Preston v. Colvin
ORDER granting 14 Motion to Reverse. Signed by US Magistrate Judge Veronica L. Duffy on 2/8/2018. (CG)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
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
benefits are sometimes called “Title II benefits” and SSI benefits are
sometimes called “Title XVI” benefits. Receipt of both forms of benefits is
dependent upon whether the claimant is disabled. The definition of disability
is the same under both Titles. The difference--greatly simplified--is that a
claimant’s entitlement to DIB benefits is dependent upon one’s “coverage”
status (calculated according to one’s earning history), and the amount of
benefits are likewise calculated according to a formula using the claimant’s
earning history. There are no such “coverage” requirements for SSI benefits,
but the potential amount of SSI benefits is uniform and set by statute,
dependent upon the claimant’s financial situation, and reduced by the
claimant’s earnings, if any. There are corresponding and usually identical
regulations for each type of benefit. See e.g. 20 C.F.R. § 404.1520 and
§ 416.920 (evaluation of disability using the five-step procedure under Title II
and Title XVI). In this case, Mr. Preston filed his application for DIB benefits
only. AR 16, 202-08. He was insured through December 31, 2014. AR16.
Therefore, he must establish his disability prior to this date.
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).
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.
The parties filed a joint statement of material facts. See Docket No. 13.
The court has reproduced those facts herein except that the medical treatment
records have been rearranged to appear in chronological order instead of in
order by provider (and other minor changes necessitated by the reordering). In
light of the precise issues presented by this appeal, the court found a
chronological recitation of Mr. Preston’s medical records to be helpful. Also,
the court added a few explanatory footnotes.
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.
Medical Treatment Records
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
hemiplegia3 had resolved to a moderate hemiparesis4 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).
Paralysis of one side of the body.
Weakness on one side of the body.
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
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
Plaintiff was tested as “functional” in verbal language of a conversational
level, but continued with significant difficulty with word finding and
paraphasias5 with more complex and medical information. AR 424 (Regional
A type of language output error characterized by the production of
unintended syllables, words, or phrases during the effort to speak.
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 sensorium6 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 sensory faculties considered as a whole.
uses a scale from 0 to 100 to indicate social, occupational and
psychological functioning with a 100 being the most healthy mentally. A GAF
of 41 to 50 indicates serious symptoms/impairment in social, occupational, or
school functioning while a GAF of 51 to 60 indicates moderate symptoms or
difficulty. Nowling v. Colvin, 813 F.3d 1110, 1115 n.3 (8th Cir. 2016).
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
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 AR 490-491 (NYU
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 selfmonitoring 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
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).
[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 DanielsZide 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 DanielsZide 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
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
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
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
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 DanielsZide 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 abovenoted 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).
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
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
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
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).
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, active and alert, and he exhibited good judgment. AR 640
In September 2013, plaintiff reported having a busy summer and going
out on a couple boating trips. AR 788 (Regional Health--Finley). He tries to
stay active and does a fair amount of walking on a regular basis. AR 788
(Regional Health--Finley). He had no mental function complaints, and the
mental status examination showed plaintiff was fully oriented, he had intact
recent and remote memory, fund of knowledge, attention span, concentration,
language receptive and expressive language, and mood and affect. AR 789
In [an] appointment of September 16, 2013, Dr. Lord noted that plaintiff
continued with his forced retirement secondary to his CVA. He noted that
plaintiff recently sold his medical clinic to a hospital. Even with the
medication, he only gets about five to six hours of sleep. Dr. Lord talked about
trying long-acting melatonin to see if it would be helpful in sleeping longer so
that he would take less naps. Dr. Lord noted “He still has neurological fatigue
and takes naps. He doesn’t feel he would be very useful even as a greeter at
Walmart as he gets fatigued easily and needs to sleep.” His GAF was estimated
at 50 to 53. AR 755 (Dr. Lord). Dr. Lord noted that he continued “to have
reports of neurological fatigue and mood swings that are intermittent and
mild.” AR 756. The mental status findings showed plaintiff was alert,
cooperative, coherent, and oriented; verbal production was within normal
limits; he was dressed casually and appropriately; he continued to have some
difficulty with word finding and complex issues; he was able to calculate and
abstract throughout the interview. AR 756 (Dr. Lord). Plaintiff had no further
seizures since avoiding alcohol, and he continued to enjoy going on trips,
boating, rafting, and remaining active. AR 756 (Dr. Lord).
[With Dr. Bowman] Plaintiff reported he had no stress, sleep
disturbances, or other psychiatric issues, memory lapses, memory loss, or
speech difficulties [during an] October 25, 2013, examination. AR 861 (Dr.
Bowman). The mental status examination showed plaintiff was fully oriented,
had a normal mood and affect, he was cooperative, active and alert, and he
exhibited good judgment. AR 862 (Dr. Bowman).
When [Plaintiff] returned to Dr. Lord on March 3, 2014, plaintiff reported
he had neurological fatigue and often naps. He cannot go more than a couple
of hours without feeling fatigued. AR 870 (Dr. Lord).
He returned to Dr. Lord on September 10, 2014, where Dr. Lord reported
that he has fatigue and has a hard time getting things done. He can still
operate his forklift/bobcat and do some things around the place, but he gets
tired and this is frustrating for him. He says he could last about three to four
hours at most with his concentration and focus and then he has to rest.
AR 883. He talked about his trip to the Grand Canyon with his family and the
fatigue that it caused. He says that he is not sure he could do it again nor
does he want to. He talked about the weddings of two of his children which
were very stressful. He tries to stay out of things that are too stressful for him.
AR 883 (Dr. Lord).
Dr. Lord’s Opinions as to Residual Functional Capacity –
Medical Source Statement Dated [December 7], 2014.
Dr. Lord has been treating Dr. Preston since June 4, 2010. AR 777-780.
Dr. Lord was asked for his opinions with respect to plaintiff’s description
of his symptoms and limitations, Dr. Lord circled YES to indicate that the
subjective symptoms and limitations plaintiff described were consistent with
his medical condition. Dr. Lord noted left frontal CVA impairs the
emotions/attention, executive function, right motor activity and
impulsivity/compulsivity related circuits in the human brain. Rest is required
to partially compensate for these chronic dysfunctions due to circuit damage.
AR 889, 890.
Dr. Lord circled YES to indicate that the neurofatigue breaks that
plaintiff alleged are necessary to help maintain his function would be expected
to continue into the indefinite future. AR 889-890. Dr. Lord noted that
generally the usual time frame to get back to what functions you can post CVA
traumatic brain injury is two years. He responded YES to the question
whether plaintiff’s limitations after two years would be permanent. AR 889890.
Dr. Preston’s Self-Reported Functional Capacities
Function Report Dated October 3, 2013 (AR 251-260)
Plaintiff reported he suffered a stroke on November 14, 2009, and after
rehabilitation he was told he could not go back to work as a practicing
physician. AR 251, 258.
His admitted activities included feeding the four dogs (when he wakes up
in time, otherwise his wife handles this task), see to it his two horses have hay
and water, and taking at least two neurofatigue breaks, usually naps. AR 252.
In response to what he was able to do before his illness that he cannot do
now he responded, “Practice medicine. Do any activities that require
concentration no more than two hours at one time.” AR 252.
His sleep is impacted and he has to wake about 2:30 to 3:30 a.m. to use
the bathroom and it usually takes him about two hours to get back to sleep.
Disability Report Dated December 13, 2013 (AR 263-268)
Plaintiff reported he had neurofatigue that was identified by his
psychologists at NYU which causes the need for him to take 10 to 15 minute
rests, that occasionally, may turn into a two to three hour nap. These occur
every two to three hours. When he is neurofatigued, all his deficits are
accentuated. AR 263.
When asked the approximate date the changes occurred, plaintiff noted
the neurofatigue started on November 22, 2009. AR 263.
Plaintiff explained in the remarks section that “Initially, I had no use of
the right side of may [sic] body, and could not speak. My movement has
improved but I still have weakness in my right leg and ankle, accompanied by
the tendency for my right foot to turn out. Furthermore, I have a condition
called aphasia; in other words, I have trouble finding the right words to say.
Also, I still have a deficiency in memory (both short and long term), awareness
and concentration, processing information, executive functions, proper social
etiquette, spelling, reading, and typing. Epileptic seizure is another condition
that is controlled with a drug prescribed by my neurologist. The side effect of
this drug, which I experience, include incoordination, fatigue, periodic
dizziness, headaches and appetite suppression. Another condition that
plagues me is a condition called by my psychologist at NYU, neurofatige [sic],
where I am compelled to take a 10-15 minute rest that, occasionally, may turn
into a 2-3 hour nap. These occur every two to three hours during the day.
When I am neurofatigued, all my above deficits are accentuated.” AR 267.
Disability Report Dated June 18, 2014 (AR 269-274)
Plaintiff reports no changes in his function since his disability report of
December 13, 2013. AR 272.
He reports “My activities are pretty much the same. In times where there
is more stress or changes in my routine – I need to take more naps and
breaks.” AR 272.
Third Party Observations of Plaintiff--Krista Preston
Plaintiff’s wife, Krista Preston, also the officer manager for their medical
clinic called Rapid Care, submitted statements and filled out a Work Activity
Report for plaintiff because he received payments from the company and
attempted to return to work at Rapid Care following his stroke in November of
2009. AR 292-347.
Krista Preston stated plaintiff tried to go into the clinic to work on
clinician schedules with her, but it was clear he was not able to do this.
