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Patel v. Colvin

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

August 10, 2016

NEEYA A. PATEL, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



         Plaintiff, Neeya Patel, seeks reversal and remand of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for Disability Insurance Benefits (doc. # 17). The Commissioner responded seeking affirmance of the decision (doc. # 24). For the following reasons, we deny Ms. Patel's motion and affirm the Commissioner's decision.


         Ms. Patel applied for benefits on September 16, 2011, nearly 10 years after Ms. Patel alleges she became disabled on October 1, 2001 (R. 132). It is undisputed that her date last insured ("DLI") was March 31, 2005 (R. 32, 38). On November 28, 2012, after her application was denied initially and upon reconsideration, Ms. Patel -- who was represented by counsel --participated in a hearing before an Administrative Law Judge ("ALJ"). After receiving testimony from Ms. Patel and her husband, the ALJ postponed the remainder of the hearing to give Ms. Patel additional time to obtain documents from the period between the alleged onset date and the DLI (R. 129-30). On May 23, 2013, the ALJ held a supplemental hearing in the case, receiving testimony from a vocational expert ("VE") and a medical expert ("ME"), as well as additional testimony from Ms. Patel. On August 23, 2013, the ALJ issued a written decision denying Ms. Patel benefits. The Appeals Council denied review, making the ALJ's decision as the final word of the Commissioner. Engstrand v. Colvin, 788 F.3d 655, 660 (7th Cir. 2015).


         The medical record begins in 1996. In February of that year, Dr. Asok Ray performed surgery on Ms. Patel's right knee to relieve pain, stiffness and weakness (R. 836). Although Ms. Patel's knee was 75 percent better by May 1996, she told Dr. Ray that she had back pain, and despite good range of motion ("ROM") in her lumobsacral (lower) spine, her straight leg raise was limited on the right and left to 80 and 90 degrees, respectively, and an X-ray of her lumbosacral spine revealed a lumbosacral sprain (R. 835). In January 1997, Ms. Patel complained of severe low back pain radiating to her right buttock, hip, thigh and calf, and Dr. Ray gave her a local injection of cortisone over her posterior hip (R. 834). Dr. Ray recommended "conservative treatment, " including bed rest, Aleve, and Xanax (Id.).

         In December 1999 and January 2000, late in her first pregnancy, Ms. Patel again complained of pain in her low back and right knee (R. 833). Dr. Ray noted that her back pain developed from the onset of her pregnancy (Id.). He observed that Ms. Patel had severe muscle spasm, mostly on the right paraspinal area, and local tenderness over her entire lumbar musculature (Id.). In December 1999, he gave her a small injection of cortisone in three tender areas (Id.).[2] Eventually, Ms. Patel went on bed rest from her job in customer service, and she has not worked since (R. 109). Ms. Patel's first child was born in February 2000.

         On April 5, 2000, Ms. Patel had an MRI of her lumbar spine (R. 527). That MRI showed degenerative disc disease at ¶ 5-S1 level, a bulging disc (about 4 mm protrusion) and foraminal encroachment (also called spinal stenosis, which is a narrowing of the open spaces within the spine, which can put pressure on the spinal cord) (Id.).[3] An MRI on May 29, 2001, showed that the disc protrusion had increased slightly to 5 mm, with associated mild to moderate central canal stenosis at the L5-S1 level (R. 528).[4]

         Despite Ms. Patel's allegation of a disability onset date of October 1, 2001, the next medical record is a March 12, 2003, report from Dr. Ray. On that date, Ms. Patel complained that lifting her 38 pound child had caused her to have severe low back pain and stiffness, as well as pain in her right buttock, leg and thigh, on and off for the previous six weeks (R. 832).[5] Dr. Ray noted severe muscle spasm, stiffness and tenderness over the lumbosacral spine, specifically over L5/S1, pain and tenderness over her right hip, and limited straight leg raise (60 degrees on the right and 75 degrees on the left) (Id.). Dr. Ray treated Ms. Patel with a cortisone injection over the tender area in her right hip and L5/S1 (Id.). He prescribed a nonsteroidal anti-inflammatory drug ("NSAID") for inflammation and pain, Ultracet (a narcotic for moderate to severe pain), a lumbosacral corset, and physical therapy (Id.).

