United States District Court, D. South Dakota, Western Division
MEMORANDUM OPINION AND ORDER
VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE.
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. 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.
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).
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.
filed a Request for Reconsideration on December 11, 2013 (AR
119) which was denied on April 24, 2014. AR 122-127.
requested a hearing (AR 128-129) which was held on April 9,
2015. Transcript of Oral Hearing AR 39-87.
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.
requested a review of the partially favorable decision on
November 2, 2015, before the Appeals Council. AR 7-10.
Appeals Council denied plaintiff's request to review on
September 20, 2016 (AR 1-4) and this appeal followed.
Medical Treatment Records
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 had resolved to a moderate
hemiparesis and he started expressing some words. AR
361 (Regional Health).
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).
underwent occupational therapy from December 17, 2009,
through January 6, 2010, which included cognitive skills
training, pre-driving skills assessment. AR 420-441 (Regional
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).
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).
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).
was tested as “functional” in verbal language of
a conversational level, but continued with significant
difficulty with word finding and paraphasias with more complex
and medical information. AR 424 (Regional Health).
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).
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 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 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.
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
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.
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
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).
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).
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 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. AR 780 (Dr. Lord).
Lord recommended medication for sleep and mood stabilizing
agent medication. AR 780 (Dr. Lord).
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).
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).
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
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).
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).
returned to Dr. Lord on August 9, 2010. Estimated GAF was 49
to 50. He reported fatigue, weakness and the like. AR 771
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).
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).
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).
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
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
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).
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
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).
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).
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
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
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).
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).
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).
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
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).
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).
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).
did not have neurofatigue noted on March 7, 8, 9, 10, 14, 15,
16, 17, 21 and 22, 2011. AR 614-623 (NYU Lagone).
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).
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).
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).
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).
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).
[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).
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).
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.
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
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
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).
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.
[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).
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).
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
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).
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
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).
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).
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).
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).
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).
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,