AR 300. He tried to come into the office a couple times per week, generally he
stayed for only an hour or less. Most often he came in to chat with his
longtime staff and to check the mail. We tried for him to find a “new place” in
HIS business, but it just didn’t work due to the deficits caused by the brain
injury. Neurofatigue is ever present. He needs a nap several times a day. In
addition, he had trouble with short term memory, information processing and
adynamia.8 Eventually, the business was sold to Regional Health Physicians
on July 31, 2013. AR 301.
Testimony at Administrative Hearing
Plaintiff alleges disability from November 14, 2009. AR 45. He was born
in February 1949. AR 45. He lives in a house that sits on 50 acres of land.
AR 45-56. His house is multilevel and when asked if he has problems
negotiating from floor to floor in the house, he responded “I have – we have
railings. We have banisters, but I don’t use them always . . . just part of the
time – if I have any problems.” AR 46. He didn’t drive for about a month after
his stroke but does drive now. AR 46.
In describing his work history, he testified “I practiced for a while in Hot
Springs, South Dakota, which is about three hours, it’s about - - so it’s about
60 miles south of Rapid City and so I practiced as an internist, but I didn’t care
for the practice much. So yeah, and I reopened the – we opened Rapid Care in
1990, so.” AR 47.
Plaintiff used to see Dr. Lord about every three months and now it’s
changed to once every six months. AR 48.
Adynamia is a lack of strength or vigor often associated with a
He tried to remain active “running the rivers” trying to do easier ones but
is very tired afterwards. AR 48-49. He had just recently returned from a sixday trip down the Green River with his wife and six other participants. AR 49.
When asked whether he was guiding that trip he responded “It’s a private trip.
I haven’t guided a trip since I quit in – I managed a rafting company for four
years and I also worked at the rafting company for three years in California and
then four years in Utah and quit in 1979.” AR 49.
During the trips they camp at night, fix meals at night, fix lunches
during the day, move down the river and camp out. AR 50. They divide the
duties up between the six participants. AR 50.
As far as Dr. Preston’s activity, he doesn’t usually get involved in
mapping out a route, most of the time he just paddles a canoe. AR 51. He was
asked whether he was able to participate in things and he responded “Well,
there was one night I wasn’t able to participate because of fatigue, but I hiked
considerably or with everybody else after not taking a break for all that time.”
He still does weed-eating and mowing around his property. He explained
“But I only spend like only two to three hours doing that, most activities . . .
and then I get tired, very tired. AR 53. His wife will help him figure out where
to weed-eat and mow. AR 53. He is able to change the oil and sharpen the
blades on his riding lawn mower. AR 54.
He testified it was very frustrating when he tried to return to do some
work at the clinic because he made mistakes. AR 54.
He tried to do a schedule for a physician’s assistant and it just didn’t
work out. “I just never got it right for him.” AR 54.
He and his wife ride a Harley trike. AR 55. He went on a trip with
friends to the Grand Canyon the August before the hearing. He had to stop for
breaks and the trip went ok. AR 55.
When asked whether he had any difficulty negotiating traffic or following
the path that he needed to take, he responded “About anyone does driving
through your town. We went as far as – it was frustrating at times but, yeah, I
worried about it. My wife actually didn’t ride with me to Denver. She rented a
car and I drove – her car, so.” AR 56.
He testified “I drove from Rapid City. I went with a – I went the way
through Wyoming – I mean, the back roads through Wyoming and in Western
Colorado and then we were going with a couple and then, oh, and she rented a
a car in Moab, Utah – and she was afraid to ride over – you know how
Interstate 70 – it’s crowded all the time – and it was actually more crowded
because that there was road damage when we went – there in August and I
think it was August. I don’t remember. We had to wait a long time the way –
how it was. AR 56-57.
He was asked whether he was traveling with another couple or by himself
by the Administrative Law Judge and responded “No, I went – the other couple,
we had – and I think we dumped them –I think we let them go on to Moab. We
let them go by themselves and we stopped and stick sometimes to the plan.”
AR 57. He tried to do part of the trip on his own at Vail and Eisenhower
Tunnel, but he picked up Krista in Fort Collins and she had to warn me, we
almost – and I almost pulled in front of a truck --. AR 57.
Plaintiff testified that rafting was an important part of his life because he
was a guide for several years. AR 58. The rafting trips that he takes now, he
does only one or maybe two a year, and he’s not guiding, he just goes with
friends. AR 58. He testified the last time he guided was in 1974. AR 58.
Earlier he had testified it was 1979. AR 19. It was difficult for him to get back
to rafting after his stroke. He never turned a boat over until after his stroke
and then he flipped one in 2010, he believes. AR 59.
It was important for him to continue the relationships and friendships
through rafting. He explained that before the event he used to raft a lot and he
used to raft two to five times a year and lately he had done it once or twice and
that it all he could. AR 59. When he returns back home after a rafting trip it
takes him a while to recover from that. At the time of the hearing (dated April
9, 2015), he was still recovering from the trip and he got back Easter Sunday
(four days before the hearing) and even though he’s getting eight hours of sleep,
he’s still fatigued. AR 60.
He continues to ski but can only ski for maybe an hour and a half. He
had been skiing for over 40 years. AR 60. He can’t ski longer because of his
fatigue. AR 61. He feels that he doesn’t have the same coordination and
balance and he skis slower and has had near accidents but it’s beneficial to his
self-esteem. AR 61. When asked if these activities help him emotionally, he
responded “Yeah. Yeah, I think it does. I” AR 61. He has a longtime friend
who has encouraged him to stay active in skiing and join a ski club that’s one
He was asked about his work after the stroke and whether he was paid a
salary since his stroke or was it vacation pay. He responded “I think would be
better if you talked to Krista about it because to be honest, I can’t really
explain it.” AR 63.
He wasn’t working anywhere near even 20 hours a week doing chores,
yard work or any type of work for wages and he responded “No. No, not at all.”
He sees his wife every day pretty consistently throughout the day. He
explained “She goes to town a lot and I go too and we both go to town.” AR 64.
He testified Krista, his wife, is retired and “she’s trying to delegate me
constantly.” AR 64.
He was asked the question of whether he is always aware when he is
having more difficulties or is that something that one of his friends or his wife
would point out to him that maybe he needs to back off or his response “Well
I’m not sure I know what – I’m not sure I understand your question. Maybe if
you could explain that again.” He continued “Yeah, I can usually pick it up
myself, though, especially when I’m tired, that sometimes I can.” AR 64
His wife organizes his activities and schedules at home. AR 64. He
thinks she helps with his medication and reminders. AR 64.
When he has more stress, he explained it makes him very fatigued and
he doesn’t know what to say. AR 65. When asked whether he felt he could do
any type of work on a regular basis forty hours a week, day in and day out, he
responded, “Oh, I don’t think I’m really capable because I can only work
approximately three hours and then I need to take a break and then . . .
usually break, but sometimes naps.” He was asked how many days out of an
average week would he need longer rest breaks of between an hour or an hour
and a half and he responded “About three days out of a month.” AR 65. And
about half the days, he’s going to need longer breaks. AR 65. The ALJ asked
plaintiff if he had noticed any increase in his fatigue or ability to sustain
activity since 2009 and whether he had noticed a decline in the last year or so
where he was not able to keep up pace and he got tired more easily. He
responded “Not really, no, I haven’t changed that.” AR 66.
Krista Preston has been married to plaintiff for almost 33 years at the
time of the hearing. AR 68.
They started the business, Rapid Care, together. AR 68.
She attended the treatment with plaintiff at the Rusk Institute in New
York. AR 68. As a significant other, she was an integral part of their program.
AR 68. The program was very beneficial to both of them as it opened their eyes
to what stroke is all about. He’s never going to be the same and that’s a
transition that she is still working on. AR 69. For Krista and plaintiff there was
a therapeutic community set up at the Brain Injury Program to help plaintiff
regain self-confidence. AR 69.
When they returned from the Brain Injury Program in the Summer of
,9 she worked at trying to get plaintiff back to some level of activity.
AR 69. Krista explained that she played a big role in that they continued on as
they had before his stroke. She tried to manage the clinic payroll and
everything that she could when she was in New York with the use of computers
and the help of her staff at home in Rapid City. AR 69.
Krista testified that they knew he couldn’t work as a clinician anymore
“but when a person has this sort of change in life, you’ve got to keep them
involved as much as you can keep them involved. And so I had him and he
wanted to try to do schedules for the clinicians and the lab and nursing staff.”
AR 70. They tried to find something he could do, both for his own self-esteem
and the morale of the staff. It was good for them to see that Dr. Preston was in
the clinic. AR 70. She explained that the attempts to keep Dr. Preston involved
in his business of Rapid Care with the scheduling, etc. were not successful.
Krista testified “It was a bitterswett experience really because it was just
obvious that he wasn’t going to be able to do it and it was also demoralizing.”
AR 70. He would get people mixed up with days and kept forgetting where the
paper is and who requested what time, etc. AR 70. He was not working
regular working hours. AR 70. Krista explained that he would come in an
hour or two a day. At times he would say “oh I need to go to town to go to
The joint statement of facts states Krista said “2001,” but the NYU
records clearly show Dr. Preston attended their program from 2010 to 2011.
Safeway and pick up some yogurt or something. Or I’ll go pick up some dog
food and I might come in to work on the schedule.” Krista testified it was a
sense of pride for him to say that I’m going to come in to work on the schedule.