         Ms. Patel returned to Dr. Ray on September 29, 2003 (R. 831). She complained of severe muscle spasm and pain in her back and right buttock from carrying her child (Id.). On examination, Dr. Ray noted that her lumbosacral spine had good ROM, but she had severe muscle spasm and tenderness over her right sacroiliac joint (pelvic area) and limited straight leg raise (75 degrees on the right and 90 degrees on the left) (Id.). Dr. Ray diagnosed Ms. Patel with myofasciitis (chronic pain) with trigger points in the right sacroiliac area. He treated her with an cortisone injection and prescribed Norco for nighttime pain (Id.). Ms. Patel's neurological examination was "unremarkable" (Id.).

         Ms. Patel had no other medical treatment before her DLI of March 31, 2005. On August 23, 2005, Ms. Patel's obstetrician prescribed physical therapy to address her complaints of pain in pregnancy (R. 828). She began physical therapy in September 2005, when she was 18 weeks pregnant with her second child, and attended ten to fifteen appointments through November 8, 2005 (R. 813, 819). Ms. Patel was initially assessed with pain in her lower back and pelvis radiating down her right leg, decreased ROM in her lower spine and pelvis, decreased strength in her bilateral hip flexors, and impaired gait (R. 815). By November 8, 2005, the physical therapy notes indicated that Ms. Patel was still extremely sensitive to touch in the lower spine with visible spasm in the surrounding muscles (R. 813). Ms. Patel gave birth to her second child in February 2006.

         On June 1, 2006, Ms. Patel visited Dr. Ray, complaining of muscle spasm in her entire spine and pain in her right knee and left shoulder, which she reported stemmed from lifting her three-month old baby (R. 831). Dr. Ray reviewed Ms. Patel's "old x-ray, " and opined that she had disc herniation from before (Id.), On examination, Ms. Patel had significant pain and tenderness, as well as muscle spasm in her left shoulder area and along her entire spine (Id.). Dr. Ray injected her with Cortisone in the left shoulder area, and prescribed ice and physical therapy (Id.). He also noted severe cartilage damage to her right knee, and wrote that he "want[ed] to re- examine [it] again at a later time" (Id.). Ms. Patel's neurological exam was again "unremarkable" (Id.).

         On October 11, 2006, Ms. Patel had an MRI of her lumbar spine while she was visiting India (R. 529). The MRI showed straightening of her lumbar spine, lateral and far lateral disc protrusion at the L4-5 level, and "significant[] narrowing" of the left sided neural foramen (spinal nerve) at that level (Id.). The remaining findings were normal (Id.).[6]

         Nearly five years later, in September 2011, Ms. Patel filed for disability benefits. On November 8, 2011, a non-examining state agency consultant determined that there was not enough evidence prior to Ms. Patel's DLI to determine whether she was disabled (R, 412). This opinion was affirmed on reconsideration (R. 416-17).

         On November 21, 2011, Dr. Ray completed a "Fibromyalgia Residual Functional Capacity Questionnaire" for Ms. Patel (R. 493), Using checkmarks, Dr. Ray indicated that Ms. Patel met the criteria for fibromyalgia and that her impairments lasted or will last at least 12 months. He also indicated by checkmarks that she had the following symptoms: multiple tender points, nonrestorative sleep, severe fatigue, morning stiffness, subjective swelling, dizziness, numbness and tingling, and impaired concentration, as well as pain in her lumbosacral spine, cervical spine, and bilateral shoulders, arms, hands/fingers, hips, legs, and knees/ankles/feet (Id.). Dr. Ray wrote that Ms. Patel "cannot work due to all conditions medical, " and checked that she would be absent more than three times a month and would need to lie down at unpredictable intervals at work (R. 494). On November 21, 2012, Dr. Ray wrote a letter stating that his answers on the fibromyalgia questionnaire from the prior year applied to the period prior to March 31, 2005 (R. 811).

         On November 25, 2012, Ms. Patel's attorney obtained an opinion from Julian Freeman, a doctor of internal medicine and neurology, based on his review of Ms. Patel's file. Dr. Freeman reviewed Ms. Patel's reports of severe back pain as well as the MRIs in the record. He stated that the presence of foraminal stenosis, due to disc protrusion and central stenosis at ¶ 4 and ''fairly severely" at ¶ 5-S1, was seen in the 2000, 2001 and 2006 MRIs (R. 803-04).[7] Dr. Freeman stated that there was no medical data of pseudoclaudication (inflammation of the nerves emanating from the spinal cord) and no mention of walking limitations beyond Ms. Patel's description that she was limited to walking about half a block (R. 805). In addition, Dr. Freeman could not confirm a diagnosis of fibromyalgia because it was unclear from the data whether Ms. Patel's pain was due to fibromyalgia or an underlying inflammatory disorder (Id.).

