he phrases his words. AR 808 (Rehab). Dr. Christina Cote, D.O., opined plaintiff had marked improvement in functional abilities and tests indicated significant improvement in cognition, memory, processing speed, etc. AR 808 (Rehab). In fact, plaintiff corrected Dr. Cote on at least one occasion when she discussed the incorrect tendon for an injection. AR 808 (Rehab).

         Plaintiff first saw Dr. Charles Lord, psychiatrist, on June 4, 2010. Plaintiff reported difficulty sleeping, difficulty getting to sleep, waking up in the middle of the night and not being able to get back to sleep. Since the cerebra hemotoma (CVA), he has had more significant problems sleeping. His wife reported that he suffers a lot of anxiety as well as neurocognitive difficulties following the accident. Plaintiff denied feeling depressed although Dr. Lord indicates plaintiff had difficulty assessing his functioning according to others around him and others perceive him as having more problems than he does. He reported difficulty remembering things and having to write things down. He did undergo rehab and has learned adaptive techniques. He tried a selective serotonin reuptake inhibitor (SSRI) for a period of time but discontinued it due to fatigue, drowsiness and uncomfortable things and thoughts. He described he was losing control over his emotions. He had been riding a stationary bike and doing some weight lifting and speech therapy. The neuropsychological testing showed difficulty with executive functions, memory, verbal fluency, delayed auditory recognition, impairment and psychomotor speed and processing speed, grip strength and fine motor speed bilaterally. The testing also demonstrated a depression with anxiety tied to his confusion and forgetfulness, difficulty concentrating, and focus and attention. Dr. Lord felt this to be consistent with bilateral, frontal lobe involvement and subcortical involvement. AR 777-778 (Dr. Lord).

         Dr. Lord noted that plaintiff's aphasia has been improving and improvement in motor involvement. However his difficulty with sleep, anxiety and mood were significant enough that he presented to Dr. Lord for treatment. AR 777-778 (Dr. Lord).

         On mental status examination, plaintiff's speech was reasonably clear, but had difficulty finding words. Affect was tense and anxious, but no extreme lability. Thought processes were reasonably clear and logical. Auditory reception was good, although it took some time to recognize certain questions and respond. He admitted to worrying about the future. He was looking forward to being involved in [an] intensive rehabilitation program that would help him with the difficulties he is having. He worried about his wife and her dealing with his debilitation. He was looking forward to getting back to some of the river boat rafting and some other activities that he and his wife enjoyed previously. He has difficulty organizing around those kinds of issues and planning. He felt that his friends and family were quite invested in him and getting him back to his routine there. His sensorium[6] was relatively clear, however, upon demands for concentration he gets somewhat confused and struggles to find appropriate responses. He has had a reasonably good physical recovery. He hopes to have more neurocognitive recovery as well. Dr. Lord assessed his global assessment of functioning (“GAF”) between a 49 and a 51.[7] AR 780 (Dr. Lord).

         Dr. Lord recommended medication for sleep and mood stabilizing agent medication. AR 780 (Dr. Lord).

         Plaintiff saw Dr. Lord on June 14, 2010, with his wife Krista. They discussed his change in his sleep issues and his difficulty sleeping following the AV malformation bleed. AR 774 (Dr. Lord). Dr. Lord opined that while he has gained a lot of physical function and cognitive function, he remains fragile, fatigued, anxiety, apprehension and dysphoria. Dr. Lord estimated his GAF at 49 to 50. AR 775 (Dr. Lord).

         Plaintiff returned to Dr. Lord on July 5, 2010. They discussed that he had gone to Colorado for a trip with friends who wanted to do some rafting. Dr. Preston enjoyed the trip. He didn't have any anhedonoia or dysphoria, but reported anxiety at times that could be disorganizing. His sleep continued to be a problem, getting only four to five hours a night and waking frequently. His GAF was estimated at 48 to 50 and at the appointment, he demonstrated word finding, concentration, focus, and executive dysfunction issues. AR 773 (Dr. Lord).