She knew, however, that he was having a very hard time with that. AR 71.
He would get people mixed up with days and kept forgetting where the
paper is and who requested what time, etc. AR 70. Krista testified that
plaintiff would come in the office and he would go to sleep in his office. People
would knock on the door and it would be embarrassing for those people
because plaintiff would be asleep in his office. AR 71. It was just very obvious
that it wasn’t working out. AR 71. Krista explained that plaintiff didn’t work
full hours but he continued to receive full wages following the stroke, classified
as sick pay. AR 74.
With respect to his rafting, they had recently gone on a rafting trip to
Utah, leaving on a Monday and returning on Easter Sunday (four days before
the hearing). AR 75. She explained that they have been doing this for 30
years. However, this one was a canoe trip. It’s not white water rafting like they
used to do, just flat water trip with friends. AR 75. The days on the river are
pretty routine and they had the trip leader who was in charge of mapping out
the routes. AR 75-76. She described the difficulty that he had on the trip,
explaining that plaintiff was very quiet when sitting around the camp because
he really didn’t understand what people were talking about. AR 76.
Dr. Preston went to bed earlier than everyone else. She explained he always
sets his own pace that way. AR 76. She explained that after these trips (which
they take once a year for a week) it takes its toll with the deficits he has.
Krista testified that with respect to Dr. Preston’s activities throughout the
day “he’s pretty much tired 24/7, if you ask me.” AR 76. He wakes up tired
and he’s tired when he goes to bed. His best time is in the morning. Two cups
of coffee is important. There’s not a lot that gets done. AR 77. He’ll go out and
feed the horses and come in and take a nap. Sometimes Krista will turn
around and if he’s really tired, “neurofatigued as it’s called” and he doesn’t
speak much and he just has – he’s laying down, sometimes he’ll say I need to
go lay down. AR 77. Krista testified that “In fact, I look and I can see his eyes
drooping, so I mean, that’s just a fact of life, you know, and that’s common
with people with brain injuries.” AR 77.
Krista testified in response to questions from the Administrative Law
Judge about the trip they took on their trike. AR 77. Krista said that trip had
been planned for five years (prior to his stroke) and it was postponed again and
again. AR 77. They had got a trike thinking that it would be safer for him than
a motorcycle. They took breaks and had two hotels scheduled the first day.
AR 78. “We left Rapid City because we didn’t know how far he would be able to
get because of his fatigue and our friends are very aware of that and followed
behind.” AR 78. On the way, some of the friends that traveled behind them
would stop them and tell plaintiff if he would getting too close to the center
line. She felt like we were all lucky to get home alive. AR 78. Kristia testified
“we broke the trip down, we took breaks after maybe two hours and it went
well actually.” AR 78.
Krista encourages plaintiff to keep up with recreational activities,
including rafting and skiing. AR 79. She explained “That is his personality. I
mean, you know, you can’t go back. Your life changes a whole lot and it does a
flip, but there are some things that you need to keep going and we are lucky
enough to live on property where we have two old horses. He grew up on a
ranch, so, and that was – to me, that’s his therapy, that we had those horses
for him to feed every day. Skiing is something that he introduced me to many
years ago and he loves it. His one friend, Joe, you know, a lot of friends fell off,
but Joe stuck with him and loves to ski and would take Sarge skiing and so,
yeah, I mean, there is no reason why he shouldn’t stay in the saddle and get
back on. He can do it, you know, so.” AR 79.
Krista testified these activities and the trips cause him more fatigue with
longer recovery. AR 79.
Krista testified “with a brain injury a lot of things change. Personalities
are affected too, but basically in his situation that love and desire to be
outdoors, you know, he could do that. I mean, ya, and he should do that and I
still think he should do that.” AR 80.
She explained you just have to compensate for the deficits that he has.
“That’s what we learned at Rusk is you compensate for his deficits which is
with neurofatigue, rest, and things gang up on you if you don’t get your rest,
you know, no matter what he’s done.” AR 80.
From Krista’s observations, she does not believe he could go out and do
any type of gainful employment on a full time schedule. AR 80. She testified “I
think he could do a couple hours you know . . . two hours and take a nap or
something. I also know that he has to write things down, you know, to keep
things straight.” AR 80.
Krista testified “I’m not a vocational rehab counselor, but I have been an
employer and when you have an employee and, you know, they need to be alert
. .. you would make accommodations for them, I guess, to take a nap every
couple hours. I mean, who does that?” AR 80-81.
Krista testified that she has to remind him of things and oversee things.
She stated “Maybe I should do it more than not, but one of those things that I
believe is that he needs to get his self-confidence back.” AR 81.
So Krista does let him do a lot of these things on his own but she’ll be
looking out the window. She thinks at times that maybe they should get rid of
the horses. But he’s a farmer/rancher guy and has a lot of experience in it.
But she does peek out at him to make sure that he’s still alive. There are times
when she’s gone outside to look for him when she didn’t see his red jacket, but
she doesn’t want to be the nagging wife. AR 82.
Bill Tysdale testified as a vocational expert at the Social Security Hearing
on April 9, 2015. AR 83-85. Mr. Tysdale was asked to identify jobs an
individual could perform assuming he has no exertional limitations, was
limited to performing unskilled work consisting of one to three steps; and
cannot work at a production quota rate, but can perform goal oriented work.
AR 84. Tysdale responded there would be occupations within those
limitations, including the unskilled, medium kitchen helper job. AR 84.
Tysdale was asked whether an individual could perform that job if they
would be off task 25% of the work day and had the same limitations as in this
first hypothetical. He responded no. AR 84.
Tysdale testified this was a low stress job. AR 85.
If this individual could focus for two to three hours at a time, and needed
additional work breaks of at least 15 mintues within these two to three hours
periods throughout the day, Tysdale responded the individual could not
perform this job. AR 85.
Tysdale testified that anything beyond the normal work breaks would not
provide for full time employment. AR 85.
The ALJ issued a partially favorable decision dated August 31, 2015,
finding plaintiff met the requirements of disability as of March 2014, but was
not disabled prior to that date. AR 12-36.
The ALJ found plaintiff met the insured status through December 31,
2014. AR 18.
The ALJ found that despite being paid significant sums of money as
reflected on his earnings statement following the onset date of 2009, that
plaintiff has not performed substantial, gainful activity. As the plaintiff’s
earnings were a subsidy and not earnings attributable to productive work
activity and therefore do not constitute substantial, gainful activity. AR 18-19.
Since the alleged onset date of disability of November 14, 2009, plaintiff
has had the following severe impairments: status post cerebral vascular
accident with organic mental disorder and mood disorders. AR 19.
The ALJ found that plaintiff’s impairments did not meet or equal any
listings. AR 20.
The ALJ found that plaintiff had mild restrictions on activities of daily
living, mild difficulties maintaining social functioning, moderate difficulties
maintaining concentration, persistence and pace, and no episodes of
decompensation of extended duration. AR 21.
The ALJ found the plaintiff had the following residual functional capacity
prior to March 1, 2014: plaintiff could perform a full range of work at all
exertional levels but with the following non-exertional limitations: unskilled
work consisting of one to three steps. And that plaintiff can work in jobs
requiring goal oriented work but perform no jobs requiring production quotas.
The ALJ concluded that beginning March 1, 2014, the plaintiff has the
residual functional capacity to perform a full range of work at all exertional
levels but with the following non-exertional limitations. The plaintiff can
perform unskilled work consisting of one to three steps. The plaintiff can work
in jobs requiring goal-oriented work, but can perform no jobs requiring
production quotas. The plaintiff can perform work in a low stress work
environment, requires one 15 minute rest break in addition to customary
breaks, will be off-task twenty-five percent of the work day due to his
symptoms, can focus on job related tasks for two or three hours at a time, and
can work a total of four hours per workday. AR 27.
The ALJ found that plaintiff could not perform his past relevant work at
any time since November 14, 2009. AR 29.
The ALJ found that beginning March 1, 2014, and and continuing,
plaintiff could not perform any jobs existing in significant numbers in the
national economy. AR 30.
The ALJ found that the Vocational Expert testified that prior to March 1,
2014, plaintiff could perform a representative sample of unskilled jobs such as
kitchen helper. AR 30.
The ALJ found plaintiff was entitled to a period of disability and disability
insurance benefits beginning on March 1, 2014, and continuing. AR 31.
Issues Before This Court
Dr. Preston raises two issues before this court: (1) did the ALJ err in
evaluating Dr. Lord’s opinion evidence and (2) did the ALJ err in evaluating
Dr. Preston’s credibility as to the effects of his impairments.
Standard of Review.
When reviewing a denial of benefits, the court will uphold the
Commissioner’s final decision if it is supported by substantial evidence on the
record as a whole. 42 U.S.C. § 405(g); Minor v. Astrue, 574 F.3d 625, 627
(8th Cir. 2009). Substantial evidence is defined as more than a mere scintilla,
less than a preponderance, and that which a reasonable mind might accept as
adequate to support the Commissioner’s conclusion. Richardson v. Perales,
402 U.S. 389, 401 (1971); Klug v. Weinberger, 514 F.2d 423, 425
(8th Cir. 1975). “This review is more than a search of the record for evidence
supporting the [Commissioner’s] findings, and requires a scrutinizing analysis,
not merely a rubber stamp of the [Commissioner’s] action.” Scott ex rel. Scott
v. Astrue, 529 F.3d 818, 821 (8th Cir. 2008) (internal punctuation altered,
In assessing the substantiality of the evidence, the evidence that detracts
from the Commissioner’s decision must be considered, along with the evidence
supporting it. Minor, 574 F.3d at 627. The Commissioner’s decision may not
be reversed merely because substantial evidence would have supported an
opposite decision. Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005); Woolf
v. Shalala 3 F.3d 1210, 1213 (8th Cir. 1993). If it is possible to draw two
inconsistent positions from the evidence and one of those positions represents
the Commissioner’s findings, the Commissioner must be affirmed. Oberst v.
