Wiszowaty v. Astrue, CAUSE NO.: 2:11-CV-7-PRC

CourtUnited States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
Writing for the CourtPAUL R. CHERRY
PartiesROBERT WISZOWATY, JR., Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant.
Docket NumberCAUSE NO.: 2:11-CV-7-PRC
Decision Date21 March 2012

MICHAEL J. ASTRUE, Commissioner of the Social Security
Administration, Defendant.

CAUSE NO.: 2:11-CV-7-PRC


Date: March 21, 2012


This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Robert Wiszowaty, Jr. on January 3, 2011, and Plaintiff's Memorandum in Support of His Motion for Summary Judgment [DE 21], filed by Mr. Wiszowaty on May 10, 2011. Mr. Wiszowaty requests that the decision of the Administrative Law Judge denying him supplemental security income benefits be reversed or, alternatively, remanded for further proceedings. For the following reasons, the Court grants the request for remand.


On October 11, 2007, Pamela Norton filed for supplemental security income ("SSI") benefits on behalf of Mr. Wiszowaty, who was a minor, for the month of October 2007 and the part of the month of November 2007 up to his eighteenth birthday. Mr. Wiszowaty's case was then reviewed for SSI as an adult from his eighteenth birthday in November 2007 forward. Mr. Wiszowaty's application was denied, as was his request for reconsideration. On September 23, 2009, Administrative Law Judge ("ALJ") Denise McDuffie Martin held an administrative hearing via video teleconference at which Mr. Wiszowaty, Mr. Wiszowaty's parents, and a vocational expert

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testified. On January 13, 2010, the ALJ issued a decision denying benefits. The ALJ made the following findings:

1. The claimant was born on [ ], 1989, and was therefore in the "Adolescents (age 12 to attainment of age 18)" age group, the date the application was filed (e.g., 20 CFR 416.926a(g)(2)(v). The claimant attained age 18 on [ ], 2007 (20 CFR 416.120(c)(4)).
2. The claimant had not attained age 22 as of October 11, 2007, the alleged onset date, but attained age 18 on [ ], 2007 (20 CFR 404.102, 416.120(c)(4) and 404.350(a)(5)).
3. The claimant has not engaged in substantial gainful activity since October 11, 2007, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
4. At all times relevant to this decision, the claimant has had the following severe impairments: a learning disability and mild mental retardation (20 CFR 404.1520(c) and 416.920(c)).
5. At all times relevant to this decision, the claimant has not had an impairment or combination of impairments that meets, medically equals or functionally equals any of the impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
6. Because the claimant did not have an impairment or combination of impairments that met, medically equaled any listing, or functionally equaled the listings, the claimant was not disabled prior to attaining age 18 (20 CFR 416.924(a)).
7. The claimant has not developed any new impairment or impairments since attaining age 18.
8. Since attaining age 18, the claimant has continued to have a severe impairment or combination of impairments (20 CFR 416.920(c)). The claimant has a learning disorder and mild mental retardation.
9. Since attaining age 18, the record shows that the claimant has not had an impairment or combination of impairments that meets or medically equals a listed impairment (20 CFR 416.920(d)).
10. After careful consideration of the entire record, I find that, since attaining age 18, the claimant has had the residual functional capacity to perform a full range of work at all exertional levels. He has the mental residual functional

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capacity to perform unskilled work which involves only simple, repetitive, routine tasks; with one- to two-step instructions.
11. The claimant has no past relevant work (20 CFR 416.965).
12. The claimant is currently a "younger individual age 18-44" (20 CFR 416.963).
13. The claimant has a limited education and is able to communicate in English (20 CFR 416.964).
14. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 416.968).
15. Since attaining age 18, considering the claimant's age, education, work experience, and residual functional capacity, jobs have existed in significant numbers in the national economy that the claimant has been able to perform (20 CFR 416.960(c) and 416.966).
16. The claimant was not under a disability, as defined in the Social Security Act, as a child, on or prior to [ ], 2007 (20 CFR 416.924(a)).
17. The claimant has not been under a disability, as defined in the Social Security Act, from October 11, 2007, through the date of this decision (20 CFR 404.350(a)(5), 404.1520(c) and 416.920(c)).

