UNITED STATES DISTRICT COURT

EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

CRAIG W. PADLO,

Plaintiff, Civil Action No. 15-11130

 Honorable Arthur J. Tarnow

v. Magistrate Judge Elizabeth A. Stafford

 

CAROLYN W. COLVIN, 

Acting Commissioner of 

Social Security,

 

Defendant. 

_____________________________/

REPORT AND RECOMMENDATION ON CROSSMOTIONS FOR SUMMARY JUDGMENT [R. 14, 17]

Plaintiff Craig W. Padlo appeals a final decision of defendant 

Commissioner of Social Security (“Commissioner”) denying his application 

for disability insurance benefits (“DIB”) under the Social Security Act (the 

“Act”). Both parties have filed summary judgment motions, referred to this 

Court for a Report and Recommendation pursuant to 28 U.S.C. § 

636(b)(1)(B). The Court finds that the administrative law judge’s (“ALJ”) 

decision is supported by substantial evidence, and thus RECOMMENDS

that:

• the Commissioner’s motion [R. 17] be GRANTED;

• Padlo’s motion [R. 14] be DENIED; and

2:15-cv-11130-AJT-EAS Doc # 19 Filed 07/15/16 Pg 1 of 16 Pg ID 362
2

• the Commissioner’s decision be AFFIRMED, pursuant to sentence 

four of 42 U.S.C. § 405(g).

I. BACKGROUND 

A. Padlo’s Background and Disability Application

Padlo was 54 years old when he submitted his application for 

disability benefits in July 2012, alleging a disability onset date of December 

1, 2000. [R. 11-2, Tr. 12]. He later amended is alleged onset date to July 

20, 2004. [Id.; R. 11-5, Tr. 121]. His date last insured is December 31, 

2005. [R. 11-2, Tr. 12; R. 11-6, Tr. 122]. Padlo had previously worked as an 

automotive machinist and a shop supervisor. [R. 11-2, Tr. 20]. He claims 

to be disabled due to degenerative disc disease, a herniated disc, and

depression. [R. 11-2, Tr. 14; 11-6, Tr. 126]. After a hearing, the ALJ 

determined that Padlo was not disabled. [R. 11-2, Tr. 12]. The Appeals 

Council denied review, making the ALJ’s decision the final decision of the 

Commissioner. [Id., Tr. 1-3]. Padlo timely filed for judicial review. [R. 1].

B. The ALJ’s Application of the Disability Framework Analysis

A “disability” is the “inability to engage in any substantial gainful 

activity by reason of any medically determinable physical or mental 

impairment which can be expected to result in death or which has lasted or 

2:15-cv-11130-AJT-EAS Doc # 19 Filed 07/15/16 Pg 2 of 16 Pg ID 363
3

can be expected to last for a continuous period of not less than 12 months.” 

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).

The Commissioner determines whether an applicant is disabled by 

analyzing five sequential steps. First, if the applicant is “doing substantial 

gainful activity,” he or she will be found not disabled. 20 C.F.R. § 

404.1520(a)(4). Second, if the claimant has not had a severe impairment 

or a combination of such impairments1 for a continuous period of at least 

12 months, no disability will be found. Id. Third, if the claimant’s severe 

impairments meet or equal the criteria of an impairment set forth in the 

Commissioner’s Listing of Impairments, the claimant will be found disabled. 

Id. If the fourth step is reached, the Commissioner considers its 

assessment of the claimant’s residual functional capacity, and will find the 

claimant not disabled if he or she can still do past relevant work. Id. At the 

final step, the Commissioner reviews the claimant’s RFC, age, education 

and work experiences, and determines whether the claimant could adjust to 

other work. Id. The claimant bears the burden of proof throughout the first 

four steps, but the burden shifts to the Commissioner if the fifth step is 

 

1 A severe impairment is one that “significantly limits [the claimant’s] 

physical or mental ability to do basic work activities.” § 1520(c).

2:15-cv-11130-AJT-EAS Doc # 19 Filed 07/15/16 Pg 3 of 16 Pg ID 364
4

reached. Preslar v. Sec’y of Health & Human Servs., 14 F.3d 1107, 1110 

(6th Cir. 1994).

