United States District Court, D. Vermont
MEMORANDUM AND ORDER (Docs. 10, 13)
Honorable J. Garvan Murtha United States District Judge
Jon Demeritt (Demeritt) brings this action under 42 U.S.C.
§§ 405(g) and 1383(c)(3) of the Social Security
Act, requesting review and reversal of the Commissioner of
Social Security's (Commissioner) denial of his
application for disability insurance benefits and
supplemental security income. Pending before the Court are
Demeritt's motion seeking an order reversing the
Commissioner's decision (Doc. 10 (Doc. 10-1 Memorandum)),
and the Commissioner's motion seeking an order affirming
her decision (Doc. 13). Demeritt filed a reply. (Doc. 18.)
For the reasons set forth below, Demeritt's motion to
reverse is granted and the Commissioner's motion to
affirm is denied. The matter is remanded for further
proceedings and a new decision.
August 13, 2010, Demeritt filed an application for disability
insurance benefits and supplemental security income, alleging
he became disabled as of June 30, 2009. (A.R. 384-94.) On
October 25, 2010, his applications were denied, id.
at 192-99, and, on April 8, 2011, were denied again on
reconsideration, id. at 204-17. Demeritt filed a
timely request for an administrative hearing, id. at
219-21, which was held by Administrative Law Judge
(“ALJ”) Thomas Merrill on April 13, 2012,
id. at 76-110. Demeritt appeared with an attorney at
the hearing and testified. Id. On May 4, 2012, the
ALJ issued a decision concluding Demeritt was not disabled
from the alleged disability onset date. Id. at
173-82. On July 8, 2013, the Appeals Council vacated the
decision and remanded the case to the ALJ for further
proceedings. Id. at 189-90.
another hearing was held December 9, 2013, at which Demeritt
did not appear though his attorney did, and a vocational
expert testified, id. at 111-19, and a third hearing
was held May 28, 2014, at which Demeritt appeared with an
attorney and testified, id. at 120-42. On July 21,
2014, the ALJ issued a second decision concluding Demeritt
was not disabled. Id. at 27-38. On December 4, 2015,
the Appeals Council denied his timely request for review, and
the ALJ's decision became the final decision of the
Commissioner. Id. at 1-3, 22-23.
February 2016, Demeritt timely filed this action. (Docs.
1-3.) He raises three challenges to the ALJ's decision:
(1) the ALJ erred by failing to find his depression was a
severe impairment; (2) the ALJ erred by failing to properly
consider his obstructive sleep apnea and fatigue; and (3) the
ALJ's step five determination is not supported by
substantial evidence. (Doc. 10-1.)
was born October 12, 1966. (A.R. 80, 384.) He has a high
school education and past relevant work as a carpenter and
construction worker. Id. at 80, 101. In 1985,
Demeritt was injured in a work-related accident, suffering a
crushed left ankle, and, in May 2010, broke the tibia and
fibula on the same leg in a bicycling accident. Id.
at 81, 84, 86, 124-25.
primary care physician was Dr. Jeffrey Rubman. He referred
Demeritt to Dr. Mark Charlson, an orthopedist. In February
2009, Dr. Charlson noted his medications were oxycodone and
percocet and he was alert, oriented, in no acute distress,
with pleasant mood and affect. He diagnosed significant
post-traumatic arthritis of the subtalar joint secondary to
the calcaneous fracture and gave him an ankle brace. In May
2009, Demeritt reported to Dr. Charlson the brace improved
him by about 65% though he still suffered swelling by the end
of the day. Dr. Charlson provided another ankle stabilizer
and a compression stocking to attempt to alleviate
discomfort. (A.R. 705-07.)
2010, when he presented to the hospital after his bicycle
accident, he was described as pleasant, alert, oriented and
in no distress and with normal mood, affect, behavior,
judgment, and thought content. (A.R. 622-24.) On May 7,
Demeritt underwent surgery and a plate and screws were
inserted. Id. at 559. At follow-up with his surgeon
four months after the surgery, Demeritt complained of pain
and was using two crutches, the doctor noted he was alert,
oriented and in no distress and the ankle was healed, and if
the pain continued, he could seek a subtalar fusion.
Id. at 703.
September 2010, Dr. Rubman completed a mental status report
noting Demeritt's appearance and hygiene were normal,
behavior was appropriate, observed affect was mildly
depressed, with no psychotic symptoms or suicidal ideation,
normal orientation, attention, concentration and memory,
energy level was low and ability to relate was good. (A.R.
November, Dr. Rubman assessed possible sleep apnea and noted
Demeritt's daytime fatigue. Id. at 672. In
January 2011, Dr. Rubman referred Demeritt to the Vermont
Medical Sleep Disorders Center where he underwent a sleep
study with Dr. Sabieli Kabeli. The results were
“essentially normal” but it was a
“suboptimal test.” Dr. Kabeli indicated driving
precautions should be exercised at all times. (A.R. 721-22.)
In March 2011, a follow-up sleep study revealed severe
obstructive sleep apnea syndrome. On examination, Demeritt
was alert and oriented with appropriate mood, judgment and
affect and able to ambulate unassisted and sit comfortably on
the table but he had difficulty rising from a chair. Options
for therapy included weight loss, an oral device, positional
therapy, CPAP therapy, and pharyngeal surgery. Id.
at 717-18. In April, he returned for a CPAP titration study.
Dr. Kabeli's impression was dyssomnia, intrinsic sleep
disorder, and obstructive ...