Shalala, 2 F.3d 249, 250 (8th Cir. 1993). “In short, a reviewing court should
neither consider a claim de novo, nor abdicate its function to carefully analyze
the entire record.” Mittlestedt v. Apfel, 204 F.3d 847, 851 (8th Cir. 2000)
The court must also review the decision by the ALJ to determine if an
error of law has been committed. Smith v. Sullivan, 982 F.2d 308, 311
(8th Cir. 1992); 42 U.S.C. § 405(g). Specifically, a court must evaluate whether
the ALJ applied an erroneous legal standard in the disability analysis.
Erroneous interpretations of law will be reversed. Walker v. Apfel, 141 F.3d
852, 853 (8th Cir. 1998)(citations omitted). The Commissioner’s conclusions
of law are only persuasive, not binding, on the reviewing court. Smith, 982
F.2d at 311.
The Disability Determination and the Five-Step Procedure.
Social Security law defines disability as the inability to do any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(I), 423(d)(1); 20 C.F.R. § 404.1505. The impairment
must be severe, making the claimant unable to do his previous work, or any
other substantial gainful activity which exists in the national economy.
42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511.
The ALJ applies a five-step procedure to decide whether an applicant is
disabled. This sequential analysis is mandatory for all SSI and SSD/DIB
applications. Smith v. Shalala, 987 F.2d 1371, 1373 (8th Cir. 1993); 20 C.F.R.
§ 404.1520. When a determination that an applicant is or is not disabled can
be made at any step, evaluation under a subsequent step is unnecessary.
Bartlett v. Heckler, 777 F.2d 1318, 1319 (8th Cir. 1985). The five steps are as
Step One: Determine whether the applicant is presently engaged
in substantial gainful activity. 20 C.F.R. ' 404.1520(b). If the
applicant is engaged in substantial gainful activity, he is not
disabled and the inquiry ends at this step.
Step Two: Determine whether the applicant has an impairment or
combination of impairments that are severe, i.e. whether any of the
applicant=s impairments or combination of impairments
significantly limit his physical or mental ability to do basic work
activities. 20 C.F.R. § 404.1520(c). If there is no such impairment
or combination of impairments the applicant is not disabled and
the inquiry ends at this step. NOTE: the regulations prescribe a
special procedure for analyzing mental impairments to determine
whether they are severe. Browning v. Sullivan, 958 F.2d 817, 821
(8th Cir. 1992); 20 C.F.R. § 1520a. This special procedure
includes completion of a Psychiatric Review Technique Form
Step Three: Determine whether any of the severe impairments
identified in Step Two meets or equals a AListing@ in Appendix 1,
Subpart P, Part 404. 20 C.F.R. § 404.1520(d). If an impairment
meets or equals a Listing, the applicant will be considered disabled
without further inquiry. Bartlett 777 F.2d at 1320, n.2. This is
because the regulations recognize the “Listed” impairments are so
severe that they prevent a person from pursuing any gainful work.
Heckler v. Campbell, 461 U.S. 458, 460, (1983). If the applicant’s
impairment(s) are severe but do not meet or equal a Listed
impairment the ALJ must proceed to step four. NOTE: The “special
procedure” for mental impairments also applies to determine
whether a severe mental impairment meets or equals a Listing.
20 C.F.R. § 1520a(c)(2).
Step Four: Determine whether the applicant is capable of
performing past relevant work (PRW). To make this determination,
the ALJ considers the limiting effects of all the applicant’s
impairments, (even those that are not severe) to determine the
applicant’s residual functional capacity (RFC). If the applicant=s
RFC allows him to meet the physical and mental demands of his
past work, he is not disabled. 20 C.F.R. §§ 404.1520(e);
404.1545(e). If the applicant’s RFC does not allow him to meet the
physical and mental demands of his past work, the ALJ must
proceed to Step Five.
Step Five: Determine whether any substantial gainful activity
exists in the national economy which the applicant can perform.
To make this determination, the ALJ considers the applicant’s
RFC, along with his age, education, and past work experience. 20
C.F.R. § 1520(f).
Burden of Proof.
The plaintiff bears the burden of proof at steps one through four of the
five-step inquiry. Barrett v. Shalala, 38 F.3d 1019, 1024 (8th Cir. 1994);
Mittlestedt, 204 F.3d at 852; 20 C.F.R. § 404.1512(a). The burden of proof
shifts to the Commissioner at step five. “This shifting of the burden of proof to
the Commissioner is neither statutory nor regulatory, but instead, originates
from judicial practices.” Brown v. Apfel, 192 F.3d 492, 498 (5th Cir. 1999).
The burden shifting at step five has also been referred to as “not statutory,
but . . . a long standing judicial gloss on the Social Security Act.” Walker v.
Bowen, 834 F.2d 635, 640 (7th Cir. 1987). Moreover, “[t]he burden of
persuasion to prove disability and to demonstrate RFC remains on the
claimant, even when the burden of production shifts to the Commissioner at
step five.” Stormo v. Barnhart 377 F.3d 801, 806 (8th Cir. 2004).
Whether the ALJ Erred in Evaluating Dr. Lord’s Opinion
Law Applicable to Treating Medical Source Opinions
The court notes first what is not at issue: whether Dr. Preston engaged
in substantial gainful activity at step two. Although the Commissioner spends
some effort discussing Dr. Preston’s income post-November, 2009, neither
party has appealed the Commissioner’s conclusion that Dr. Preston did not
engage in SGA during the period of alleged disability. Accordingly, that issue is
not before the court.
Dr. Preston argues the ALJ erred in discounting the opinion of his
treating psychiatrist, Dr. Charles Lord. Medical opinions from acceptable
medical sources are considered evidence which the ALJ will consider, along
with all relevant record evidence, in determining whether a claimant has an
impairment, the nature and severity of the impairment, and the claimant’s
RFC. See 20 C.F.R. § 404.1527(a)(2). All medical opinions are evaluated
according to the same criteria, namely:
--whether the opinion is consistent with other evidence in
--whether the opinion is internally consistent;
--whether the person giving the medical opinion examined
--whether the person giving the medical opinion treated the
--the length of the treating relationship;
--the frequency of examinations performed;
--whether the opinion is supported by relevant evidence,
especially medical signs and laboratory findings;
--the degree to which a nonexamining or nontreating
physician provides supporting explanations for their
opinions and the degree to which these opinions consider
all the pertinent evidence about the claim;
--whether the opinion is rendered by a specialist about
medical issues related to his or her area of specialty; and
--whether any other factors exist to support or contradict the
See 20 C.F.R. § 404.1527(a)-(f); Wagner v. Astrue, 499 F.3d 842, 848 (8th Cir.
The Commissioner will give controlling weight to the opinion of a treating
source as to the nature and severity of a claimant’s impairment if (1) the
opinion is well-supported by medically acceptable clinical and laboratory
diagnostic techniques, and (2) the opinion is not inconsistent with the other
substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2); Nowling v.
Colvin, 813 F.3d 1110, 1122 (8th Cir. 2016). “A treating physician’s opinion,
however, ‘does not automatically control or obviate the need to evaluate the
record as a whole.’ ” Nowling, 813 F.3d at 1122-23 (quoting Hogan v. Apfel,
239 F.3d 958, 961 (8th Cir. 2001)). If the opinion of the treating physician is
inconsistent, or if other medical evaluations are “supported by better or more
thorough medical evidence” the ALJ may be entitled to discount or even
disregard a treating physician’s opinion. Nowling, 813 F.3d at 1123; House v.
Astrue, 500 F.3d 741, 744 (8th Cir. 2007); Wagner, 499 F.3d at 853-854;
Guilliams v. Barnhart, 393 F.3d 798, 803 (8th Cir. 2005); Bentley v. Shalala,
52 F.3d 784, 786 (8th Cir. 1995). “The opinion of an acceptable medical source
who has examined a claimant is entitled to more weight than the opinion of a
source who has not examined a claimant.” Lacroix v. Barnhart, 465 F.3d 881,
888 (8th Cir. 2006) (citing 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1)); Shontos
v. Barnhart, 328 F.3d 418, 425 (8th Cir. 2003); Kelley v. Callahan, 133 F.3d
583, 589 (8th Cir. 1998)).
When opinions of consulting physicians conflict with opinions of treating
physicians, the ALJ must resolve the conflict. Wagner, 499 F.3d at 849.
Generally, the opinions of non-examining, consulting physicians, standing
alone, do not constitute “substantial evidence” upon the record as a whole,
especially when they are contradicted by the treating physician’s medical
opinion. Wagner, 499 F.3d at 849; Harvey v. Barnhart, 368 F.3d 1013, 1016
(8th Cir. 2004) (citing Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999)).
However, where opinions of non-examining, consulting physicians along with
other evidence in the record form the basis for the ALJ’s RFC determination,
such a conclusion may be supported by substantial evidence. Harvey, 368
F.3d at 1016. Also, where a nontreating physician’s opinion is supported by
better or more thorough medical evidence, the ALJ may credit that evaluation
over a treating physician’s evaluation. Flynn v. Astrue, 513 F.3d 788, 793 (8th
Cir. 2008)(citing Casey v. Astrue, 503 F.3d 687, 691-692 (8th Cir. 2007)).
