United States District Court, N.D. Ohio, Eastern Division
C. NUGENT JUDGE.
REPORT AND RECOMMENDATION
Jonathan D. Greenberg United States Magistrate Judge.
Michael Stephen Gullas, ("Plaintiff1 or
"Gullas"), challenges the final decision of
Defendant, Nancy A. Benyhill,  Acting Commissioner of Social
Security ("Commissioner"), denying his application
for a Period of Disability ("POD") and Disability
Insurance Benefits ("DIB") under Title H of the
Social Security Act, 42 U.S.C. §§ 4l6(i), 423, 1381
et seq. ("Act"). This Court has
jurisdiction pursuant to 42 U.S.C. § 405(g). This case
is before the undersigned United States Magistrate
Judge pursuant to an automatic referral under Local Rule
72.2(b) for a Report and Recommendation. For the reasons set
forth below, the Magistrate Judge recommends that the
Commissioner's final decision be AFFIRMED.
March 2015, Gullas filed an application for POD, DIB, and
SSI, alleging a disability onset date of November 9, 1964 and
claiming he was disabled due to depression, anxiety, erratic
thinking, a learning disability, attention deficit
hyperactivity disorder, and obsessive-compulsive disorder.
(Transcript (“Tr.”) 248, 255, 285.) The
applications were denied initially and upon reconsideration,
and Gullas requested a hearing before an administrative law
judge (“ALJ”). (Tr. 172, 175, 182, 189, 194.)
January 31, 2017, an ALJ held a hearing, during which Gullas,
represented by counsel, and an impartial vocational expert
(“VE”) testified. (Tr. 70.) On May 2, 2017, the
ALJ issued a written decision finding Gullas was not disabled
prior to March 17, 2015, but was disabled as of March 17,
2015. (Tr. 8-36.) Because Gullas' date last insured for
Title II benefits was December 31, 2014, this resulted in an
award of SSI benefits only, not POD or DIB. (Id.)
The ALJ's decision became final on February 1, 2018, when
the Appeals Council declined further review. (Tr. 1.)
March 29, 2018, Gullas filed his Complaint to challenge the
Commissioner's final decision. (Doc. No. 1.) The parties
have completed briefing in this case. (Doc. Nos. 12, 14, 15.)
Gullas asserts the following assignments of error:
(1) The Commissioner's finding that Mr. Gullas' onset
of disability was March 17, 2015 is not based on substantial
evidence and also violates Social Security Ruling 83-20. The
Commissioner erred in failing to obtain the advice of a
medical expert as to onset.
(2) The Commissioner's residual functional capacity
assessment for the period prior to March 17, 2015 is not
based on substantial evidence.
(3) The Appeals Council erred in finding that Mr. Gullas did
not have good cause for submitting the neurocognitive
assessment of Joseph Steiner, Ph.D.
(Doc. No. 12.)
Personal and Vocational Evidence
was born in November 1962 and was 54 years-old at the time of
his administrative hearing, making him a “person
closely approaching advanced age” under social security
regulations. (Tr. 112.) See 20 C.F.R. §§
404.1563(d) & 416.963(d). He has a limited education and
is able to communicate in English. (Tr. 28.) He has
past relevant work as a janitor and oil extractor. (Tr. 27.)
Evidence prior to Date Last Insured of December 31,
1969, at age 6, Gullas was evaluated for special education
services with the Warren Woods Public School District in
Michigan. (Tr. 365.) Gullas was an “extremely immature
youngster with a lot of emotional problems, ” who was
“functioning on about a 4-year-old level
socially.” (Id.) His weaknesses were reading
and arithmetic, though his ability level was thought to be
greater than his actual achievement. (Id.) He
required “close supervision and academic
1970, at age 7, Gullas was re-evaluated by his school
district. (Tr. 361.) He was reading at the second grade level
and had good sight vocabulary. (Id.) His weakness
was comprehension. (Id.) His teachers integrated him
into the regular second grade classroom and he made a
“successful adjustment but still require[d] some
guidance in behavior management and academic skills.”
