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Kathi Imbo v. Michael J. Astrue

August 26, 2011

KATHI IMBO, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Susan E. Cox

MEMORANDUM OPINION AND ORDER

Plaintiff, Kathi A. Imbo ("Imbo"), seeks judicial review of a final decision of the Commissioner of the Social Security Administration ("SSA") denying her application for a period of disability and for Social Security Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act").*fn1 Imbo has filed a Motion for Summary Judgment which seeks a reversal or remand of the Commissioner's final decision. For the reasons stated below, we grant Imbo's motion and remand the case to the Administrative Law Judge for further findings consistent with this opinion [dkt. 15].

I. Procedural History

Imbo filed an application for DIB on March 2, 2007 which was initially denied on April 27, 2007 and upon reconsideration on July 24, 2007.*fn2 Imbo then requested a hearing and, on November 17, 2008, Administrative Law Judge ("ALJ") Mona Ahmed conducted an evidentiary hearing on Imbo's DIB claim.*fn3 After ordering a supplemental neuropsychological evaluation for Imbo, the ALJ issued a decision denying Imbo's disability claim.*fn4 Imbo appealed this decision to the Appeals Council of the SSA which denied her appeal on April 1, 2010.*fn5 Imbo then sought review of SSA's denial of her disability claim from this Court which has jurisdiction pursuant to 42 U.S.C. § 405(g).

II. The Hearing and Decision

A. Testimony and Evidence at the Hearing

The ALJ found that Imbo was insured through March 31, 2006. At the hearing, Imbo testified that she suffered a stroke in 2003 which caused her to experience significant memory issues. Her testimony on this point was unequivocal: "I have a hard time remembering things. I can't explain myself or why I do the things I do, but I get very confused. I can't think of the right words to say what I want to say."*fn6 Although Imbo acknowledged that she felt better after receiving treatment for her stroke, including speech therapy, her memory issues really did not get better. She testified that she could not remember things that happened a few days ago and that she had difficulty completing familiar tasks, even if the steps for the tasks were written down if some time elapsed since her last attempt. She stated that she often got confused and could not access her computer or e-mail without a "cheat sheet."*fn7 She rarely drove as a result of her confusion and her husband did most of the chores around the house, although she occasionally cooked a meal.*fn8

Imbo did not talk with her primary care physician, Catherine Baker, M.D., about her memory issues because she consulted with Dr. Baker to treat and control her diabetes and she found it difficult to discuss other issues such as her memory loss. Dr. Baker did not make any specific recommendations to address Imbo's memory deficiencies.*fn9

In addition to the memory problems and diabetes that Imbo described, she also discussed the fact that she suffered from back pain exacerbated by her weight. She stated that she could not stand more than fifteen minutes without pain.*fn10

Ernest Mond, M.D. testified as a consultative medical expert. He stated that the medical records indicated that Imbo was morbidly obese and suffered from hypoparathyroidism. He also noted that Imbo's diabetes was not completely controlled. He confirmed that Imbo's back complaints were consistent with her medical records and that based on his review, she should be restricted from standing or walking more than two hours per day, should never be on ladders, ropes or scaffolds or unprotected heights, should not operate dangerous machines and only occasionally bend, squat, kneel or crawl. Most pertinently to this appeal, however, Dr. Mond also stated that Imbo's medical records showed a lesion in the speech area of her brain due to her stroke and that he believed that her reported memory loss was credible given that stroke. He could not, however, assess the full impact of this deficit based on the record and recommended that Imbo be evaluated by a neuropsychologist.*fn11 The ALJ ordered this evaluation.

The neuropsychologist's evaluation was done and a report of that examination was submitted to the ALJ, but there was no live testimony from (or cross examination of) the doctor. In his report, Dr. Hilger stated that Imbo was an "intelligent and capable" woman who could perform work-related activities involving understanding, memory and sustained concentration. He did, however, validate a deficit in Imbo's short-term memory.*fn12

The Vocational Expert, James Breen, added very little to the record and testified without the benefit of the neuropsychological evaluation. He did state that he was unwilling to find that Imbo's cognition problem limited her to unskilled work.*fn13

B. The ALJ's Decision

In her decision, the ALJ found that Imbo was insured through March 31, 2006. She further found that Imbo had severe impairments of hypoparathyroidism, diabetes, hypertension and status post-stroke through her date last insured, but did not have an impairment or combination of impairments which met or medically equaled any of the listed impairments, including listings 9.08 for Diabetes Mellitus, 11.04 for Central Nervous System Vascular Accident and 9.03 for Hyperparathyroidism. She retained a residual functional capacity ('RFC") to lift twenty-five pounds occasionally and ten pounds frequently, stand/walk about two hours in an eight hour day, sit for at least six hours, not climb ladders, ropes or scaffolds, avoid heights, ...


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