Certain ultimate issues are reserved for the Commisioner’s
determination. 20 C.F.R. § 404.1527(d). Any medical opinion on one of these
ultimate issues is entitled to no deference because it “invades the province of
the Commissioner to make the ultimate disability determination.” House, 500
F.3d at 745 (citing Krogmeier v. Barnhart, 294 F.3d 1019, 1023 (8th Cir.
2002)). See 20 C.F.R. § 416.927(e)(3). The ultimate issues reserved to the
Agency are as follows:
whether the claimant is disabled;
whether the claimant is able to be gainfully employed;
whether the claimant meets or exceeds any impairment in the
Listing of Impairments (appendix 1 to subpart P of part 404 of 20
what the claimant’s RFC is; and
what the application of vocational factors should be.
See 20 C.F.R. § 404.1527(d)(1) and (2); see also Wagner, 499 F.3d at 849 (the
ALJ “need not adopt the opinion of a physician on the ultimate issue of a
claimant’s ability to engage in substantial gainful employment.”) (quoting
Qualls v. Apfel, 158 F.3d 425, 428 (8th Cir. 1998)). The RFC determination is
specifically noted to be one of those determinations that is an ultimate issue for
the Agency to determine. 20 C.F.R. § 404.1527(d)(2); Cox, 495 F.3d at 619620. In evaluating a treating physician’s opinion, the ALJ must “always give
good reasons” supporting her decision regarding the weight afforded that
opinion. Nowling, 813 F.3d at 1123; Reed, 399 F.3d at 921; 20 C.F.R.
In the Nowling case, Nowling’s treating physician described her in a
medical source statement as seriously limited or unable to meet competitive
standards such as the ability to maintain regular attendance at work and be
punctual, to complete a normal workday and workweek without interruptions
from psychologically based symptoms, to respond appropriately to changes in
work routine, and to deal with stress of semiskilled and skilled work. Nowling,
813 F.3d at 1117. The ALJ discounted this treating physician’s opinion of
Nowling’s functional abilities, claiming it was inconsistent with other
(nontreating) experts’ opinions and with the treating physician’s own records.
Id. at 1123. In support of his opinion, the ALJ highlighted one entry in the
treating physician’s notes showing Nowling had a GAF of 56 and had
demonstrated “improvement.”10 Id.
The court held the GAF score was “of little value” and, in any event,
Nowling had consistently had GAF scores of 45 to 50 over the course of two
years and 38 therapy sessions. Id. at 1115-16. The one-time GAF score of 56
was an anomaly. Id. Furthermore, in highlighting the fact that Nowling
exhibited improvement on one occasion, the ALJ failed to recognize that
Nowling’s mental impairments waxed and waned over a substantial treatment
period, that her symptoms were unpredictable and sporadic, and that her
structured living environment had an effect on the manifestation of her
symptoms. Id. Here, the court held, the ALJ failed to give good reasons for
discounting the treating physician’s opinion because the ALJ failed to
acknowledge the nature of the mental disorder at issue and the longitudinal
treatment record. Id. The court remanded to the agency. Id.
In the House case, the ALJ’s decision disregarding the treating
physician’s opinion was affirmed, in large part because there were “profound”
inconsistencies between the treating physician’s opinion on the one hand, and
the medical evidence and the claimant’s own testimony on the other. House,
500 F.3d at 744-745. The ALJ had determined that the claimant suffered from
a severe impairment that left him unable to perform his past relevant work, but
See Footnote 7, supra, for a description of GAF.
that he retained the RFC to perform certain unskilled sedentary jobs. Id. at
742. The key issue as to the claimant’s ability to perform unskilled sedentary
work turned on whether he could sit for prolonged periods of time. Id. at 743745.
The medical records established restrictions on the claimant’s ability to
stand and walk, but not on his ability to sit. Id. The claimant’s own
statements in questionnaires and testimony at the hearing also indicated that
his impairment affected his ability to stand and walk, but not to sit. Id. The
treating physician’s opinion that there were significant limitations on the
claimant’s ability to sit came only in response to a letter from the claimant’s
lawyer and only after the case had been remanded from the Appeals Council
back to the ALJ for additional findings. Id. at 743. Under these facts, the ALJ
was justified in finding that the treating physician’s statement was inconsistent
with the medical evidence on the whole. Id. at 743-745.
In Dolph v. Barnhart, 308 F.3d 876, 876 (8th Cir. 2002), the claimant
alleged disability from a combination of kidney disease which caused
hypertension, degenerative disease of the cervical spine, and carpal tunnel
syndrome. The ALJ denied benefits, finding that the claimant retained the
RFC to perform past relevant work. Id. at 878. In reaching this conclusion,
the ALJ disregarded a portion of the RFC assessment completed by the
claimant’s kidney doctor. Id. at 878-879. This was assigned as error by the
claimant on appeal. Id.
The Eighth Circuit affirmed, noting that the ALJ fully credited the
treating physician’s opinion about the claimant’s kidney disease because this
was within the treating physician’s area of specialty. Id. at 879. However, the
ALJ gave less weight to the kidney doctor’s RFC assessment of the claimant’s
cervical spine degeneration and carpal tunnel. Id. The kidney doctor had not
treated the claimant for these neck and arm conditions and had not made any
clinical findings concerning these conditions. Id. The Eighth Circuit found
that the ALJ’s analysis of the kidney doctor’s RFC assessment was consistent
with the regulations governing how medical opinions are to be weighed and
evaluated. Id. See also Reed, 399 F.3d at 922 (noting that less weight may be
accorded to a treating physician’s opinion where that opinion concerns a
condition outside the physician’s specialty, for which he did not treat the
claimant and as to which he had not made any clinical findings).
In Wagner, the Eighth Circuit affirmed the ALJ’s decision to discount a
particular medical opinion of the claimant’s treating physician where that
particular opinion was inconsistent with two other opinions he gave about the
claimant on the same subject on two other occasions, one predating the
opinion that was discounted, and one postdating that opinion. Wagner, 499
F.3d at 849-850.
In evaluating a medical source opinion, the ALJ was required to consider
whether the medical source had treated the claimant, how long the treatment
relationship had lasted, and whether the medical source had examined the
claimant. 20 C.F.R. § 404.1527.
Dr. Lord’s Opinions & the ALJ’s Treatment of Them
Applying the above law in Dr. Preston’s case, it is helpful to review the
evidence. The ALJ gave “great weight” to some of Dr. Lord’s opinions and “little
weight” to others. Only the ALJ’s decision according “little weight” is at issue,
so a description of the opinion evidence is important for clarity.
Opinion to Which “Great Weight” Was Given
Dr. Lord gave an opinion dated December 7, 2014, which the ALJ gave
“great weight” to. AR28. That opinion was in response to a letter from
Dr. Preston’s lawyer explaining Dr. Preston’s own account of his deficits.
AR888. In the letter, Dr. Preston’s testimony at the hearing is prefigured: due
to neurofatigue, he needs to rest for 10 to 15 minutes every couple of hours
and these rests sometimes turn into 2 to 3 hour naps. Id. Based upon
Dr. Preston’s own description of the effect of his impairments, Dr. Lord was
asked to answer two questions. AR889.
First, are Dr. Preston’s description of his symptoms and limits consistent
with his medical condition? Id. Dr. Lord answered “yes,” and expounded upon
his answer. Id. Dr. Lord noted left frontal CVA impairs the
emotions/attention, executive function, right motor activity and
impulsivity/compulsivity related circuits in the human brain. Rest is required
to partially compensate for these chronic dysfunctions due to circuit damage.
Second, Dr. Lord was asked whether Dr. Preston’s description of the
rests he needed were necessary to help him maintain his function and, if so,
whether this need for rests would continue indefinitely? Id. Dr. Lord also
answered this question “yes,” and explained that generally the usual time
frame to get back to what functions you can post-CVA traumatic brain injury is
two years. Id.
The above opinions were not discounted by the ALJ. AR28. Dr. Preston
does not take issue with that evaluation of Dr. Lord’s opinion by the ALJ.
Opinions to Which the ALJ Gave “Little Weight”
The ALJ did discount Dr. Lord’s GAF scores, which appear throughout
his notes, and Dr. Lord’s functional opinions from December, 2010, and
August, 2012, that Dr. Preston was “unable to work due to psychotic and
neurological sequelae.” AR 26-27. Therefore, it is towards these opinions that
Dr. Preston’s argument is directed.
Functional Capacity Forms from 2010 & 2012
At AR781-83 are found three “Attending Physician’s Statement” forms,
each signed by Dr. Lord. AR781-83. Each bears a “policy number” at the top
of the page. Id. Each also bears a notation at the bottom of the page “Page 2 of
4.” Id. Pages 1, 3 & 4 of the form are not in the record, so it is difficult to
definitively identify what these documents are. They may be a form submitted
to a disability insurance company to determine whether Dr. Preston should
continue to receive disability insurance benefits. This surmise is bolstered by
the fact that the forms contain only one specific question as to function—can
the patient endorse checks and direct the proceeds thereof. See AR781-83. An
entity that was issuing checks to Dr. Preston would want to know this
information so as to know whether a guardianship or benefits-payee should be
The three forms are dated December 13, 2010 (AR783), January 18,
2012 (AR781), and August 25, 2012 (AR782). In her opinion, the ALJ mentions
only the opinions expressed in the first and last form, not the intervening
middle form. As can be seen below, the three forms represent Dr. Lord’s
evolving opinions as to Dr. Preston’s condition over the 20-month period
encompassed by the forms.