(Id.) He also had improved “socially and
emotionally” since his prior evaluation. (Id.)
fourth grade report cards indicated he was reading at the
fourth grade remedial level. He was making satisfactory
progress in some areas and needed to improve in others. (Tr.
355, 357, 358.) In the fifth grade, Gullas underwent academic
testing, achieving scores in the second to the fortieth
percentile. (Tr. 359.) He scored the lowest in study skills
and the highest in language. (Id.) Generally, Gullas
was working at the second to third grade level.
(Id.) Peabody individual achievement tests also
confirmed Gullas was performing at the second to third grade
level. (Tr. 362, 363.)
underwent additional academic testing in 1974, 1976, and
1977. (Tr. 375, 378, 379.) The majority of his scores fell in
the below average range. (Id.) His report cards from
grade seven and eight revealed grades in the C and D range.
1977, Gullas was referred to a school psychologist due to
“increased academic and social problems.” (Tr.
368.) In October 1977, when Gullas was in the ninth grade, he
underwent a psychological evaluation. (Tr. 370.) The
evaluating psychologist, G. Bauer, noted Gullas gave up
easily, failed to turn in work, and struggled to sustain
attention in school. (Id.) Gullas' father
reported Gullas' early development was within normal
limits, but there had been some stressors in the home in
recent years. (Id.) Gullas' father relayed
Gullas enjoyed working on car engines and was currently
saving up for a motorcycle with an after school landscaping
job. (Tr. 371.)
testing conducted during the evaluation revealed Gullas'
overall ability fell within the “slow learning
range.” (Id.) His non-verbal abilities were in
the average range and he had strong psychomotor and visual
skills. (Id.) He had a “distinctive
deficiency” in spacial abilities. (Id.)
However, the examiner concluded Gullas' measured
abilities were “a very conservative estimate.”
(Id.) Academic testing revealed Gullas read at the
8.5 grade level, spelled at the 5.2 grade level, and had
“not mastered the basic number facts” in
mathematics. (Id.) The examiner recommended
continued social work services through the school.
October 22, 2014, Gullas initially saw primary care physician
Katherine Ayers M.D. (Tr. 528.) He reported frequent
urination and visual problems in the right eye.
(Id.) He explained he was scheduled to undergo work
up for multiple sclerosis and sleep apnea, but had lost his
insurance. (Id.) Gullas reported losing his job 8
years prior and a recent divorce, which he found stressful.
(Tr. 529.) Dr. Ayers observed Gullas was applying “for
disability for psychiatric reasons, but he ha[d] never seen a
examination, Gullas was malodorous and morbidly obese. (Tr.
530.) He was wheezing, with bilateral pitting edema on his
ankles. (Id.) He had a normal gait, a normal
neurological examination, was oriented to person, place, and
time, and was depressed. (Id.) Dr. Ayers referred
Gullas to a urologist and ophthalmologist. (Tr. 531.) She
ordered a sleep study and labwork as well. (Id.)
underwent a sleep study on November 22, 2014. (Tr. 550.)
During the sleep study, Gullas refused to undergo a portion
of the study because “he would not use the PAP therapy
at home.” (Id.) The sleep study confirmed
obstructive sleep apnea. (Tr. 551.)
returned to Dr. Ayers on November 24, 2014. (Tr. 522.) Gullas
refused to see a dietician regarding weight loss, relaying he
knew how to lose weight. (Id.) He also did not want
to start hypertension medication because he wanted to alter
his diet first. (Id.) Gullas requested a referral to
a psychiatrist for his depression, which Dr. Ayers provided.
(Tr 522, 524.) On examination, Gullas had a normal gait,
normal neurological examination, and normal mood and affect.
Evidence following Date Last Insured of December 31,
January 26, 2015, Gullas visited Dr. Ayers, reporting he had
seen a psychiatrist for his depression. (Tr. 518.) He
requested a referral to a neuro-psychologist for evaluation
of attention-deficit disorder and a referral to a neurologist
to discuss multiple sclerosis. (Id.) On examination,
Gullas had a normal gait and normal neurological examination.