(AR 11-18).

On March 1, 2010, Mr. Wiszowaty filed a request for review, which the Appeals Council denied on October 29, 2010, leaving the ALJ's decision the final decision of the Commissioner.

The parties filed forms of consent to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42 U.S.C. § 405(g).

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Mr. Wiszowaty was born in 1989 and was 20 years old when the ALJ issued her decision. He had no past relevant work. Mr. Wiszowaty had received Child's Benefits from September 1, 1990, through June 2008 on the wage record of his father, and not because of Mr. Wiszowaty's own disability. The benefits ended when Mr. Wiszowaty was no longer a full-time student.

A. Physical and Mental Health Background

From the time he was a baby until 2008, Mr. Wiszowaty lived exclusively with his mother, Pamela Norton; he then moved to Indiana to live in his father's home, where he now lives. During preschool, his teacher suggested that Mr. Wiszowaty had a learning disability. He never socialized with other children and was a loner, which concerned his teachers. His mother testified that during school testing "nothing was coming back normally." She also testified that Mr. Wiszowaty has always been very dependent.

On May 2, 2003, Ray Anglin, a licensed clinical psychologist for the Iroquois Special Education Association, evaluated Mr. Wiszowaty, who was 13 years old at the time. The report includes Mr. Wiszowaty's Kaufman Test of Educational Achievement scores. In Mathematics Applications, Mr. Wiszowaty scored a percentile rank of 0.2, and a grade equivalent of 1.2; in Mathematics Computation, Mr. Wiszowaty scored a percentile rank of 1, and a grade equivalent of 3.0; in Reading Decoding, Mr. Wiszowaty scored a percentile rank of 6, and a grade equivalent of 2.9; and in Reading Comprehension, Mr. Wiszowaty scored a percentile rank of 5 and a grade equivalent of 2.9. (AR 291). Mr. Anglin indicated that these scores were within expectations based on Mr. Wiszowaty's "previously established educational handicap of mental impairment." Id. Mr. Anglin reported that Mr. Wiszowaty's "task motivation for both easy and difficult tasks was

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outstanding. His persistence on difficult tasks was very good and he had no objection to spending time on a task-he did not 'hurry through' difficult tasks." Id.

The lone treating doctor's report submitted by Mr. Wiszowaty was from Dr. Daniel Orozco of Riverside Neurology Associates in Kankakee, Illinois. The report indicates that Mr. Wiszowaty was diagnosed with a seizure disorder based on an EEG, after presenting with complaints of "dizziness & syncope." (AR 344).

A Bradley-Bourbonnais Community High School Indivualized Education Plan ("IEP") from November 10, 2006, when Mr. Wiszowaty was in 10th grade, indicated a disability of "mentally impaired." (AR 274). The IEP details that Mr. Wiszowaty was enrolled in all special education courses, except for physical education. The notes in the IEP show that Mr. Wiszowaty's PIAT (Peabody Individual Achievement Test) grade equivalents at that time were: Math 3.7, Reading Recognition 4.4, Reading Comprehension 6.8. (AR 276). The IEP also reports that he was uncomfortable in class and rarely spoke with his classmates, that he was sometimes rude to the para-professionals who ask him to complete assignments, and that he refused to discuss any reference to him being a sophomore or a later graduation date. It was noted that "[t]he only activity he seems to enjoy is helping lower functioning students when he can work in a tutorial position." Id.

An IEP Conference Report from Watseka Community High School in September 2007 lists Mr. Wiszowaty's primary disability as "mental retardation." (AR 292). It proposes "supplementary aids" such as help with organization, refocusing to stay on task, monitoring when working in small/large groups, clarified and restated directions, extended time for testing, grading modifications, and requiring a staff member to read the content of the tests. His special education teacher at Watseka, Jake Harms, reported that Mr. Wiszowaty had been in his class in 2003 and

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2004, went to a different school, and then re-enrolled at Watseka in 2007. He indicated that Mr. Wiszowaty's math, reading, and written language were at a third grade instructional level in 2007, when he was in the 11th grade, and that he was placed in all special education classes, except for physical education.

On a scale of 1 - 5 ("1" indicating "no problem"), comparing Mr. Wiszowaty's...

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