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Novak v. Berryhill

United States District Court, N.D. Illinois, Western Division

March 29, 2017

Alexander M. Novak Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, [1]Defendant.

          MEMORANDUM OPINION AND ORDER

          Iain D. Johnston United States Magistrate Judge

         Plaintiff Alexander Novak was found to be disabled shortly after birth, and has been receiving Supplemental Security Income benefits since then.[2] When he reached age 18, as required by Social Security regulations, his eligibility was re-determined under adult standards, and he was found by an administrative law judge (“ALJ”) to no longer be disabled. Plaintiff now argues that the ALJ wrongly concluded he could work full-time despite his borderline intellectual functioning and leg problems. As explained below, a remand is required to further develop the record regarding several unresolved issues.

         BACKGROUND

         On December 9, 2014, a hearing was held before the ALJ. Plaintiff and his mother were present, but they were not represented by counsel. The ALJ informed plaintiff that he had the right to an attorney who would “only get paid if you win.” R. 55. After plaintiff and his mother both answered that plaintiff was willing to go forward without an attorney, the ALJ asked that they sign a waiver and they each did so. See Ex. 17B.

         The ALJ then asked whether plaintiff whether he had been given “a CD with [his] file on it.” R. 58. When plaintiff's mother answered “yes, ” the ALJ stated that she “really need[ed] Alex to be answering this.” R. 58. Plaintiff stated that they had been given a disk. The ALJ asked whether he or his mother had been able to open it and see the contents. Plaintiff answered “no.” Id. The ALJ summarized, in very general terms, the type of documents on the disk and asked if plaintiff had any objections to them. Plaintiff answered “no” and the records were admitted into evidence.

         After these preliminaries, the ALJ questioned plaintiff, asking first about recent doctor visits. After a few questions, plaintiff's mother started answering the questions. The ALJ eventually asked about a notation stating that when plaintiff was a senior in high school, someone suggested that he talk to a social worker about what to do when he graduated. Plaintiff's mother explained that this visit never happened because the woman “was very firm with [plaintiff] and he kind of [] shut down and he stopped talking to her [] completely.” R. 62. Thereafter, the following back and forth then ensued between the ALJ and plaintiff's mother:

Q Were you part of those discussions [with the social worker]?
A Correct. I was.
Q So what kinds of things was she discussing?
A She just said he's 18 now and you cannot be in this discussion.
Q Well she's got a point.
A I know. It -
Q So you -
A He's my baby and -
Q I know but - he's your baby.
A Right. Yeah.
Q He's also a man.
A I know. I understand that.
Q And what you as a family need to decide is how's Alex going to function for the rest of his life? Is he going to be on disability for the rest of his life or is he going to try and get some help to figure out if there's some kind of job he could do or not? You know? I mean -
A I mean - and I understand what you're saying, but I guess you could say I'm one of these overprotective mothers.
Q Well I understand. If I had a kid with spina bifida, I would be extremely overprotective as well.
A Just because of all the surgeries he had on his head and -
Q All right.
A I mean he almost died on us once so -
Q But that was a long time ago.
A I know it was, but he's still -
Q That was -
A I know, I'm just overprotective I guess I -
Q Yeah. And the question as a mom - and I'm not a therapist so I can't pursue this very far, but as a mom, lots of moms have problems with their kids, and our goal as parents is to give our kids the tools ...

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