(Tr. 520.) Dr. Ayers categorized Gullas' mood and affect
as “indifferent.” (Id.) She provided
referrals to a neuro-psychologist and neurologist and
recommended Gullas begin hypertension medications.
February 18, 2015, Gullas had a multiple sclerosis
consultation with neurologist John Andrefsky, M.D. (Tr. 560.)
He reported he had lost vision in his right eye for two
months in 2008. (Id.) Gullas relayed his right eye
vision had returned, but the vision in his left eye was
better. (Id.) He denied any issues with walking,
weakness, or numbness in his extremities. (Id.)
Gullas described episodes of confusion over the past several
examination, Gullas' recent and remote memory were intact
and his concentration and attention were normal. (Tr. 562.)
He displayed adequate knowledge of current events and his
opthalmoscopic, motor, and sensory examinations were all
normal. (Tr. 563.) Gullas also has normal coordination and
gait. (Id.) Dr. Andrefsky ordered brain and cervical
spine MRIs, an EEG, and labwork. (Tr. 563, 564.) The doctor
also observed Gullas had a “normal neurological
examination” and recommended weight loss. (Tr. 564.)
February 20, 2015, Gullas underwent a mental health
diagnostic assessment at Signature Health with therapist
Cathleen McLaughlin. (Tr. 444.) Gullas reported he recently
divorced and others had been advising him to seek help.
(Id.) He described poor sleep, anger, poor
comprehension, hyperactivity, and difficulty in school. (Tr.
444, 454.) Ms. McLaughlin diagnosed adjustment disorder with
anxiety/depression and assessed a Global Assessment of
Functioning (“GAF”) score of 60. (Tr. 445,
returned to Signature Health on March 11, 2015 for a
psychiatric evaluation with psychiatrist Luis Ramirez, M.D.
(Tr. 382.) Gullas denied a history of mental health
treatment, secondary to a lack of insurance. (Id.)
He described a long history of psychosocial difficulties,
including poor learning, relationships, and vocational
history. (Id.) On examination, Gullas was poorly
dressed and groomed and his judgment and insight were
limited. (Id.) Gullas reported depression, poor
concentration and attention, and some obsessive-compulsive
symptoms. (Id.) Dr. Ramirez diagnosed ADHD, sleep
apnea, and a mood disorder. (Id.) He strongly
advised Gullas to receive treatment for his sleep apnea and
prescribed Strattera and Abilify. (Id.)
March 16, 2015, Gullas visited Dr. Ayers, reporting he
stopped most of his medications. (Tr. 513.) Gullas' blood
pressure was very high and Dr. Ayers noted he was having
difficulty making any lifestyle changes. (Id.)
Gullas described a recent episode of chest pain and right ear
deafness. (Id.) On examination, Gullas had a normal
gait, mood, and affect. (Tr. 516.) Dr. Ayers ordered an EKG
for the chest pain, which was normal. (Tr. 516, 517.) Dr.
Ayers referred Gullas to an ENT for his right ear hearing
loss and strongly encouraged him to take his blood pressure
medications. (Tr. 516.)
same date, Gullas visited Dr. Andrefsky for follow up. (Tr.
555.) Gullas had not obtained the prescribed MRIs or EEG.
(Id.) Dr. Andrefsky noted an MRI from 2010 revealed
several white matter lesions on the brain. (Id.)
Gullas' B12 and folate levels were within normal limits.
(Id.) On examination, Gullas' recent and remote
memory were intact. He had no tremor and a normal gait and
station. (Tr. 557, 558.) His muscle tone and motor exam were
both normal. (Tr. 558.) Dr. Andrefsky concluded Gullas was
“stable from a neurological standpoint” and
encouraged Gullas to obtain the MRIs and an EEG, as well as
lose weight and treat his sleep apnea. (Tr. 559.) Dr.
Andrefsky diagnosed restless leg syndrome and prescribed
Gabapentin. (Tr. 558.)
March 25, 2015, Gullas visited Dr. Ramirez at Signature
Health, reporting side effects from his Strattera and
Abilify. (Tr. 386, 389.) He described poor sleep, mood
changes, and anxiety, but denied any suicidal ideation or
psychosis. (Tr. 389.) Dr. Ramirez prescribed Latuda.