         Dr. Freeman concluded that Listing 1.04C was met since at least October 2001, based on the "severity of changes" shown in the April 2000 MRI, the "marked worsening" of "spinal stenosis with fairly severe nerve root impingement" seen in the May 2001 MRI, [8] and Ms. Patel's complaints of severe back pain (R. 805).[9] Dr. Freeman opined that from October 2001, Ms. Patel's spinal stenosis would have "resultant limitations on walking, standing, sitting, and postural changes, " and she would "at best" be capable of: "walking and standing an hour a day in brief divided periods not exceeding a few minutes, of not more than half a block in distance at reduced pace[;] sitting 4-5 hours a day; lifting, carrying, pushing, pulling 10 lbs very rarely, no weight frequently, and 1-2 lbs occasionally[; and] rare (far less than occasional) postural changes of all types with almost no bending" (R. 805-06). He also noted that Ms. Patel's ability to travel to and from India occasionally was within the above functional capacity (Id.).


         Ms. Patel and her husband testified at the first hearing in this case, on November 28, 2012. Ms. Patel testified that she had mostly lower, but also upper back pain, which was "shooting, throbbing" as well as aching, and went down her legs, worse on the right side (R. 98, 116). In answer to the ALJ's question as to why she had so few medical records from the time period between her alleged onset date in 2001 and DLI in 2005, Ms. Patel responded that her medical records were hard to track down because her providers changed when her insurance changed, which it did often since her husband changed jobs a few times (R. 99).

         Ms. Patel testified that between her alleged onset date and DLI, her back pain was so bad two to three days a week that she would lie down most of the day because she could not stand more than 20 minutes or sit for more than an hour to an hour and half (R. 102, 119). On a good day, she could do "normal" things like preparing meals (while taking breaks), but her husband and her brother helped with the kids and doing laundry (R. 105, 120). Ms. Patel did not make beds, vacuum, dust, mop, or sweep, and she could not bend or stoop, so sometimes her husband put her pants on for her, though she could load the dishwasher (R. 103-06, 117-18). She grocery shopped but her husband carried the bags, and she did minimal driving due to her right leg pain (R. 104-05).

         Ms. Patel's husband, Ketan Patel, testified that before 2005, he had to help her with "everything" (R. 124). When he took her to shopping malls, a wheelchair was "always necessary" because Ms. Patel sometimes fell while walking (R. 124-25). Mr. Patel testified that his wife took several different drugs that relieved her pain but affected her mentally (R. 126). He also testified that he changed jobs every two to three years, so health insurance was "constantly changing, " making it a challenge to get all of Ms. Patel's medical records (Id.). After Mr. Patel's testimony, the ALJ ended the hearing to allow Ms. Patel to obtain records for the "pertinent period at issue" (R. 129).


         On May 23, 2013, the ALJ held a second hearing. Ms. Patel's attorney stated that he tried to obtain all documents that were missing and essential to the case, specifically mentioning Ms. Patel's physical therapy records (Ex. 26F) and additional records from Dr. Ray (Ex. 27F) (R. 48-49).[10]

         An ME, Arthur Lorber, a board-certified orthopedic surgeon, testified by telephone based on his review of the record. Dr. Lorber testified that during the period between the alleged onset date and DLI, there was evidence that Ms. Patel had degenerative disc disease, spasms, and pain in the lumbar spine, but there was no evidence of lumbar radiculopathy, lumbar central spinal canal stenosis, neurologic deficit, fibromyalgia, or claudication (pain caused by too little blood flow) (R. 54-57).[11]He concluded that Ms. Patel's impairments did not rise to Listing level during this time period, and that she had the residual functional capacity ("RFC") to do a range of light work (occasionally lift 20 pounds and frequently 10 pounds), but was limited to standing and/or walking two hours per day, 30 minutes at a time, and sitting six hours per day, one hour at a time, in between which she could stand or move about her workstation for a minute or two (R. 56, 58). In addition, Ms. Patel could occasionally crouch and stoop, operate foot pedals, and ascend/descend chairs or ramps, but she could not kneel, crawl, or climb ladders, scaffolds, or ropes (R. 58).

