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Plane v. Colvin

United States District Court, Northern District of Illinois, Eastern Division

December 15, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.


Young B. Kim, United Magistrate Judge.

Jermaine Plane claims that he is disabled from complications stemming from a gunshot wound to his abdomen. According to Plane, he experiences severe and debilitating abdominal pain on an intermittent basis, rendering him unemployable. On September 22, 2010, Plane filed an application for supplemental security income (“SSI”) alleging a disability onset date of November 7, 2006. See 42 U.S.C. §§ 416(i), 1382(c). Because the Appeals Council declined to review an administrative law judge’s (“ALJ”) decision denying Plane’s application, Plane brings this action seeking judicial review in federal district court. See 42 U.S.C. § 405(g). Before the court are the parties’ cross motions for summary judgment. For the following reasons, Plane’s motion is granted, the government’s is denied, and the case is remanded for further proceedings consistent with this opinion:

Procedural History

Plane applied for SSI benefits in September 2010, claiming a disability onset date of November 6, 2006. (Administrative Record (“A.R.”) 117.) His application was denied on November 16, 2010, and was denied upon reconsideration on December 30, 2010. (Id. 65-68, 71-73.) Subsequently, Plane requested and received a hearing before an ALJ. (Id. 75-79.) The ALJ held a hearing on August 24, 2011, (id. at 96-104), and held a supplemental hearing requested by Plane on November 30, 2011, (id. at 107-115). Following the hearings, the ALJ issued a decision finding that Plane is not disabled. (Id. at 6-19.) The Appeals Council declined review, (id. at 1-3), rendering the ALJ’s decision the final decision of the Commissioner. See Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir. 2013). Plane initiated this lawsuit on May 23, 2013, seeking judicial review. (R. 1, Compl.); see 42 U.S.C. § 405(g). The parties consented to this court’s jurisdiction. (R. 6); see 28 U.S.C. § 636(c).


On June 6, 2010, a bullet struck Plane, entering his abdomen and pelvic cavity. Surgeons performed an emergency exploratory laparotomy and resected part of Plane’s intestine to treat the bullet wound, but were not able to remove all of the bullet fragments. One week after he was shot, and on the same day he was released, Plane returned to the emergency room with bouts of intense abdominal pain, nausea, and vomiting. Ever since, according to Plane, the pain has been intermittent but debilitating, occurring multiple times per week, lasting for days, and has prevented him from eating and holding down his jobs. When the pain becomes especially bad, Plane visits the emergency room where he often receives intravenous pain medication and fluids. Although he has been instructed to follow up with physicians elsewhere for care, Plane does not have insurance and says he is financially unable to do so. According to Plane, he cannot afford private medical care and seeks all of his medical treatment at the emergency room. Plane testified pro se at both of his hearings.

A. Medical Evidence

Plane’s relevant medical history begins with his gunshot wound on June 6, 2010. (A.R. 247.) Since the surgery to treat his gunshot wound, Plane sought treatment in the emergency room at least eight times between June 2006 and May 2011. However, the record does not contain any medical records from November 2006 through April 2009. Seven of Plane’s eight documented emergency room visits occurred between May 2009 and May 2011. (Id. at 184, 204, 214, 222, 262, 278, 304.) On June 13, 2006, the same day he was released from the hospital after the shooting, Plane sought treatment from the emergency room at Loyola University Health System (“Loyola”) in Maywood, Illinois. (Id. at 248.) Plane reported vomiting a black substance that smelled like fecal matter. (Id.) Based on the discovery of several mildly dilated loops of small bowel in his upper abdomen, physicians diagnosed Plane with a bowel obstruction and abdominal pain. (Id. at 247, 251.)