         Plaintiff attended an intensive brain injury rehabilitation day program in New York from September 7, 2010, through February 10, 2011 (first cycle) and returned for the second cycle from March 11, 2011, through July 28, 2011. AR 442-636 (NYU Lagone). The brain injury rehabilitation program structures, and short and long term goals and objectives are outlined at ¶ 490-491 (NYU Lagone).

         Plaintiff underwent a baseline neuropsychological evaluation on June 17, 2010. AR 521 (NYU Lagone). He underwent subsequent evaluation on July 20, 21 and 22, 2010, and on August 5, 2010, the staff found plaintiff would benefit with undergoing a second cycle. AR 530 (NYU Lagone).

         He returned to Dr. Lord on July 26, 2010. The new medication prescribed, Depakote, did not work out well. While it helped him sleep, it made him feel heavy and lethargic. His GAF was estimated at 49 to 50. Plaintiff reported that he had been to New York to a head injury program (i.e., the NYU Lagone Medical Center), and they have accepted him where he would start in September. Plaintiff reported fatigue and apprehension but no significant dysphoria, anhedonia, or anxiety. AR 772 (Dr. Lord).

         Plaintiff returned to Dr. Lord on August 9, 2010. Estimated GAF was 49 to 50. He reported fatigue, weakness and the like. AR 771 (Dr. Lord).

         At a follow-up examination with Dr. James Bowman, M.D., (at Regional Health) on August 20, 2010, plaintiff had no focal deficits, sentence construction and overall response were fairly well preserved, and there was somewhat slow on some of the synthesis. AR 700 (Dr. Bowman).

         In [an] appointment of August 30, 2010, [with Dr. Lord] plaintiff reported sleeping much better since on the medication Temazepam. However, there were days when he was tired and had fatigue and energy problems. Dr. Lord specifically noted “For example, in the waiting room, he will often be sleeping, but again quite consistent with his post CVA course.” AR 770 (Dr. Lord).

         His progress and treatment [at the NYU head injury program] from October 4 through 28 of 2010, is summarized in the November 5, 2010, letter to his treating psychiatrist, Dr. Charles Lord. AR 493-497 (NYU Lagone). Plaintiff was initially found to be impaired (from mild to severe range) on several standard computerized measures of basic attention and concentration. As a result of intensive remedial training, plaintiff showed marked improvement in his attentional functions and he now tested within normal limits on standard computerized measures of attention and concentration. AR 493 (NYU Lagone). He was also better able to track the discussion and to respond in a more targeted manner; and when away from the program he is now more able to follow conversations and read the newspapers and journal articles, but is still vulnerable to distractions. AR 493-494 (NYU Lagone).

         Plaintiff integrated well into the therapeutic community, engaging wholeheartedly and diligently in all group remedial sessions; he is well liked by his peers, and was compassionate toward them; and he mostly smoothly works around his expressive aphasic difficulties with more active participation, and more relevant, targeted and understandable responses. AR 494 (NYU Lagone).

         On October 7, 2010, plaintiff saw Dr. Lord again and reported that he was now attending the Rusk Head Injury Institute at NYU Lagone Medical Center, and learning of ways to deal with his loss of function. Estimated GAF was around 50. AR 769 (Dr. Lord).

         Plaintiff's progress from November 1 through November 30, 2010, at the [NYU] brain injury day treatment program was summarized in the program's letter to his treating psychiatrist, Dr. Charles Lord, dated December 6, 2010. AR 511-513. Plaintiff developed two 250-word speeches, integrated them into a 300-word written personal statement, and presented it to a friendly audience. AR 511-512 (NYU Lagone).