April 7, 2015 MRI of the cervical spine revealed a disc
herniation at ¶ 5-6, but no stenosis. (Tr. 577.)
Ayers filled out a form prepared by the Social Security
Administration on April 24, 2015. (Tr. 510-511.) Within this
form, Dr. Ayers noted Gullas “states his health began
to decline in 2007 when he lost his job.” (Tr. 510.)
She relayed while “specific dates for each condition
are not known, ” Gullas had been stable since October
2014. (Id.) She noted Gullas was non-compliant with
her diet, exercise, and weight loss recommendations. (Tr.
511.) Dr. Ayers provided the following opinion on Gullas:
Mr. Gullas' depression and negativity would make it very
difficult for him to interact with coworkers and the public.
He is physically limited by his morbid obesity, however
suspect his physical limitations are exacerbated by
depression. Formal functional capacity testing through PT/OT
7, 2015, Gullas visited Dr. Ramirez, reporting he was doing
better on his medications, but continued to have issues with
concentration and attention. (Tr. 403.) His mood was stable
and he denied any anger problems. (Id.) Dr. Ramirez
continued Gullas' Latuda and prescribed Wellbutrin. (Tr.
returned to Dr. Ayers on May 18, 2015, requesting a
“narcotic” to sleep at night and assist him in
losing weight. (Tr. 611.) Dr. Ayers advised him medications
would not effectively treat his sleep apnea and observed
Gullas had no specific weight loss plan. (Id.) On
examination, Gullas' gait was normal. (Tr. 614.) His
blood pressure remained high. (Id.) Dr. Ayers
prescribed Temazepam for sleep. (Id.) Gullas saw Dr.
Ayers again on May 27, 2015, with complaints of poor sleep
and a request for weight loss medication. (Tr. 607.) Dr.
Ayers advised Gullas she would not prescribe a sleep aid and
weight loss medication concurrently. (Id.) She
recommended he keep a food diary and observed Gullas needed
to “take active steps on his own in order to improve
his situation.” (Tr. 610.) She prescribed Ambian for
22, 2015, Gullas visited Dr. Ayers with a food diary
confirming a poor diet. (Tr. 603.) Despite this, Gullas
declined a referral to a dietician. (Id.) Dr. Ayers
found Gullas to be “insistent, somewhat
demanding” and “in denial with regards to his
poor eating habits.” (Tr. 606.) She prescribed Belviq
for weight loss. (Id.)
returned to Dr. Ayers on September 8, 2015, reporting
difficulty breathing with any type of exertion, including
eating. (Tr. 599.) Dr. Ayers found Gullas to be
“fixated on his sleep disorder, ” which Gullas
reported “was not treatable.” (Id.)
Gullas indicated he was not capable of losing weight without
medication. (Id.) On examination, Gullas had normal
breath sounds, a normal gait, no edema, and a dysphoric and
futile mood. (Tr. 602.) Dr. Ayers ordered pulmonary function
Ramirez filled out a form regarding Gullas on January 28,
2016. (Tr. 634.) He opined Gullas had some limitations in his
abilities to (1) remember locations and work-like procedures;
(2) understand/remember short and simple instructions; (3)
sustain an ordinary routine without special supervision; (4)
make simple work-related decisions; (5) maintain socially
appropriate behavior; (6) ask simple questions or request
assistance; (7) accept instruction; and (8) respond
appropriately to criticism from supervisors. (Id.)
Dr. Ramirez found Gullas had significant limitations in his
abilities to (1) understand, remember, and carry out detailed
instructions; (2) maintain attention/concentration for
periods of time; (3) complete a work day without
interruptions from symptoms; (4) perform at a consistent pace
without an unreasonable amount of breaks; (5) get along with
co-workers or peers without distracting them or exhibiting
behavioral extremes; (6) respond appropriately to changes in
the work setting; (7) set realistic goals or make plans
independently of others; and (8) require additional
supervision to carry out detailed work assignments.
