United States District Court, N.D. Illinois, Eastern Division
NEEYA A. PATEL, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER 
I. SCHENKIER, UNITED STATES MAGISTRATE JUDGE
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.
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).
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.).
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.). 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
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.). 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).
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). 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
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
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.
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
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.).
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).
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).
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). 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.).
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,  and Ms.
Patel's complaints of severe back pain (R.
805). 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.).
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).
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).
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).
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.
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).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).
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).
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).
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).
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.).
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