The December 13, 2010, form states Dr. Preston’s subjective symptoms
are: memory problems, mood swings, and insomnia. AR783. Dr. Lord lists his
objective findings as: executive dysfunction, anxiety/dysphoria, and insomnia.
Id. Dr. Lord recorded his opinion that Dr. Preston was competent to endorse
checks and direct the use of the proceeds thereof. Id. Dr. Lord stated there
were limitations and restrictions on the patient’s work activities solely due to
his medical condition. Id. When asked to explain that answer, Dr. Lord wrote
“cannot return to work as physician.” Id. He stated this condition began
November, 2009, and was ongoing. Id. When asked whether the condition
would continue into the future unchanged, or with fundamental change,
Dr. Lord responded “unknown.” Id. Dr. Lord stated the patient was a suitable
candidate for medical rehabilitation and that it was unknown whether a job
modification would allow the patient to return to work even with his
impairment. Id. When asked if the patient was suitable for vocational
rehabilitation, Dr. Lord answered affirmatively. Id. But when asked what
specific limitations and restrictions would apply to vocational rehabilitation, he
wrote it was too early in the recovery process to evaluate. Id.
There is an intervening evaluation form dated January 18, 2012, that
was not discussed in the ALJ’s written opinion. AR781. On this date, Dr. Lord
diagnosed mood disorder arising from CVA-AV malfunction. Id. He listed
Dr. Preston’s subjective symptoms to be: anxiety, mood swings, depression,
and executive dysfunction. Id. He listed identical objective findings, except
that “dysphoria” was listed in place of depression. Id. Dr. Lord noted that
Dr. Preston’s psychiatric antidepressants had been discontinued because of
severe agitation. Id. Dr. Lord stated the patient was competent to endorse
checks and direct the use of the proceeds thereof. Id. Dr. Lord again opined
the patient had limitations and restrictions to his work activities solely due to
his medical condition that rendered him “unable to work due to
psychotic/neurological sequelae.” Id. Dr. Lord stated the patient’s restrictions
began November 14, 2009, and the date they would end was undetermined. Id.
Dr. Lord opined it was undetermined whether there would be a fundamental or
marked change in the patient’s condition in the future. Id. He again opined
Dr. Preston was a suitable candidate for medical rehabilitation. Id.
point, Dr. Lord stated it was “unknown” whether Dr. Preston could perform his
job with modifications given his impairment. Id. Dr. Lord indicated that
answering this question would require follow-up with Dr. Cotes, neurology. Id.
Also, as in the December, 2010, statement, Dr. Lord stated it was
undetermined whether the patient would be a suitable candidate for vocational
rehabilitation. Id. When asked what specific limitations and restrictions
Dr. Lord would place on vocational rehabilitation, he stated he would “observe
psychiatric interface (e.g. level of anxiety/depression). Id.
A third identical form was filled out by Dr. Lord on August 25, 2012.
AR782. On this date, Dr. Lord diagnosed mood disorder arising from CVA-AV
malfunction. Id. He listed Dr. Preston’s subjective symptoms to be: anxiety,
mood swings, depression, and executive dysfunction. Id. He listed identical
objective findings. Id. Dr. Lord again opined the patient had limitations and
restrictions to his work activities solely due to his medical condition that
rendered him “unable to work due to psychotic/neurological sequelae.” Id.
Dr. Lord stated the patient’s restrictions began November 14, 2009, and were
ongoing. Id. Dr. Lord opined there would be no fundamental or marked
change in the patient’s condition in the future. Id. He again opined
Dr. Preston was a suitable candidate for medical rehabilitation. Id. This time,
Dr. Lord opined the patient was definitely not able to work with a job
modification given his impairment. Id. He stated it was unknown whether
Dr. Preston was suitable for vocational rehabilitation. Id. When asked what
specific limitations or restrictions Dr. Lord would place on vocational
rehabilitation, he stated he would “observe psychotic/neurological interface
(e.g. anxiety/depression, etc.)” Id.
The ALJ gave “little weight” to these opinions of Dr. Lord, writing them off
on the basis that they were referring only to his ability to work as a physician
and were not relevant to the larger question whether Dr. Preston was capable
of doing any work on a sustained basis. AR27. The ALJ also discounted the
opinions because Dr. Preston’s activities of daily living for the same
corresponding time indicated he retained a high level of function. Id. The ALJ
then listed a litany of physical activities Dr. Preston engaged in, from mowing
to rafting and skiing. Id.
The first reason given by the ALJ for discounting the opinions—that they
related solely to Dr. Preston’s ability to peform the job of a physician—is not a
fair characterization of the documents. It is probably true that the opinions
were rendered at the request of Dr. Preston’s disability insurer, but the
questions on the forms and the information documented by Dr. Lord thereon
went beyond the question of returning to work as a physician. For example,
the form documented Dr. Preston’s subjective complaints and Dr. Lord’s
objective observations. It recorded what the effects of the impairment were,
when those effects started, and, most importantly, their duration.
In December, 2010, Dr. Preston was only one year post-CVA and
Dr. Lord stated it was too early to tell what functions Dr. Preston may regain.
AR783. This is consistent with Dr. Lord’s December, 2014, opinion to which
the ALJ gave “great weight” in which Dr. Lord explained that the improvement
in function following a brain injury such as Dr. Preston’s would continue for
about two years post-incident, after which the functions regained become static
and no further improvement can be expected. AR888-90. In August, 2012,
Dr. Preston was then outside that two-year window post-CVA. Accordingly,
Dr. Lord’s projection of the functional abilities Dr. Preston was likely to regain
had solidified. AR782. Dr. Lord could not say whether Dr. Preston was a good
candidate for vocational rehabilitation—i.e. training for a different job than the
one he previously held—but he stated whether that vocational rehabilitation
would work depended on monitoring the “psychotic/neurological interface (e.g.
anxiety/depression, etc.)” Id.
Dr. Lord’s own records from pre-March, 2014, are consistent with his
December, 2010, and August, 2012, opinions. He documented numerous
times that Dr. Preston was experiencing signifigant fatigue and sleeping issues.
See, e.g. AR777-78 (fatigue, forgetful, sleep issues 6-4-10); AR774 (fragile and
fatigued 6-14-10); AR774 (sleep problems on rafting trip 7-5-10); AR772
(fatigue 7-26-10); AR771 (fatigue 8-9-10); AR770 (fatigue and low energy,
sleeping in waiting room 8-30-10); AR768 (sleeping 4-5 hours in daytime 1221-10); AR768 (problems with neurocognitive function 5-9-11); AR765
(neurocognitive difficulties 8-31-11); AR762 (plaintiff skiing but fatiguing easier
3-8-12); AR755-56 (neurofatigue requires naps 9-16-13). Those records are
substantially the same after March 1, 2014. See AR870 (neurofatiguing and
needing naps 3-3-14); and AR873 (works around property but gets fatigued
easily and must nap 9-10-14).
Nor are Dr. Lord’s records inconsistent with other record evidence before
the ALJ. Dr. Lord received status reports from the NYU brain program, which
was replete with documentation of Dr. Preston’s neurofatigue and decreased
stamina. See, e.g. AR512,, 598, 599, 600, 602, 604, 624, 626, 627
(documenting numerous instances of neurofatigue, including that plaintiff was
“prone” to neurofatigue, needed frequent breaks due to neurofatigue—late 2010
through spring 2011). As the Commissioner points out, there were numerous
days during the NYU program when Dr. Preston did well in terms of his
neurofatigue and did not need excessive breaks or naps. But there was
substantial evidence to the contrary on just as many days, which only
demonstrates that Dr. Preston’s neurofatigue, and the effect it had on him,
waxed and waned, like most mental impairments. Nowling, 813 F.3d at 111415, 1123. Furthermore, Dr. Preston’s neurofatigue and just plain fatigue were
conditions that dated back to the period immediately after Dr. Preston
experienced his CVA. See AR432 (increased need for sleep, fatigue, sleep
disturbances, forgetfulness, difficulties in concentration and attention 2-16-10)
(Dr. Scott Cherry).
The ALJ discussed evidence from Dr. Preston’s occupational and speech
therapists (AR23-24 (citing AR420-25)), but none of that evidence contradicts
Dr. Lord’s opinions as to his patient’s ability to function given his neurofatigue
and need for breaks/naps. The ALJ pointed to a November 5, 2010, record
from NYU finding Dr. Preston’s concentration and attention were within normal
limits. AR25 (citing AR493-94). This, the ALJ asserted, is “highly probative
evidence that claimant has the residual mental capacity to perform unskilled
work of 1-3 steps.” AR25. However, the ALJ does not note the numerous
documentations in the NYU records of Dr. Preston’s neurofatigue cited above.
Nor does the ALJ take into account the NYU evaluation of Dr. Preston a few
months later recommending he enroll for another course of treatment to
address his continuing deficits. AR496.
The ALJ also discussed Dr. Christina Cote’s April 27, 2010, record in
which she discussed disability with Dr. Preston. AR25 (citing AR427). The
somewhat misleading impression the ALJ’s recitation gives is that Dr. Cote felt
Dr. Preston could return to work as a physician with a few small tweaks, such
as having a physician’s assistant in the room with him when treating patients.