Applying this framework, the ALJ concluded that Padlo was not 

disabled. At the first step, he found that Padlo had not engaged in 

substantial gainful activity from his alleged onset date to his date last 

insured. [R. 11-2, Tr. 14]. At the second step, he found that Padlo had the 

severe impairments of “degenerative disc disease of the cervical spine” and 

“depression.” [Id.]. Next, the ALJ concluded that none of his impairments, 

either alone or in combination, met or medically equaled the severity of a

listed impairment. [Id., Tr. 14-15]. In making this determination, the ALJ 

found that Padlo had a mild restriction in activities of daily living, mild 

difficulties in social functioning, and moderate difficulties in maintaining 

concentration, persistence and pace. [Id., Tr. 15].

After the third step, the ALJ found that Padlo had the RFC to perform 

“sedentary work”2 with the following additional limitations: 

[Only] simple repetitive work instructions, no overhead reach or 

 

2 “Sedentary work involves lifting no more than 10 pounds at a time and 

occasionally lifting or carrying articles like docket files, ledgers, and small 

tools. Although a sedentary job is defined as one which involves sitting, a 

certain amount of walking and standing is often necessary in carrying out 

job duties. Jobs are sedentary if walking and standing are required 

occasionally and other sedentary criteria are met.” § 404.1567(b).

2:15-cv-11130-AJT-EAS Doc # 19 Filed 07/15/16 Pg 4 of 16 Pg ID 365
5

lift with either hand, occasional bend, twist turn, climb, crawl, 

sit, squat, kneel, crouch or stoop; no working at heights or 

around moving machinery; and a sit/stand option at will that 

would allow him to remain on task 90% of the time.

[R. 11-2, Tr. 15-16]. At step four, the ALJ found that Padlo could not 

perform past relevant work. [Id., Tr. 20]. With the assistance of vocational 

expert (“VE”) testimony [see id., Tr. 45-49], the ALJ determined at step five 

that based on Padlo’s age, education, work experience and RFC, he could 

perform the positions of office clerk, surveillance systems monitor, and 

information clerk, of which significant jobs existed in the economy. [Id., Tr. 

21]. 

II. ANALYSIS

Pursuant to § 405(g), this Court’s review is limited to determining 

whether the Commissioner’s decision is supported by substantial evidence 

and was made in conformity with proper legal standards. Gentry v. Comm’r 

of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014). Substantial evidence is 

“more than a scintilla of evidence but less than a preponderance; it is such 

relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 

(6th Cir. 2007) (internal quotation marks and citation omitted). Only the 

evidence in the record below may be considered when determining 

2:15-cv-11130-AJT-EAS Doc # 19 Filed 07/15/16 Pg 5 of 16 Pg ID 366
6

whether the ALJ’s decision is supported by substantial evidence. Bass v. 

McMahon, 499 F.3d 506, 513 (6th Cir. 2007). 

The significant deference accorded the Commissioner’s decision is 

conditioned on the ALJ’s adherence to governing standards. “Chief among 

these is the rule that the ALJ must consider all evidence in the record when 

making a determination, including all objective medical evidence, medical 

signs, and laboratory findings.” Gentry, 741 F.3d at 723. See also Rogers, 

486 F.3d at 249. In other words, substantial evidence cannot be based 

upon fragments of the evidence, and “must take into account whatever in 

the record fairly detracts from its weight.” Garner v. Heckler, 745 F.2d 383, 

388 (6th Cir. 1984) (internal quotation marks and citation omitted). 

The Commissioner must also adhere to its own procedures, but failure 

to do so constitutes only harmless error unless the claimant has been 

prejudiced or deprived of substantial rights. Rabbers v. Comm’r of Soc. 

Sec., 582 F.3d 647, 654 (6th Cir. 2009). An ALJ’s failure to use an 

“adjudicatory tool” that does not change the outcome of the decision is 

harmless. Id. at 655-56. On the other hand, substantial errors like ignoring 

evidence in the record or failing to follow the treating physician rule are not 

harmless. Id.; Cole v. Astrue, 661 F.3d 931, 940 (6th Cir. 2011); Gentry, 741 

2:15-cv-11130-AJT-EAS Doc # 19 Filed 07/15/16 Pg 6 of 16 Pg ID 367
7

F.3d at 729. 

Padlo argues that the ALJ failed to incorporate his moderate limitations 

in maintaining concentration, persistence, or pace into the RFC; that the 

treating physician rule was violated; and that the RFC was not based on a 

medical opinion, contrary to law. The Commissioner argues that substantial 

evidence in the medical record supports the ALJ’s decision, and that the ALJ 

properly adhered to all relevant procedures. The Court agrees with the 

Commissioner that the ALJ’s decision should be upheld.

