Organizing for Action William A. Taccino v. Social Security Administration

Filing 30

REPORT AND RECOMMENDATIONS. Signed by Magistrate Judge Stephanie A Gallagher on 12/11/2017. (c/m 12/11/17 bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ORGANIZING FOR ACTION
WILLIAM A. TACCINO

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v.
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Civil Case No. GLR-14-2112
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COMMISSIONER, SOCIAL SECURITY
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REPORT AND RECOMMENDATIONS
Pursuant to Standing Order 2014-01, the above-referenced case has been referred to me
for review of the parties’ dispositive motions and to make recommendations pursuant to 28
U.S.C. § 636(b)(1)(B) and Local Rule 301.5(b)(ix). [ECF No. 13]. I have considered both
parties’ filings, which include a motion for summary judgment filed by the Plaintiff, “Organizing
for Action William A. Taccino” (hereafter “Mr. Taccino”), and one filed by the Commissioner,
along with Mr. Taccino’s reply.

[ECF Nos. 22, 26, 28].

This Court must uphold the

Commissioner’s decision if it is supported by substantial evidence and if proper legal standards
were employed. 42 U.S.C. §§ 405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585, 589 (4th Cir.
1996); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). I find that no hearing is necessary.
See Loc. R. 105.6 (D. Md. 2016). For the reasons set forth below, I recommend that the
Commissioner’s motion be granted and that Mr. Taccino’s motion be denied.
Mr. Taccino filed his application for Disability Insurance Benefits (“DIB”) on April 30,
2012, alleging a disability onset date of December 1, 2010. (Tr. 162-68). His application was
denied initially and on reconsideration. (Tr. 55-62, 63-69). After a hearing on March 5, 2014,
(Tr. 25-54), an Administrative Law Judge (“ALJ”) issued an opinion denying benefits, (Tr. 1219). The Appeals Council denied review, (Tr. 1-5), making the ALJ’s decision the final,

reviewable decision of the Agency. Mr. Taccino sought judicial review on July 1, 2014. [ECF
No. 1].

Although his appeal was initially dismissed, (ECF No. 4), it was reopened for

adjudication on May 3, 2017, (ECF No. 5).
In the ALJ’s 2014 opinion, the ALJ determined that Mr. Taccino had acquired sufficient
coverage to remain insured through December 31, 2010. (Tr. 12). Accordingly, the relevant
period within which he had to establish disability was the one-month window between his
alleged onset date of December 1, 2010 and his date last insured of December 31, 2010.
The ALJ concluded that, during that period, Mr. Taccino suffered from the medically
determinable impairments of “nephrolithiasis with hematuria, hypertension, peripheral vascular
disease, and obesity.” (Tr. 14). However, the ALJ determined that, during the relevant time
frame, none of those impairments were severe. Id. Because she did not find any severe
impairments, the ALJ ended her analysis and concluded that Mr. Taccino had not been disabled
during December, 2010. (Tr. 19).
Because Mr. Taccino appears pro se, this Court has carefully reviewed the ALJ’s
opinion and the entire record. See Elam v. Barnhart, 386 F. Supp. 2d 746, 753 (E.D. Tex. 2005)
(mapping an analytical framework for judicial review of a pro se action challenging an adverse
administrative decision, including: (1) examining whether the Commissioner’s decision
generally comports with regulations, (2) reviewing the ALJ’s critical findings for compliance
with the law, and (3) determining from the evidentiary record whether substantial evidence
supports the ALJ’s findings). As in every case, the function of this Court is not to review Mr.
Taccino’s claims de novo or to reweigh the evidence of record. See Smith v. Schweiker, 795 F.2d
343, 345 (4th Cir. 1986) (citing 42 U.S.C. § 405(g) and Blalock v. Richardson, 483 F.2d 773,
775 (4th Cir. 1972)). Rather, this Court must determine whether, upon review of the whole

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record, the Commissioner’s decision is supported by substantial evidence and a proper
application of the law. See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Coffman, 829
F.2d at 517; see also 42 U.S.C. § 405(g). While there may be substantial evidence in the record
that would support a finding of disability, in addition to substantial evidence refuting such a
finding, this Court should not disturb the ALJ’s conclusion so long as it is one of the conclusions
supported by substantial evidence. For the reasons described below, in this case, substantial
evidence supports the ALJ’s decision.
The ALJ proceeded in accordance with applicable law at each step of the sequential
evaluation. The ALJ ruled in Mr. Taccino’s favor at step one and determined that he did not
engage in substantial gainful activity between his alleged onset date of December 1, 2010, and
his date last insured of December 31, 2010. (Tr. 14); see 20 C.F.R. § 404.1520(a)(4)(i).
At step two, the ALJ considered the severity of each of the impairments that Mr. Taccino
claimed prevented him from working. See 20 C.F.R. § 404.1520(a)(4)(ii). As noted above, the
ALJ concluded that Mr. Taccino’s alleged impairments were not severe in December, 2010.
The ALJ found Mr. Taccino to have medically determinable impairments as of December 31,
2010, including “nephrolithiasis with hematuria, hypertension, peripheral vascular disease, and
obesity.” (Tr. 14). The ALJ reviewed the medical evidence in the file, most of which post-dated
the relevant period. There are two brief medical notes in the file from 2010. On April 5, 2010,
during a visit with Dr. Jesus Tan, Mr. Taccino reported “[v]ague left sided chest discomfort, no
radiation, no shortness of breath.” (Tr. 384). Physical examination was normal, and, because
Mr. Taccino declined follow up testing, Dr. Tan instructed him to “return prn [as needed].” Id.
No further appointments are noted until October 7, 2010, where Mr. Taccino “complained of
some swelling of the legs.” Id. Physical examination was again normal, but Dr. Tan diagnosed

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peripheral edema and ordered lab work. Id. No additional visits are documented until February
4, 2011, when “the claimant had a normal physical examination. A radiograph of the chest was
normal. He was diagnosed with nephrolithiasis, peripheral edema, and obesity.” (Tr. 16); see
(Tr. 327-30). At that appointment, Mr. Taccino complained of a productive cough and sinus
issues, and was diagnosed with acute sinusitis, cough, and sore throat. (Tr. 329).