         Plaintiff, with his counselor and wife, prepared a detailed plan of activities for a 10-day “working break” from the program. AR 512 (NYU Lagone). Plaintiff proved successful in using his daily planner to record his ability to adhere to his schedule; increased his awareness; utilized a self-monitoring checklist; and maintained a record of his daily progress and difficulties encountered. AR 512 (NYU Lagone). Plaintiff worked collaboratively with his home coach (his wife) who cued him to take a break when she observed signs of neurofatigue. AR 512 (NYU Lagone). The program identified areas of vulnerability requiring further remedial attention. These included plaintiff's need to learn more about how his multiple deficits interact and impact his daily life functioning; become better at self-monitoring for early signs of deficits so that he could apply compensatory techniques; systematically practice these compensatory techniques so that they could become habituated, thus enhancing his functional life competence. AR 513 (NYU Lagone).

         His progress from December 1, 2010, through December 16, 2010, is summarized in the letter from NYU Lagone Medical Center to Dr. Lord dated January 7, 2011. AR 509-510 (NYU Lagone). Dr. Lord was advised that plaintiff's ability to remain optimally focused and engaged throughout interpersonal group sessions was improved (by building in “preemptive” neurofatigue breaks, self-cuing to take notes and preplanning his responses in writing). AR 509 (NYU Lagone). Plaintiff was also more effectively - calmly and smoothly - working around his expressive aphasic problems through application of verification strategies. AR 510 (NYU Lagone). His responses are more targeted and fluid, he is more relaxed and self-assured when speaking, and his wife reported very positive feedback from family and friends concerning plaintiff's willingness to engage actively in discussions, his initiation of activities, and his increased self-confidence. AR 510 (NYU Lagone).

         He returned to Dr. Lord on December 21, 2010. He reported he was back from his brain injury program and was considering doing another cycle of rehabilitation. At his apartment in New York, he reported that he would sleep four to five hours, be awake for a half hour and then go back to sleep for another couple hours. His wife, son and daughter were all there spending time and helping him through the brain injury rehabilitation process. His GAF was estimated at 48 to 50 and Dr. Lord noted that he was reasonably alert and cooperative and coherent throughout the examination. AR 768 (Dr. Lord).

         c. 2011

         [Back at NYU] Plaintiff's individual and group sessions occurred between 10:00 a.m. and 3:00 p.m., at the NYU Rusk Institute Brain Injury Day Treatment Program with Licensed Mental Health Counselor (LMHC) Ellen Daniels-Zide, Ed. D., who noted plaintiff was fully focused and engaged at sessions on January 3, 4, 5, 6, 10, 11 and 13, 2011. AR 592-597 (NYU Lagone). In the afternoon on January 18, 2011, the LMHC notices plaintiff was engaged and focused during speech writing “though he required neurofatigue breaks.” AR 598 (NYU Lagone). At the subsequent community session later that afternoon, he had increased neurofatigue but was focused, engaged, cued self to use verification strategy to remain engaged and clarify understanding. AR 598 (NYU Lagone).

         On Wednesday, January 19, 2011, LMHC Daniels-Zide notes in the afternoon session between 2:30 and 3:00 p.m. state: “Very neurofatigued. Difficulty sustaining focus . . . required frequent neurofatigue breaks.” AR 599 (NYU Lagone). He is “prone to neurofatigue.” AR 599 (NYU Lagone).

         On January 20, 2011, LMHC Daniels-Zide documents “increasingly neurofatigued, ” but he was able to re-engage strategies to remain focused and check accuracy. AR 600 (NYU Lagone). LMHC Daniels-Zide did not note any neurofatigue on January 21, 2011. AR 601 (NYU Lagone).

         During the late afternoon session on January 24, 2011, LMHC Daniels-Zide documents “Very neurofatigued (yawning; eyes closing). Required frequent/longer breaks. Difficulty elaborating ideas.” AR 602 (NYU Lagone). LMHC Daniels-Zide did not note any neurofatigue on January 25, 2011. AR 603 (NYU Lagone).