A. The RFC Accurately Reflected Padlo’s Moderate 

Deficiencies of Concentration, Persistence, or Pace

The ALJ found that Padlo had “‘moderate’ deficiencies of 

concentration, persistence or pace in completing tasks in a timely manner.” 

[R. 11-2, Tr. 15]. With this in mind, the ALJ limited Padlo to jobs with 

“simple repetitive work instructions,” in the RFC, [id.], and posed a 

hypothetical to the VE limited to “unskilled jobs.”3 [R. 11-2, Tr. 47]. Padlo 

argues that neither the RFC nor the hypothetical adequately reflect his 

assessed limitations on concentration, persistence, or pace (“CPP”), citing 

 

3 “Unskilled work” reflects the RFC’s restriction of only “simple repetitive 

work instructions.” [R. 11-2, Tr. 15]. See 20 C.F.R. § 404.1568(a).

2:15-cv-11130-AJT-EAS Doc # 19 Filed 07/15/16 Pg 7 of 16 Pg ID 368
8

Edwards v. Barnhart, 383 F.Supp.2d 920 (E.D. Mich. 2005) and Ealy v. 

Comm’r of Soc. Sec., 594 F.3d 504 (6th Cir. 2010). 

“In order for a vocational expert’s testimony in response to a 

hypothetical question to serve as substantial evidence in support of the 

conclusion that a claimant can perform other work, the question must 

accurately portray a claimant's physical and mental impairments.”

Ealy, 594 F.3d at 516. In Edwards, the plaintiff was assessed with a 

moderate limitation in CPP, and the ALJ’s question to the VE limited the 

hypothetical claimant to “jobs entailing no more than simple, routine, 

unskilled work.” 383 F. Supp. 2d at 930. The court found that “[w]hile close, 

these [hypothetical limitations] are not sufficient, and do not fully convey 

Plaintiff's limitations in concentration to the VE.” Id. “Plaintiff may be unable 

to meet quotas, stay alert, or work at a consistent pace, even at a simple, 

unskilled, routine job.” Id.

The Sixth Circuit cited Edwards approvingly in Ealy, where the 

hypothetical posed to the VE was also found to not fully convey the 

plaintiff’s limitations. 594 F.3d at 516-17. There, the ALJ gave the most 

weight to a medical opinion stating that the plaintiff was limited in 

“sustain[ing] attention to complete simple repetitive tasks to ‘[two-hour] 

2:15-cv-11130-AJT-EAS Doc # 19 Filed 07/15/16 Pg 8 of 16 Pg ID 369
9

segments over an eight-hour day where speed was not critical.’” Id. at 516. 

Because the hypothetical omitted these speed- and pace-based 

restrictions, it was found to be inadequate. Id. at 517. 

Though the Edwards and Ealy courts found that moderate CPP 

restrictions must be reflected in the RFC, “there is no bright-line rule 

requiring remand whenever an ALJ's hypothetical includes a limitation of 

‘unskilled work’ but excludes a moderate limitation in concentration. Rather, 

this Court must look at the record as a whole and determine if substantial 

evidence supports the ALJ's RFC.” Schalk v. Comm’r of Soc. Sec., No. 10-

CV-13894, 2011 WL 4406824, at *11 (E.D. Mich. Aug. 30, 2011), report 

and recommendation adopted, 2011 WL 4406332 (E.D. Mich. Sept. 22, 

2011). 

In Smith-Johnson v. Comm’r of Soc. Sec., 579 Fed. Appx. 426, 436-

37 (6th Cir. 2014), the ALJ also found moderate difficulties in CPP, but the 

court distinguished Ealy because the ALJ did not rely on a medical opinion 

limiting the plaintiff’s ability to “maintain attention, concentration, or pace 

when performing simple, repetitive, or routine tasks.” The ALJ had explicitly 

given no weight to a medical statement that the plaintiff’s attention, 

concentration, and memory were weak, and did not adopt that doctor’s 

2:15-cv-11130-AJT-EAS Doc # 19 Filed 07/15/16 Pg 9 of 16 Pg ID 370
10

opinion that a “very low stress environment” was needed, although the RFC 

did reflect some of these concerns. Id. at 437-38.

Ealy is similarly distinguishable here, where there is no medical 

opinion in the record supporting additional restrictions based on his CPP. 

