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Calderon v. Astrue

January 26, 2010

EDMUNDO CALDERON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Block, Senior District Judge

MEMORANDUM AND ORDER

Edmundo Calderon ("Calderon") seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits ("DIB"). For the following reasons, the case is remanded solely for the calculation of benefits.

I.

Calderon first applied for DIB in 1993, alleging that severe pain in his shoulders, arms and hands prevented him from continuing to work as a jeweler. Over the ensuing years, he received three adverse decisions from administrative law judges (ALJs); the pertinent aspects of those prior proceedings are summarized as follows:

A. 1995 Decision

The first decision was issued by ALJ Marilyn Hoppenfeld ("Hoppenfeld") on February 24, 1995. At step four of the familiar five-step evaluation process, Hoppenfeld found that Calderon could not perform his prior work due to limitations in his ability to "us[e] his hands for fine manipulations." AR at 296.*fn1 At step five, however, she concluded that Calderon could still perform other jobs in the national economy and, accordingly, found him not disabled.

On review, the Commissioner's Appeals Council vacated the decision on the ground that the list of other jobs relied on by Hoppenfeld had not been provided to Calderon's counsel in advance of the hearing. For reasons that do not appear in the record, the case was reassigned from Hoppenfeld to ALJ David Nisnewitz ("Nisnewitz").

B. 1996 Decision

Pursuant to the Appeals Council's remand, Nisnewitz held an evidentiary hearing at which Calderon's counsel was allowed to question a vocational expert ("VE") regarding the list of jobs relied on by Hoppenfeld.*fn2 On October 19, 1996, Nisnewitz issued a decision finding that Calderon was incapable of performing his prior work; like Hoppenfeld, Nisnewitz based his finding on evidence showing that Calderon was unable to perform "repetitive fine manipulation." AR at 25. Nisnewitz ultimately agreed with Hoppenfeld's conclusion, however, that Calderon could perform other jobs in the national economy. This time, the Appeal Council denied review.

Calderon thereupon sought judicial review in this Court. On February 23, 2000, the Court issued a memorandum and order ("M&O") vacating the Commissioner's decision. See Calderon v. Apfel, Case No. 98-CV-5302, at 7 (E.D.N.Y. Feb. 23, 2000).*fn3 The Court concluded that Nisnewitz did not have to give controlling weight to Calderon's treating physician in assessing whether Calderon could perform other jobs in the national economy, but that he had failed to follow the Commissioner's regulations requiring him to describe and justify "what weight [the treating physician's] opinion should be given if not controlling." Id. at 6; see Schaal v. Apfel, 134 F.3d 496, 503-04 (2d Cir. 1998) ("[The] Regulations provide that the Commissioner 'will always give good reasons in our notice of determination or decision for the weight we give [claimant's] treating source's opinion.'" (quoting 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2))). The Court remanded to the Commissioner "for further proceedings consistent with this Memorandum and Order." M&O at 7. The Appeals Council, in turn, remanded to Nisnewitz.

C. 2006 Decision

On March 13, 2006, Nisnewitz convened an evidentiary hearing, at which Dr. Louis Lombardi ("Lombardi") testified as a medical expert. Lombardi testified that Calderon would have "some difficulty" with gross manipulation, but that he "could do fine manipulation as far as [Lombardi could] see." AR at 508-09. A vocational expert testified that such a person could perform Calderon's prior work.

On August 17, 2006, Nisnewitz issued a decision finding Calderon not disabled. Unlike Hoppenfeld's decision and his own prior decision, the 2006 decision did not rely on Calderon's ability to do other work; instead, Nisnewitz found, based on Lombardi's testimony, that Calderon had no limitation in fine manipulation and, therefore, could perform his past work as a jeweler. In short, Nisnewitz disavowed his prior step-four determination, thereby obviating the need to address the step-five error identified in the Court's 2000 M&O. He offered no explanation for the change. When the Appeals ...


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