         During the late afternoon session on January 26, 2011, LMHC Daniels-Zide again notes “Very neurofatigued. Greater problems processing information. Accepted staff cues to employ compensatory strategies.” AR 604 (NYU Lagone). On January 31, 2011, LMHC Daniels-Zide notes “Very prone to neurofatigue.” AR 606 (NYU Lagone). At the later occurring session that afternoon plaintiff was punctual, participated appropriately, volunteered to contribute to discussion, made relevant comments, and was empathetic to peers. AR 606 (NYU Lagone).

         On February 1, 2011, LMHC Daniels-Zide notes that he participated appropriately though he was neurofatigued (yawning and voice low). AR 607 (NYU Lagone). He was able to use strategies to stay engaged and focused. AR 607 (NYU Lagone).

         LMHC Daniels-Zide noted February 2, 2011, again that plaintiff was prone to neurofatigue and his errors were increased when reading and slower processing. AR 608 (NYU Lagone). Yet, during the afternoon sessions he was fully engaged and focused. AR 608 (NYU Lagone). Plaintiff did not have neurofatigue noted on February 3, 7, 8, 9 and 10, 2011. AR 609-613 (NYU Lagone).

         Plaintiff was retested [at NYU] through neuropsychological testing in February of 2011, where he showed improvements in his attention, reaction, visual discrimination, conditioner, time estimation tests. The doctors concluded that plaintiff's basic attention and concentration functions had improved to be now within normal range. AR 504 (NYU Lagone). His visual perception domain improved with the exception of one of the tests. AR 505 (NYU Lagone). His performance remained moderately impaired on a test of word fluency and mental control. This test has been shown to be sensitive to frontal lobe dysfunctioning. He remained in need of further intensive remedial training. Plaintiff made significant gains in the area of language and communication in his functional life. AR 506 (NYU Lagone). His memory function remained in the mildly to moderately impaired range. AR 506 (NYU Lagone). He remained severely impaired in several of the higher level reasoning domain testing. AR 507 (NYU Lagone).

         [Plaintiff] saw Dr. Lord on March 1, 2011 with an estimated GAF of 48 to 50. He was reasonably alert, cooperative, and coherent throughout. AR767 (Dr. Lord).

         Plaintiff did not have neurofatigue noted on March 7, 8, 9, 10, 14, 15, 16, 17, 21 and 22, 2011. AR 614-623 (NYU Lagone).

         On March 23, 2011, plaintiff was verifying his strategies more often but still required cuing. He did ask for a neurofatigue break but able to re-engage. AR 624 (NYU Lagone). On March 24, 2011, LMHC Daniels-Zide again notes that he is prone to neurofatigue which slows processing and decreases accuracy. AR 625 (NYU Lagone).

         On March 28, 2011, LMHC Daniels-Zide notes that plaintiff's neurofatigue slowed his processing and increased his aphasic problems. In his individual counseling on that day, the doctor discussed monitoring for early signs of deficits so that he can apply strategies and he was receptive to coaching prompts. AR 626 (NYU Lagone). LMHC Daniels-Zide notes that she discussed [with Mrs. Preston] the nature of her husband's brain injury (permanence, limitations in neurofatigue) and discussed with her how to detect early signs. AR 626 (NYU Lagone).

         On March 29, 2011, LMHC Daniels-Zide again notes that he becomes very neurofatigued and he requested frequent breaks. Processing was significantly slowed and he was less accurate with his neurofatigue. AR 627 (NYU Lagone).

         On March 30, 2011, LMHC Daniels-Zide also notes that he was neurofatigued but was able to stay engaged and was receptive to staff prompts to verify and stay alert. The doctor again noted that he was prone to neurofatigue which slowed his processing and reduced accuracy. AR 628 (NYU Lagone).