In her

evaluation of subsequent medical records, the ALJ’s discussion includes Mr. Taccino’s diagnosis
of peripheral vascular disease in August, 2011, and the extremely serious diagnosis of a brain
tumor, resulting in surgery, in early 2012. (Tr. 16-17). The ALJ appropriately made no finding
about Mr. Taccino’s ability or inability to work during any time period after December 31, 2010.
This Court’s careful review of the record and the ALJ’s opinion reveals no error warranting
remand.
This Court has also considered the specific arguments Mr. Taccino made in his motion
and reply. First, Mr. Taccino submits that the Commissioner never opposed his Motion for
Summary Judgment. Pl. Reply 1. However, in all Social Security appeals, the Commissioner’s
Motion for Summary Judgment also constitutes her opposition to any motion filed by the
Plaintiff. Moreover, even an unopposed Motion for Summary Judgment is not automatically
granted, so Mr. Taccino would not be entitled to relief unless his motion had established his
entitlement to summary judgment as a matter of law. See Custer v. Pan Am. Life Ins. Co., 12
F.3d 410, 416 (4th Cir. 1993).
Next, Mr. Taccino notes that the Commissioner’s brief contains a typographical error,
making reference to a date last insured for “Mr. Hill.” Def. Mot. 4. However, with the exception
of the substitution of the name “Hill” for “Taccino,” the Commissioner’s brief correctly asserts,

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and cites record evidence to prove, that Mr. Taccino’s date last insured was December 31, 2010.
(Tr. 12, 14); see also (Tr. 189).
Mr. Taccino’s primary argument is that many of his symptoms manifesting around
December, 2010, including his sinus symptoms and swelling in his lower extremities, were
caused by the brain tumor that did not get diagnosed until 2012. Pl. Reply 3-5. No medical
evidence appears to link the sinus symptoms and edema to the brain tumor. However, even
crediting Mr. Taccino’s contention that those earlier symptoms were connected to his later
diagnosis, Mr. Taccino is unable to meet his burden of proof to establish disability in December,
2010, due to the absence of medical records showing disabling impairments during that time.
See Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (noting that the burden rests with the
claimant, through the first four steps of the sequential evaluation, to present evidence
establishing disability during the relevant period). The symptoms documented during his few
medical appointments in 2010 and early 2011 simply do not reflect the level of severity to
establish disability, although, without question, Mr. Taccino’s medical condition worsened
significantly as time elapsed. As described above, each of the medical appointments in 2010 and
February, 2011 demonstrated a normal physical examination and only mild complaints of
symptoms, with no description of any significant functional impairment. (Tr. 327-30, 384). The
ALJ appropriately considered Mr. Taccino’s later medical records in evaluating his disability as
of December 31, 2010, but is not required to “relate back” the level of severe impairment he later
experienced to an earlier date.
The ALJ assigned “great and controlling weight” to the opinions of the reviewing State
agency disability physicians, who determined that there was insufficient medical evidence to
evaluate Mr. Taccino’s claim prior to December 31, 2010. (Tr. 18-19). The ALJ also assigned

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“no weight” to the opinion of Dr. Sadiq, who determined that Mr. Taccino was unable to work
from August 22, 2012 through August 22, 2013. (Tr. 18). The ALJ appropriately concluded that
Dr. Sadiq’s longitudinal treatment of Mr. Taccino began well after the date last insured, and that
Dr. Sadiq’s opinion thus pertained to the later time frame. Id. The ALJ’s analysis of the opinion
evidence is substantiated by the other evidence of record.
Finally, Mr. Taccino argues that the ALJ should have ordered a consultative examination.
Pl. Reply 7. Because any such order would have occurred years after Mr. Taccino’s date last
insured, with significant intervening medical conditions, it was within the discretion of the ALJ
to determine that a consultative examination would not be appropriate. See Bishop v. Barnhart,
78 F. App'x 265, 268 (4th Cir. 2003); see also Kellihan v. Shalala, 30 F.3d 129 (4th Cir. 1994)
(citing Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986)).
CONCLUSION
For the reasons set forth above, I respectfully recommend that the Court DENY Mr.
Taccino’s Motion for Summary Judgment, [ECF No. 22]; that the Court GRANT Defendant’s
Motion for Summary Judgment, [ECF No. 26]; that the Court AFFIRM the decision of the
Commissioner pursuant to 42 U.S.C. § 405(g); and that the Court order the Clerk to CLOSE this
case.
Any objections to this Report and Recommendations must be served and filed within
fourteen (14) days, pursuant to Federal Rule of Civil Procedure 72(b)(2) and Local Rule
301.5(b).
NOTICE TO PARTIES
Failure to file written objections to the proposed findings, conclusions, and
recommendations of the Magistrate Judge contained in the foregoing report within fourteen (14)

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days after being served with a copy of this report may result in the waiver of any right to a de
novo review of the determinations contained in the report and such failure shall bar you from
challenging on appeal the findings and conclusions accepted and adopted by the District Judge,
except upon grounds of plain error.

Dated: December 11, 2017

/s/
Stephanie A. Gallagher
United States Magistrate Judge

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