The only medical opinion on Padlo’s mental limitations is from state agency 

physician Thomas T. L. Tsai, M.D., who determined that Padlo had “mild” 

difficulties in CPP in October 2012. [R. 11-3, Tr. 54]. The ALJ gave Dr. 

Tsai’s opinion only partial weight, [R. 11-2, Tr. 20], opining that Padlo’s 

“pain medication could be expected to reduce concentration” and thus 

finding him to have moderate deficiencies of CPP. [Id., Tr. 15]. It is Padlo’s 

burden to prove that he requires a more restrictive mental RFC, Her v. 

Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999); Jordan v. Comm’r 

of Soc. Sec., 548 F.3d 417, 423 (6th Cir. 2008), and his medical records do 

not substantiate that he lacks the capacity for simple, routine and repetitive 

tasks. 

For these reasons, Padlo’s complaint that the RFC did not account 

for his moderate CPP is without merit.

2:15-cv-11130-AJT-EAS Doc # 19 Filed 07/15/16 Pg 10 of 16 Pg ID 371
11

B. The ALJ Did Not Violate the “Treating Physician Rule” or 

Craft an RFC Unsupported by Medical Opinion

The ALJ gave “little weight” to a September 2013 opinion of Padlo’s 

treating physician, Mark Ealovega, M.D., and greater weight to Dr. 

Ealovega’s July 2004 opinion. [R. 11-2, Tr. 20]. Padlo argues that the ALJ 

erred by not giving Dr. Ealovega’s 2013 opinion sufficient weight. 

The “treating physician rule” requires an ALJ to give controlling 

weight to a treating physician’s opinions regarding the nature and severity 

of a claimant’s condition when those opinions are well-supported by 

medically acceptable clinical and diagnostic evidence, and not inconsistent 

with other substantial evidence. 20 C.F.R. § 404.1527(c)(2); Gentry, 741 

F.3d at 723, 727-29; Rogers, 486 F.3d at 242-43. If an ALJ gives less than 

controlling weight to a treating source’s opinion, she must provide “good 

reasons” for doing so that are “supported by the evidence in the case 

record, and ... sufficiently specific to make clear to any subsequent 

reviewers the weight the adjudicator gave to the treating source’s medical 

opinion and the reasons for that weight.” Gayheart v. Comm’r of Soc. Sec., 

710 F.3d 365, 375 (6th Cir. 2013) (quoting 20 C.F.R. § 404.1527(c)(2); 

SSR 96–2p, 1996 WL 374188, at *5 (July 2, 1996)). Courts will not hesitate 

to remand when the ALJ failed to articulate “good reasons” for not fully 

2:15-cv-11130-AJT-EAS Doc # 19 Filed 07/15/16 Pg 11 of 16 Pg ID 372
12

crediting the treating physician's opinion. Wilson v. Comm’r of Soc. Sec., 

378 F.3d 541, 545 (6th Cir. 2004).

In this case, the ALJ gave good reasons for not fully crediting Dr. 

Ealovega’s 2013 opinion. In that opinion, Dr. Ealovega stated that Padlo 

could only work for four hours per day, as he was limited by chronic neck 

pain and fatigue caused by pain medications; that he was incapable of 

performing a “sedentary low stress job” full time; and that he was initially 

disabled on July 20, 2004, and had been continuously disabled since that 

date. [R. 11-7, Tr. 232-33]. The ALJ found this opinion to be inconsistent 

with Dr. Ealovega’s treatment records and medical opinion from the 

relevant time period, reasoning that “[Dr. Ealovega’s] actual office notes for 

the period under consideration notes [sic] the claimant had no side effects 

from medications.” [R. 11-2, Tr. 20]. This observation was accurate. The 

medical record reflects no mention of significant side effects from 

medications during the relevant time period. [R. 11-7, Tr. 203-05, 223]. 

After his date of last insured, Padlo denied having side effects from his 

medication in 2007 and 2009, and only mentioned that hydrocodone 

caused constipation and stress in 2012. [Id., Tr. 139, 217, 221-22]. Despite 

the sparsity of evidence demonstrating medication effects, the ALJ did take 

2:15-cv-11130-AJT-EAS Doc # 19 Filed 07/15/16 Pg 12 of 16 Pg ID 373
13

possible side effects into account when crafting the RFC by limiting Padlo 

to jobs with “simple repetitive work instructions” due to the possibility that 

his concentration would be limited by the medication. [R. 11-2, Tr. 15]. But 

the evidence in the record generally conflicts with Dr. Ealovega’s insistence 

that Padlo would be substantially limited due to the fatigue caused by his 

medications.