         On May 9, 2011, plaintiff saw Dr. Lord who noted he still had significant problems with neurocognitive function but was more fluent and was able to use strategies to help with recall and retention. He had memory issues and indicated that sometimes he even forgets that he has memory issues. He continued to have difficulties with his sleep, co-morbid anxiety and mood related issues. His GAF was estimated around 48 to 50. AR 766 (Dr. Lord).

         In the [NYU] discharge summary dated August 5, 2011, LMHC Daniels-Zide and David Biderman, Ph.D., recommend “Dr. Preston should continue to review (on his own and with his wife, his “home coach”) his program notes and DVDs. This will be necessary to maintain his awareness and understanding (despite the presence of memory gaps); and help him recall and systemically apply his learned compensatory techniques so that they could become habituated, and thus fully integrated into his functional life repertoires.” AR 442 (NYU Lagone). Plaintiff accepted the fact he could not return to his medical practice, and there was no doubt plaintiff benefited from his participation in the treatment program and had become more functionally competent. AR 442-443 (NYU Lagone).

         On August 31, 2011, plaintiff told Dr. Bowman he did not have speech difficulties or memory lapses or memory loss. AR 654 (Dr. Bowman). The medical findings showed plaintiff was fully oriented, he had a normal mood and affect, he was cooperative, active, and alert, and he had good judgment. AR 655 (Dr. Bowman).

         After plaintiff completed his NYU Lagone Medical Center's rehabilitation program, he saw Dr. Lord on August 31, 2011, [the same day as the above-noted visit with Dr. Bowman] and reported he had difficulty with recall and some neurocognitive difficulties when there are interruptions midstream. He often will lose track of what he was talking about with only a minor interruption. He had a book with him which is a reminder that he writes things down every day regarding schedules and important meetings. AR 765. Dr. Lord noted plaintiff was coherent and logical throughout the interview, he was cooperative, alert and personable, and he was oriented to person, place and time. AR 765 (Dr. Lord). He enjoyed going to his medical clinic and helping out, and admitted the rehabilitation program helped him a lot regarding adjusting to his post-stroke course. AR 765 (Dr. Lord).

         He returned to Dr. Lord on October 28, 2011, and reported that he had a seizure since his last appointment. He had gone on a river boat excursion and he said it was way too much stress. He had a beer at the end of a couple of days and had a seizure. It was nocturnal and he had not taken his temazepam medication that night. Estimated GAF was 50 to 52. AR 764 (Dr. Lord).

         Plaintiff returned to Rapid City Regional Hospital in October 2011, and the mental status examination indicated he was awake and alert with appropriate attention, cognition and fund of knowledge may be slightly decreased from an executive functioning standpoint, but it was not thoroughly assessed in that setting. AR 806 (Regional Health-Dr. Robert Finley). Plaintiff was cooperative, followed commands and answered questions appropriately. AR 806 (Regional Health-Finley). Plaintiff was deemed to have “done very well with significant improvement” of right-sided motor function, and “significant cognitive improvements.” AR 806 (Regional Health-Finley).

         Plaintiff underwent a sleep study (polysomnograph) [also at Regional], which confirmed the presence of moderate Obstructive Sleep Apnea Syndrome. AR 730 (Regional Health--Finley). Plaintiff was prescribed a Continuous Positive Airway Pressure (CPAP) machine with a setting of 7 cm H2O. AR 730 (Regional Health--Finely). He achieved a sleep efficiency of 96 percent when he slept 6 hours and 57.5 minutes with time in bed of 7 hours and 16.5 minutes. AR 731 (Regional Health--Finley).

