United States District Court, D. Maryland
ORGANIZING FOR ACTION WILLIAM A. TACCINO
COMMISSIONER, SOCIAL SECURITY
REPORT AND RECOMMENDATIONS
Stephanie A. Gallagher United States Magistrate Judge.
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.
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. 12-19). 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).
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.
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).
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 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.
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. §
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 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
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).
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, and cites record
evidence to prove, that Mr. Taccino's date last insured
was December 31, 2010. (Tr. 12, 14); see also (Tr.
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.
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 “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.
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 Fed.Appx. 265, 268 (4th Cir.
2003); see ...