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Gullas v. Berryhill

United States District Court, N.D. Ohio, Eastern Division

February 5, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



          Jonathan D. Greenberg United States Magistrate Judge.

         Plaintiff, Michael Stephen Gullas, ("Plaintiff1 or "Gullas"), challenges the final decision of Defendant, Nancy A. Benyhill, [1] 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[2] 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.


         In 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.)

         On 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.)

         On 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.)

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Gullas 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.)

         B. Medical Evidence[3]

         1. Evidence prior to Date Last Insured of December 31, 2014

         In 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 tutoring.” (Id.)

         In 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.)

         Gullas' 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.)

         Gullas 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. (Tr. 376.)

         In 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.)

         Intelligence 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. (Id.)

         On 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 psychiatrist.” (Id.)

         On 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.)

         Gullas 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.)

         Gullas 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. (Tr. 524.)

         2. Evidence following Date Last Insured of December 31, 2014

         On 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. (Id.)

         On 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 years. (Id.)

         On 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.)

         On 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[4] (“GAF”) score of 60. (Tr. 445, 446.)

         Gullas 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.)

         On 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.)

         That 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.)

         On 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. (Id.)

         An April 7, 2015 MRI of the cervical spine revealed a disc herniation at ¶ 5-6, but no stenosis. (Tr. 577.)

         Dr. 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 is recommended.


         On May 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. 404.)

         Gullas 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 sleep. (Id.)

         On June 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.)

         Gullas 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 testing. (Id.)

         Dr. 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. (Id.)

         On 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.)

         From 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.)

         Gullas 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 treatment.” (Id.)

         On 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.” (Id.)

         C. State Agency Reports

         1. Mental Impairments

         On 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.)

         On 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. (Id.)

         Based 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 abilities:

1. Describe the claimant's abilities and limitations in understanding, remembering, and carrying out instructions.
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 tasks.
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 ...

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