         He saw Dr. Lord on December 28, 2011. He reported that he was a little depressed after his seizure and didn't remember things and was obviously agitated. He said the seizure happened after he was sleep deprived, drove long hours on the road to get home, and had a beer after the river trip. He was feeling better now and staying away from alcohol. He reported that he was working in his own medical clinic in an administrative role. Estimated GAF of 50 to 54. When talking about his wife, his work, their marriage and teamwork, he was labile. He was on the verge of tears regarding his affects as it relates to the losses and the stressors. AR 763 (Dr. Lord).

         d. 2012

         On [Plaintiff's] appointment of March 8, 2012, [with Dr. Lord] they talked about some different medications to help him sleep. He had anxiety and mood related issues. He reported that he was enjoying skiing and his physical strength was good but he was fatiguing easier than before. Estimated GAF of 50 to 52. He continued to work in his clinic in the administrative role. AR 762 (Dr. Lord).

         When plaintiff returned to Dr. Bowman in April 2012, he denied memory lapses, memory loss, or speech difficulties. AR 650-651 (Dr. Bowman). Plaintiff was fully oriented, had a normal mood and affect, he was cooperative, active and alert and he exhibited good judgment. AR 651 (Dr. Bowman).

         When plaintiff returned to Rapid City Hospital in May 2012, he reported he was struggling with adjusting to sleeping with the CPAP mask. AR 796 (Regional Health--Finley). He also reported he had a nocturnal seizure in December 2011, which the treating doctor deemed related to significant sleep deprivation. AR796 (Regional Health--Finley). Plaintiff reported that on a regular basis he does a lot of river running, camping, doing an excessive amount of work in and out of the river and loading boats, etc. AR 796 (Regional Health--Finley). The mental status examination showed he was awake and alert, he had appropriate attention, cognition and fund of knowledge were stable, he could answer questions and follow commands, and he was cooperative. AR 796 (Regional Health--Finley).

         [With Dr. Lord] On May 3, 2012, he talked about having some trips planned regarding his obsession of river rafting, which he enjoys. He was encouraged to diet and exercise moderately. His GAF was 52 to 53. AR 761 (Dr. Lord).

         On August 23, 2012, he reported [to Dr. Lord] he was doing well on Lamictal. He has worked hard to get back into the clinic where he was working in the business part of it. His concentration and focus were reasonably good and he was mildly disheveled. His GAF was estimated at 52 to 53. AR 760 (Dr. Lord).

         Plaintiff again denied memory lapses, memory loss or speech difficulties when he saw Dr. Bowman in August 2012. AR 647 (Dr. Bowman). Plaintiff was fully oriented, had a normal mood and affect, he was cooperative, active, and alert, and he exhibited good judgment. AR 647 (Dr. Bowman).

         In November 2012, plaintiff told Dr. Bowman he did not have memory lapses, memory loss, or speech difficulties. AR 643 (Dr. Bowman). Plaintiff was fully oriented, had a normal mood and affect, he was cooperative, active, and alert, and he exhibited good judgment. AR 644 (Dr. Bowman).

         On November 21, 2012, Plaintiff's wife Krista came with him to his appointment with Dr. Lord. She talked about some of the stressors. They were looking at selling their clinic to a hospital. Plaintiff continued to work at the clinic. Estimated GAF was 50 to 53. AR 759 (Dr. Lord).

         e. 2013

         On February 20, 2013, plaintiff saw Dr. Lord. They talked about what he learned at the head injury program at NYU and that helps him in managing his symptoms. The program helped him find ways to deal with his deficits. He continued to discuss selling their practice or trying to continue to manage it. estimated GAF was 50 to 53. AR 757 (Dr. Lord).

         In March 2013, plaintiff again denied having memory lapses, memory loss, or speech difficulties in an appointment at Regional Health. AR 793 (Regional Health--Finley). Plaintiff was fully oriented, his recent and remote memory were intact, fund of knowledge was intact, attention span and concentration were normal, language receptive and expressive languages were normal, and he had an appropriate mood and affect. AR 793 (Regional Health--Finley).

         When plaintiff returned to Dr. Bowman in April 2013, he denied having stress and sleep disturbances. AR 639 (Dr. Bowman). The mental status examination showed plaintiff was fully oriented, had a normal mood and affect, he was cooperative, ...

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