         Dr. Lorber stated that no radiologist diagnosed Ms. Patel with spinal stenosis (R, 56). After the ALJ's examination, Ms. Patel's attorney directed Dr. Lorber to look at the language in the May 2001 MRI reporting mild to moderate central canal stenosis (R. 59). Dr. Lorber acknowledged the findings in the MRI, but he opined that Listing 1.04C was not met based on the clinical findings (R. 59-60, 66-67). Dr. Lorber explained that the diagnosis of stenosis on imaging studies must correlate with clinical findings, but the clinical findings here did not correlate with the imaging studies (R. 66-67). In support of this opinion, Dr. Lorber relied on the reports of Dr. Ray from that time period, which diagnosed lumbar radiculopathy but not central spinal canal stenosis, as well as Ms. Patel's description of her symptomology, which did not show neurogenic claudication as required by 1.04C (Id.). Moreover, Dr. Lorber noted that Ms. Patel's complaints of back pain in 2000 (prior to the alleged onset date) while she was pregnant with her first child were "not particularly unusual, " and that Ms. Patel sought physical therapy from September to November 2005 (after the DLI) because she was having problems associated with her second pregnancy (R. 53, 55-56).

         The ALJ asked the VE what jobs would be available for an individual with the RFC given by Dr. Lorber (R. 77-78). The VE responded that Ms. Patel's past relevant work as a doctor's office clerk would be available as often performed, but not at the fast pace that Ms. Patel previously performed it (R. 79-80). In addition, the individual could perform work as an address clerk, account clerk, and telephone clerk (R. 80-81). If pain limited the individual to three-to-four step, simple, repeated and routine tasks, Ms. Patel's past work would be precluded because it was semi-skilled, but account and telephone clerk positions would be available at the unskilled level (R. 81). If the individual had to miss more than one day of work per month or was off-task more than 15 percent of the workday, no positions would be available (R. 82).

         Ms. Patel then testified again, stating that during the relevant time period, her symptoms in her lower back and right side were sometimes so severe that she could not move forward or backward, but she did not have many symptoms on her left side (R. 85-86). Following that testimony, in response to questioning by Ms. Patel's attorney, the VE testified that under Dr. Freeman's RFC - which Ms. Patel's attorney described as allowing walking and standing one hour a day and sitting four to five hours a day - an individual could not, by definition, be able to perform full-time work at eight-hours per day (R. 88-89).


         On August 27, 2013, the ALJ issued a written decision finding that Ms. Patel was not disabled between her alleged onset date of October 1, 2001, and her DLI of March 31, 2005 (R. 30). At Step 1, the ALJ found that Ms. Patel had not engaged in substantial gainful activity during this time period (R. 32). At Step 2, the ALJ determined that Ms. Patel had severe impairments of degenerative disc disease with mild to moderate stenosis of the lumbar spine, and a history of arthroscopic surgery on the right knee in 1996 (R. 32). The ALJ noted that after surgery in early 1996, Dr. Ray noted that Ms. Patel "did well, " though she continued to complain of intermittent periods of severe low back pain radiating into her buttocks and right leg, at times exacerbated by lifting her children (R, 32-33). The ALJ reviewed the April 2000, May 2001, and October 2006 MRIs of Ms. Patel's lumbar spine, as well as Dr. Ray's notes during that period, which showed Ms. Patel's straight leg raise was positive for pain, though her reflexes, motor strength and sensation were unremarkable (R. 33). The ALJ noted that Dr. Ray gave Ms. Patel injections and prescribed medications, physical therapy, and the use of a lumbosacral corset for her pain (Id.).

         The ALJ concluded that Ms. Patel did not suffer from an autoimmune disorder or fibromyalgia (R. 33). The ALJ explained that neither Dr. Freeman nor Dr. Lorber found evidence in the medical record to support a diagnosis of those impairments on or before the DLI (Id.), The ALJ noted that Dr. Freeman admitted that there were discrepancies between his report and the medical record (no evidence of positive trigger point testing), and that the diagnosis of fibromyalgia was very difficult to confirm with the available data (Id.). The ALJ found that Ms. Patel's other impairments -- endometriosis, vascular headaches, positional vertigo, ...

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