AR25. A consideration of the full record shows Dr. Cote advised Dr. Preston he
had “pronounced deficits in auditory recognition, executive function, access to
semantic memory, verbal fluency, hypothesis testing and generation” based on
Dr. Cherry’s February evaluation. AR427. Dr. Cote further told her patient he
had “impairments in psychomotor speed and processing speed.” Id. Dr. Cote
noted Dr. Preston had “some hesitancy and almost a stuttering quality to
speech but it is not actually searching for words but it almost seems like his
brain is reviewing how I will interpret what he is about to say and so he is
rethinking his phrasing.” Id. Dr. Cote noted plaintiff had “difficulty reading.”
Id. Dr. Cote recorded that plaintiff had depression and anxiety giving rise to
forgetfulness, confusion, and difficulties in concentration and attention. Id.
Dr. Cote discussed the possibility of plaintiff returning to work, and suggested
he do some “soul searching” and take deeply into account his condition. Id.
They discussed disability, but Dr. Cote stated any determination in that regard
would have to await Dr. Cherry’s next evaluation. Id. Thus, when one looks at
the evidence relied upon by the ALJ in context and in full, it does not support
the propositions asserted in the ALJ’s written opinion.
The ALJ also seized on a statement in Dr. Preston’s August 5, 2011,
discharge summary from the NYU program to the effect he was “enthusiastic”
about helping his wife run their medical business administratively. AR25
(citing AR443). What the ALJ fails to acknowlege was that Dr. Preston’s
attempt to perform administrative tasks at the clinic ended in dismal failure.
He worked only 1-2 hours a day, couldn’t keep information straight, and had to
take frequent naps. AR70-71. The fact that Dr. Preston wanted to work in a
productive capacity is not evidence that he was able to do so.
Before this court, the Commissioner points to several records from
Dr. James Bowman in which Dr. Bowman recorded plaintiff reported no
memory problems. Dr. Preston argues that the visits with Dr. Bowman were
for treatment of Dr. Preston’s prostate cancer, lasted only 30 minutes, and that
Dr. Bowman is an internist who does not specialize in mental conditions.
Some of this is true. Dr. Bowman’s records demonstrate that most visits were
for 25 minutes only. However, Dr. Preston was being seen by Dr. Bowman
post-CVA during 2010 and the first half of 2011, prior to his August 31, 2011
(AR655) cancer diagnosis, so Dr. Bowman was not treating Dr. Preston
exclusively for cancer. Dr. Preston’s point that Dr. Bowman is a doctor of
internal medicine is, however, well taken. He does not specialize in diseases or
impairments of the brain. Opinions of specialists like neuropsychologist
Dr. Scott Cherry and psychiatrist Dr. Charles Lord are accorded greater weight
than Dr. Bowman’s opinion as to plaintiff’s mental status because Dr. Lord and
Dr. Cherry specialize in the treatment and evaluation of brain disorders
whereas Dr. Bowman does not. See 20 C.F.R. § 404.1527(a)-(f); Wagner, 499
F.3d at 848; Dolph, 308 F.3d at 879. These brain specialists found significant
impairment. AR43-33, 888-90. In any case, there is also evidence in the
record that Dr. Preston’s neurofatigue is a condition that waxes and wanes and
it is this condition that affects his memory, concentration and attention. The
ALJ did not address the basic nature of Dr. Preston’s condition.
Finally, Dr. Lord’s opinions from December, 2010, and August, 2012, are
consistent with Dr. Preston’s daily activities from mid-2010 to the time of the
ALJ hearing. Dr. Preston reported in his earliest function report that he
needed 2 naps daily due to neurofatigue and could only concentrate for a
couple of hours before needing a break. AR252 (10-3-13). Dr. Preston
reported this condition consistently from the time of the first function report
through the date of the ALJ hearing. Id.; AR263, 272, 53, 55, 60-61, 65.
Dr. Preston related that this condition had been with him since the CVA event
in November, 2009. AR263, 267 (12-13-13). Dr. Preston’s wife also
corroborated his neurofatigue and need for daily naps. AR70-71, 77, 78, 8081, 301.
The ALJ relied on Dr. Preston’s activities of daily living, including his
recreational activities, to discredit Dr. Lord’s 2010 and 2012 opinions. But the
ALJ never explained why these daily activities were inconsistent with Dr. Lord’s
opinions. Although Dr. Preston is a man of relatively good physical health and
strength, that does not undermine his stated neurofatigue and need for breaks,
including naps, every couple of hours. For example, although Dr. Preston
skied, he could only ski for about 60 to 90 minutes before fatiguing. AR762.
He took a trip on a motor trike, but his wife planned the route to include
breaks every couple of hours, including multiple hotel reservations in case he
were unable to go more than two hours. AR78. Dr. Preston works around his
property feeding dogs and two horses and mowing, but fatigues easily and has
to take breaks every couple of hours. AR873. He took a trip to the Grand
Canyon with his family, but it was too fatiguing for him and he would not take
a trip like that again. AR873.
The crux of the ALJ’s finding that Dr. Preston was disabled from March
1, 2014, forward, was his need for breaks or a nap every couple of hours. No
matter the job, no employer would employ a person who needed those frequent
of breaks. What is missing from the ALJ’s analysis is why this condition was
not disabling prior to March 1, 2014, when the records consistently document
this condition existed prior to March, 2014. What is also missing from the
ALJ’s analysis are the “good reasons” for discounting Dr. Lord’s 2010 and 2012
opinions, particularly under the facts of this case: the evidence is consistent
both before and after the date (March 1, 2014) that the ALJ found Dr. Preston
to be disabled. The court concludes this matter must be remanded for the ALJ
to consider Dr. Lord’s opinions from 2010 and 2012 in light of all the evidence
in the record and to analyze those opinions under the rubric set forth by the
Commissioner for analyzing opinions of treating physicians. Nowling, 813 F.3d
1114-15, 1123 (remanding where the ALJ discounted treating physician’s
opinion while ignoring the nature of the impairment and the longitudinal
record about the impairment).
The other opinion evidence from Dr. Lord that the ALJ discounted was
the GAF scores Dr. Lord recorded in his records. AR26. The ALJ explained she
was giving little weight to these scores for a number of reasons. Id. A GAF
score is a single snapshot in time and is subjective. Id. Also, the ALJ stated a
GAF does not indicate the cause of impaired functioning or what functions are
impaired. Id. For example, the GAF scores Dr. Lord assigned to Dr. Preston
may have been due to economic or environmental factors unrelated to his
mental functional capacity. Id. Finally, the ALJ noted there was other, more
informative information in the record to which the ALJ gave more weight. Id.
As to this issue, the court affirms the ALJ’s decision to give “little weight”
to the GAF scores Dr. Lord assigned to Dr. Preston. GAF stands for Global
Assessment of Functioning. GAF uses a scale from 0 to 100 to indicate social,
occupational and psychological functioning with a 100 being the most healthy
mentally. A GAF of 41 to 50 indicates serious symptoms/impairment in social,
occupational, or school functioning while a GAF of 51 to 60 indicates moderate
symptoms or difficulty. Nowling, 813 F.3d at 1115 n.3. Both the Eighth
Circuit and the Commissioner have recognized that GAF scores have limited
importance. Id. The “Commissioner has declined to endorse the [GAF] score
for use in the Social Security and [Supplemental Security Income] disability
programs and has indicated that [GAF] scores have no direct correlation to the
severity requirements of the mental disorders listings.” Id. (quoting Jones v.
Astrue, 619 F.3d 963, 973-74 (8th Cir. 2010)).
The Diagnostic and Statistical Manual of Mental Disorders (“DSM”)-IV
(American Psychiatric Assn. 2000), previously contained references to GAF.
The new DSM-5 (May, 2013), dispensed with the GAF score.
To be sure, this case is distinguishable from the Nowling case, discussed
supra, where the ALJ plucked a single higher GAF score from a multitude of
lower scores to justify discounting a treating physician’s opinion. Nowling, 813
F.3d at 1123. Here, Dr. Lord’s GAF scores for Dr. Preston were uniformly in
the 45-51 range (with one higher score of 54), indicating serious to moderate
symptoms or difficulty in social, occupational, or school functioning.
Nevertheless, the ALJ was correct in noting that the GAF score is not tied to
Dr. Preston’s impairment as the cause of his lower functioning. Dr. Preston’s
GAF scores are some indication of his ability to function, but not the most
important indicator. This court cannot say the ALJ’s decision to accord
Dr. Lord’s assigned GAF scores “little weight” was unsupported by substantial
evidence. Therefore, as to this issue, the court affirms.
Whether the ALJ Erred in Evaluating Dr. Preston’s Testimony
The other issue raised by Dr. Preston is whether the ALJ erred in finding
his testimony not credible that he was disabled prior to March 1, 2014. This
analysis must begin with the principle that the court must “defer to the ALJ’s
determinations regarding the credibility of testimony, so long as they are
supported by good reasons and substantial evidence.” Guilliams v. Barnhart,
393 F.3d 798, 801 (8th Cir. 2005). “When an ALJ reviews a claimant’s
subjective allegations . . . and determines whether the claimant and his
testimony are credible, the ALJ must examine the factors listed in Polaski11
and apply those factors to the individual.” Reynolds v. Chater, 82 F.3d 254,
258 (8th Cir. 1996).