Although several intervening emergency room visits are referenced in Plane’s medical records, (id. at 255-58), in addition to a 2007 operation to remove a small bowel obstruction, (id. at 180), documentation from visits between July 2006 and May 2009 are absent from the administrative record. Plane’s next documented visit to the emergency room was on May 31, 2009. (Id. at 304.) On that date, Plane arrived at Rush-Copley Medical Center (“Rush”) in a wheelchair complaining of abdominal pain radiating to his penis and difficulty urinating. (Id. at 308-10.) Plane was treated and then discharged and referred to a primary care physician. (Id. at 313.)

On January 4, 2010, Plane returned to the emergency room at Loyola and described his pain as an “8” on a scale from 1 to 10 but informed the hospital staff that his pain was increasing in intensity. (Id. at 223.) Upon discharge, Plane was instructed to visit Loyola’s general medicine clinic for a follow-up appointment. Without having visited the general medicine clinic, Plane was back in the emergency room on July 7, 2010, with another 8-level pain in his abdomen. Medical imaging from this visit revealed a stable dilated small bowel loop in the lower abdomen and a prominent but nonspecific nondilated proximal small bowel loop. (Id. at 218.) Three weeks later, on July 22nd, Plane sought non-emergency follow-up treatment from a general medicine physician at Loyola who referred him to general surgery for a potential operation to correct intestinal adhesions that could be the cause of his pain. (Id. at 180–83.) Whether Plane followed up with this referral is unknown.

On August 14, 2010, Plane was back in the emergency room─this time handcuffed to his bed and under police escort─complaining of abdominal pain. Treating physicians determined that Plane had chronic but stable symptoms, gave him pain medication, and discharged him with a diagnosis of abdominal pain. (Id. at 189–201.) Just over a month later, on September 21, 2010, Plane was back in an emergency room seeking treatment for abdominal pain. (Id. at 184.) Sometime after his triage consultation, Plane became upset with the length of his wait and left without treatment. (Id. at 184–85.)

The records from Plane’s March 29, 2011 trip to the Loyola emergency room note that Plane underwent a bullet extraction surgery on March 4, 2011, but the details of that surgery are absent from the record. (Id. at 262.) During his visit on March 29th, Plane reported acute abdominal pain and nausea. (Id. at 262–64.) Testing revealed dilated loops of small bowel in Plane’s lower abdomen that were “suspicious for a small bowel obstruction.” (Id. at 265.) Plane was referred to general surgery for evaluation, but the record lacks any documentation as to whether Plane followed up with the hospital’s general surgery department.

Finally, on May 27, 2011, a few months prior to his initial hearing before the ALJ, Plane arrived at the Rush emergency room by ambulance and reported intense abdominal pain. (Id. at 278–80.) A CT scan of Plane’s abdomen revealed, among other things, a “likely chronic partial obstruction / stricture.” (Id. at 290.) Plane was discharged with instructions to follow up with surgeons at Loyola and to bring the imaging from his CT scan with him. (Id. at 291.) The record does not provide any indication that Plane followed up with any surgeons at Loyola as instructed.

The administrative record indicates three medical assessments of Plane, none of which was conducted by physical examination. Two of the medical assessments are pre-hearing assessments. On November 9, 2010, Dr. Reynaldo Gotanco completed a Residual Functional Capacity Assessment (“RFC”) for Plane. (A.R. 235.) According to Dr. Gotanco’s RFC, Plane’s physical condition limited his ability to lift occasionally to 20 pounds and frequently to 10 pounds. (Id. at 236.) The RFC did not impose any other limitations. (Id. at 238.) Ultimately, Dr. Gotanco concluded that Plane’s statements about his symptoms were “consistent with impairment and evidence and are considered credible.” (Id. at 240.) On December 29, 2010, Dr. Bharati Jhaveri issued a report for Disability Determination Services (“DDS”) affirming the initial determination by Dr. Gotanco. (Id. at 243–44.)

On September 14, 2011, a month and a half after Plane’s first hearing before the ALJ, the ALJ sought an independent medical opinion from Dr. Laura Rosch through a medical interrogatory. On October 1, 2011, Dr. Rosch opined that Plane’s impairments did not meet or equal any impairment described in the ...

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