The ALJ also noted that Dr. Ealovega’s 2013 opinion conflicts with his 

earlier opinion from July 20, 2004, the alleged onset date of Padlo’s 

disability. [R. 11-2, Tr. 20]. In that opinion, Dr. Ealovega stated that Padlo 

was “improving” since February 2004 “with conservative measures.” [R. 11-

7, Tr. 223]. He found that “work restrictions of light-duty work only including 

no extensive hammering or lifting greater than 10 pounds are appropriate.” 

[Id.]. This conflicts with the later opinion that Padlo could only lift 5 pounds 

and was incapable of even sedentary work. [Id., Tr. 233]. 

Finally, the ALJ found that “[t]here is very little evidence addressing 

the claimant’s allegedly debilitating health concerns prior to the claimant’s 

date last insured,” that he “continued to work for significant periods after 

2:15-cv-11130-AJT-EAS Doc # 19 Filed 07/15/16 Pg 13 of 16 Pg ID 374
14

2004 doing fairly heavy work,”

4 and that the record reflects “significant 

treatment gaps in a history of entirely routine and conservative care.” [R. 

11-2, Tr. 19].

The ALJ gave ample reasons for determining that Dr. Ealovega’s 

2013 opinion was not well-supported by the record, and was inconsistent 

with other evidence, including his own earlier opinion; he did not err in 

affording the 2013 opinion little weight. 

Padlo also argues that the RFC is unsupported by any medical 

opinion, citing Wyatt v. Comm’r of Soc. Sec., 2013 WL 4483074, at *16 

(E.D. Mich. Aug.19, 2007). That is not true; the ALJ gave partial weight to 

the opinions of Dr. Tsai and B.D. Choi, M.D., and some weight to Dr. 

Ealovega’s opinion from 2004. [R. 11-2, Tr. 20]. “The ALJ is charged with 

the responsibility of determining the RFC based on her evaluation of the 

medical and non-medical evidence.” Rudd v. Comm’r of Soc. Sec., 531 

Fed. Appx. 719, 728 (6th Cir. 2013). Requiring the ALJ to strictly base his 

RFC on a medical opinion would be an abdication of this responsibility. Id. 

 

4 The records describe Padlo as having had to do “more and more physical 

labor” in December 2007, and being “in the process of rehabilitating an old 

building and [ ] doing a lot of manual labor on his own including using tools 

a lot,” in October 2011. [R. 11-7, Tr. 213, 221].

2:15-cv-11130-AJT-EAS Doc # 19 Filed 07/15/16 Pg 14 of 16 Pg ID 375
15

(citing SSR 96–5p, 1996 WL 374183 (July 2, 1996)). This argument lacks 

merit.

III. CONCLUSION

For the reasons stated above, the Court RECOMMENDS that the 

Commissioner’s motion [R. 17] be GRANTED; that Padlo’s motion [R. 14] 

be DENIED; and that the Commissioner’s decision be AFFIRMED, 

pursuant to sentence four of 42 U.S.C. § 405(g).

s/Elizabeth A. Stafford

ELIZABETH A. STAFFORD

United States Magistrate Judge

Dated: July 15, 2016

NOTICE TO THE PARTIES REGARDING OBJECTIONS

Either party to this action may object to and seek review of this 

Report and Recommendation, but must act within fourteen days of service 

of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed. R. Civ.

P. 72(b)(2). Failure to file specific objections constitutes a waiver of any 

further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. 

Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 

638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but 

fail to raise others with specificity will not preserve all objections that party 

2:15-cv-11130-AJT-EAS Doc # 19 Filed 07/15/16 Pg 15 of 16 Pg ID 376
16

might have to this Report and Recommendation. Willis v. Secretary of 

HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers 

Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). A copy of any objection 

must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

Recommendation to which it pertains. Not later than fourteen days after 

service of objections, the non-objecting party must file a response to 

the objections, specifically addressing each issue raised in the objections in 

the same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

limitation. If the Court determines that any objections are without merit, it 

may rule without awaiting the response.

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s ECF 

System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on July 15, 2016.

s/Marlena Williams

MARLENA WILLIAMS

Case Manager

2:15-cv-11130-AJT-EAS Doc # 19 Filed 07/15/16 Pg 16 of 16 Pg ID 377