February 12, 2016, the Ohio Department of Opportunities for
Ohioans with Disabilities determined Gullas was eligible for
vocational rehabilitation services. (Tr. 633.) He was found
to be “most significantly disabled, ” with
limitations in self-direction for employment outcome,
interpersonal skills, and work tolerance. (Id.)
October 23 - 27, 2016 Gullas was psychiatrically hospitalized
after a suicide attempt. (Tr. 656, 688.) He described
suicidal ideation and admitted he had discontinued his
psychotropic medications on October 1, 2016 because he did
not think they were helpful. (Tr. 656.)
followed up with Dr. Ramirez on November 23, 2016, reporting
medication compliance. (Tr. 1059.) Dr. Ramirez observed
Gullas had not “collaborated with other therapeutic
plans offered to him.” (Tr. 1059.) During the session,
Gullas was tearful, explaining he was unable to live alone.
(Id.) He described depression but denied suicidal
ideation. (Id.) Dr. Ramirez observed Gullas was
displaying a “very dependant attitude.”
(Id.) Gullas returned to Dr. Ramirez on December 5,
2016, reporting his medications were helpful. (Tr. 1069.)
However, he was pessimistic about the future and
“negative about improving and even participating in
January 11, 2017, Gullas reported increased stress over his
financial difficulties and upcoming disability hearing. (Tr.
1095.) Gullas indicating he had “never worked”
and was not able “to function around other
people.” (Id.) While Gullas denied suicidal
ideation, Dr. Ramirez was “concerned about the future
if he does not get the disability decision.”
State Agency Reports
August 13, 2015, Gullas underwent a consultative examination
with psychologist Alison Flowers, Psy.D. (Tr. 586.) He
reported he could not “take care of [himself his] whole
life.” (Id.) He indicated he lived alone and
depended upon his friends to pay his rent. (Tr. 587.) Gullas
relayed he dropped out of school in the ninth grade and was
in special education for the entirety of his academic career.
(Id.) He reported difficulty obtaining a job due to
his lack of education and indicated he had “never been
able to hold a job for more than a couple of months at a time
due to his concentration problems.” (Tr. 588.) Gullas
described depression, poor sleep, poor concentration,
excessive worry, and irritability. (Tr. 589.)
examination, Gullas' expressive and receptive language
skills were adequate, but his thought process was tangential.
(Tr. 590.) His attention and concentration were mildly
impaired and he was able to complete simple calculations.
(Tr. 590-591.) His recent and remote memory skills were
mildly impaired. (Tr. 591.) Dr. Flowers estimated Gullas'
intellectual functioning was in the borderline range.
upon this examination, Dr. Flowers diagnosed attention
deficit hyperactivity disorder (“ADHD”),
depressive disorder, anxiety disorder, and borderline
intellectual functioning. (Tr. 591.) She provided the
following discussion on Gullas' work-related mental
1. Describe the claimant's abilities and
limitations in understanding, remembering, and carrying out
The claimant reported that he has difficulty carrying out
instructions due to concentration problems. He did appear to
have concentration difficulties during this appointment.
Questions, at times, needed to be repeated. He also had
difficulty remembering objects after delay.
2. Describe the claimant's abilities and
limitations in maintaining attention and concentration, and
in maintaining persistence and pace, to perform
simple tasks and to perform multi-step
The claimant appeared to have difficulty sustaining attention
and concentration during this appointment. He was tangential.
However, he did appear capable of performing simple tasks.
For example, he could perform simple calculations and his
digit span was adequate. He may have more difficulty on
multi-step tasks. For example, he declined to complete serial
3s. He reported that he has difficulty driving due to his
concentration problems. He has only worked jobs in the past
that require him to do simple tasks.
3. Describe the claimant's abilities and
limitations in responding appropriately to supervision and to
coworkers in a work setting.
The claimant has only held short term jobs, although did not
report any problems related to getting along with others
while working. He did report a history of irritability, that
he reports has improved. He interacted appropriately
throughout the appointment.
4. Describe the claimant's abilities and
limitations in responding appropriately to work pressures in