Demeritt v. Berryhill

          MEMORANDUM AND ORDER (Docs. 10, 13)

          Honorable J. Garvan Murtha United States District Judge

         I. Introduction

         Plaintiff 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.

         II. Background

         A. Procedural

         On 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.

         Accordingly, 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.

         In 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.)

         B. Medical History^[1]

         Demeritt was born October 12, 1966. (A.R. 80, 384.) He has a high school education^[2] 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.

         Demeritt's 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.)

         In May 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.

         Also in 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. 642.)

         In 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 ...