In determining whether to fully credit a claimant’s subjective complaints,
an ALJ must consider several factors, including: whether such complaints are
supported by objective medical findings, whether the claimant has refused to
follow a recommended course of treatment, whether the claimant has received
minimal medical treatment, whether the claimant takes only occasional
medications, the claimant’s prior work record, observation of third parties and
examining physicians relating to the claimant’s daily activities; the duration,
frequency, and intensity of the symptoms; precipitating and aggravating
factors; dosage, effectiveness, and side effects of medication; and functional
restrictions. Wagner, 499 F.3d at 851 (citing Polaski v. Heckler, 739 F.2d
1320, 1322 (8th Cir. 1984)). A claimant’s subjective complaints may be
discredited only if they are inconsistent with the evidence as a whole. Id.
With regard to the factor of a claimant’s daily activities, the ALJ must
consider the “quality of the daily activities and the ability to sustain activities,
interest, and relate to others over a period of time and the frequency,
Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984).
appropriateness, and independence of the activities.” Wagner, 499 F.3d at 852
(citing Leckenby v. Astrue, 487 F.3d 626, 634 (8th Cir. 2007)) (emphasis in
original). Although activities which are inconsistent with a claimant’s
testimony of a disabling condition reflect negatively on the claimant’s
credibility, the ability to do light housework and occasional visiting with friends
does not support a finding that the claimant can do full-time work in the
“competitive and stressful conditions in which real people work in the real
world.” Reed, 399 F.3d at 923 (quoting Thomas v. Sullivan, 876 F.2d 666, 669
(8th Cir. 1989)).
In the Wagner case, the ALJ’s discrediting of the claimant’s subjective
complaints of pain was affirmed on appeal where Wagner had engaged in
extensive daily activities, as evidenced by his “Daily Activities Questionnaire”
and his testimony at the hearing, and where his testimony as to the limiting
effect of his pain was inconsistent with the medical record because his records
reflected that he did not pursue ongoing evaluation or treatment for his pain
and he did not seek or take pain medication on a regular basis. Wagner, 499
F.3d at 852-853. See also Baker v. Barnhart, 457 F.3d 882, 892-894 (8th Cir.
2006) (affirming ALJ’s discrediting of claimant’s subjective complaints of pain
where claimant engaged in a significant amount of activities of daily living--full
self-care, driving a car, shopping, and running errands--a medical source
opined that the claimant engaged in symptom exaggeration, the claimant did
not take pain medication, and the absence of an etiology for the alleged pain).
In Bentley v. Shalala, 52 F3d 784, 785-786 (8th Cir. 1995), the ALJ’s
discrediting of the claimant’s subjective complaints of pain was affirmed on
appeal where the claimant had not sought medical treatment for his pain for a
long period of time and was not taking any prescription medication for pain. In
addition, the record reflected that the claimant had applied for a number of
jobs during his claimed disability period. Id.
In Harvey, an ALJ who discredited the claimant’s testimony as to
limitations on his activities was affirmed where the evidence showed the
claimant had made prior inconsistent statements to his physicians regarding
his limitations and his asserted need to use crutches or a non-prescribed
walker was inconsistent with statements made by the claimant on other
occasions. Harvey, 368 F.3d at 1015-1016.
In Guilliams, 393 F.3d at 802-803, the Eighth Circuit affirmed an ALJ’s
discrediting of the claimant’s subjective complaints of back pain where
claimant used a cane, but no medical prescription for the cane existed; where
several medical exams revealed the claimant to be in no significant distress;
where MRIs of the spine revealed essentially normal findings; where the
claimant’s muscle mass was not atrophied despite his allegation of restriction
of motion and diminishment of strength; where the claimant declined to follow
medical advice regarding treatment of his pain; and where medical evidence
demonstrated that pain medication alleviated the claimant’s symptoms of pain.
In Dolph, 308 F.3d at 879-880, the ALJ’s discrediting of the claimant’s
subjective complaints of pain from kidney disease and degenerative spine
disease was affirmed where the claimant’s records of her kidney disease
showed “consistently stable renal function” and there was no record support
for "complaints of ongoing, severe, protracted discomfort.”
In the Nowling case, discussed above, the ALJ found Nowling partially
credible in that her condition existed, but the ALJ found non-credible Nowling’s
testimony regarding the disabling effects of her condition. Nowling, 813 F.3d at
1120. The Eighth Circuit remanded because the ALJ, in evaluating the
claimant’s testimony, failed to take into account the evidence in the record as a
whole which supported the claimant’s testimony and the nature of the
claimant’s condition itself. Id. at 1120-23. It is the above body of law this
court applies to the review of the record in this case.
The ALJ found Dr. Preston’s testimony about his condition pre-March 1,
2014, to be non-credible, but found his testimony about his condition postMarch 1, 2014, to be credible. AR27-28. As with Dr. Lord’s opinions from
2010 and 2012, the ALJ discredited Dr. Preston’s pre-March 1, 2014,
testimony based upon his activities of daily living, including work around his
property, taking care of his personal needs, driving, and his recreational
Although the court hesitates to disturb an ALJ’s credibility finding, here
remand is warranted for the same reasons discussed above concerning
Dr. Lord’s earlier opinons. The evidence of Dr. Preston’s daily activities prior to
March 1, 2014, is the same as after. Before the penultimate date, he drove,
worked on his property, rafted, fed animals, and took care of his personal
needs. AR252. He continued to do so afterward. AR263, 272. In fact, he
testified at the hearing before the ALJ on April 9, 2015, that he had completed
a rafting trip just a couple of days prior to the hearing. AR59-61.
In addition, there are other Polaski factors supporting Dr. Preston’s
credibility not discussed by the ALJ. Dr. Preston was aggressive about seeking
medical care and medication for his condition, as evidenced by the extensive
medical records and his dedication to move to New York City for the better part
of a year to work on improving his functioning. The observations of physicians
contained in the extensive medical record created by Dr. Preston’s efforts to
seek medical care are congruent with his own description of his functioning.
No suggestion of symptom exaggeration or malingering appears anywhere in
this record. His wife’s observations are also congruent with Dr. Preston’s
testimony; the ALJ never discusses Mrs. Preston’s corroborating testimony.
Dr. Preston never refused treatment or refused to take prescribed medication.
The ALJ failed to consider the side-effects of Dr. Preston’s anti-seizure
medication which caused fatigue. And there are objective medical findings in
excess supporting his condition and its effects on him. The ALJ was not
required to discuss each of the Polaski factors, but here, the ALJ omitted
discussion of nearly all the factors and the factors she did discuss did not
support her conclusion.
This may well be a case where two ALJs could hear and read the same
evidence and come to different conclusions about whether Dr. Preston is
disabled. But the evidence does not show a marked change mid-way through
the period of disability. Either Dr. Preston is disabled or he is not, but his
condition did not change appreciably for the better after November, 2011.
Having found that Dr. Preston was disabled (a determination not called into
issue before this court), the ALJ in this case did not support her rationale for
finding that disability manifested itself mid-way between November, 2011, and
April, 2015, the date of the hearing. The court therefore remands for the ALJ
to consider Dr. Preston’s testimony in light of all the Polaski factors, especially
the nature of his impairment and the longitudinal record. Nowling, 813 F.3d at
Type of Remand
For the reasons discussed above, the Commissioner’s partial denial of
benefits is not supported by substantial evidence in the record. Dr. Preston
requests reversal of the Commissioner’s decision with remand and instructions
for an award of benefits, or in the alternative reversal with remand and
instructions to reconsider his case.
Section 405(g) of Title 42 of the United States Code governs judicial
review of final decisions made by the Commissioner of the Social Security
Administration. It authorizes two types of remand orders: (1) sentence four
remands and (2) sentence six remands. A sentence four remand authorizes the
court to enter a judgment “affirming, modifying, or reversing the decision of the
Secretary, with or without remanding the cause for a rehearing.” 42 U.S.C.
A sentence four remand is proper when the district court makes a
substantive ruling regarding the correctness of the Commissioner’s decision
and remands the case in accordance with such ruling. Buckner v. Apfel, 213
F.3d 1006, 1010 (8th Cir. 2000). A sentence six remand is authorized in only
two situations: (1) where the Commissioner requests remand before answering
the Complaint; and (2) where new and material evidence is presented that for
good cause was not presented during the administrative proceedings. Id.
Neither sentence six situation applies here.
A sentence four remand is applicable in this case. Remand with
instructions to award benefits is appropriate “only if the record overwhelmingly
supports such a finding.” Buckner, 213 F.3d at 1011. In the face of a finding
of an improper denial of benefits, but the absence of overwhelming evidence to
support a disability finding by the Court, out of proper deference to the ALJ the
proper course is to remand for further administrative findings. Id.; Cox v.
Apfel, 160 F.3d 1203, 1210 (8th Cir. 1998).
In this case, reversal and remand is warranted not because the evidence
is overwhelming, but because the record evidence should be developed,
clarified and properly evaluated. See also Taylor v. Barnhart, 425 F.3d 345,
356 (7th Cir. 2005) (an award of benefits by the court is appropriate only if all
factual issues have been resolved and the record supports a finding of
disability). Therefore, a remand for further administrative proceedings is
Based on the foregoing law, administrative record, and analysis, it is
ORDERED that the plaintiff’s motion to reverse (Docket 14) is GRANTED
and the Commissioner’s decision is REVERSED and REMANDED for
reconsideration pursuant to 42 U.S.C. § 405(g), sentence four.
DATED this 8th day of February, 2018.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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