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Higareda v. Colvin

United States District Court, D. Nebraska

October 17, 2016

CAROLYN W. COLVIN, Acting Social Security Commissioner; Defendant.


          Joseph F. Bataillon Senior United States District Judge

         The plaintiff, Carlos Figueroa Higareda, appeals the denial of his application for disability insurance benefits under the Social Security Act, 42 U.S.C. § 405(g). Filing No. 3 (Complaint). On January 31, 2013, Higareda filed his initial application for disability benefits. The Commissioner of the Social Security Administration first denied Higareda's application on March 1, 2013, and again upon reconsideration on March 29, 2013. After a December 13, 2013 hearing before an Administrative Law Judge (“ALJ”), the ALJ issued an unfavorable decision on February 28, 2014 denying Higareda's claim. The Appeals Council for the Social Security Administration denied Higareda's request for review on September 21, 2015. Higareda then filed a complaint before this court. The court finds that the ALJ's determination was not supported by substantial evidence, and reverses the denial of Higareda's claim.

         I. BACKGROUND

         Higareda, born in September 1968, reports that he last worked on December 31, 2008. Filing No. 11-6 at 2, 7 (Disability Report). His highest level of education is the sixth grade in Mexico in 1979. Id. at 8; Filing No. 11-2 at 42 (Transcript of Oral Hearing). Higareda neither speaks nor is literate in English, but he speaks and can read and write in Spanish. Filing No. 11-6 at 6 (Disability Report); Filing No. 11-2 at 75-76 (Transcript of Oral Hearing). He is married with three children--a son and daughter in their twenties, and a toddler. Filing No. 11-7 at 21 (Office Treatment Records). Between May 1987 and June 2008, Higareda worked a series of physical labor jobs, including as a conveyor tender, construction worker, poured pipe maker, ribber, harvest worker, and agricultural produce packer. Filing No. 11-2 at 63-64 (Transcript of Oral Hearing).

         This appeal concerns Higareda's fifth application for Title II period of disability and disability benefits, and also for Title XVI supplemental social security income, and the third application for the same alleged period of disability. Filing No. 11-2 at 17-18 (ALJ Decision). All of his previous applications were denied. Id. Higareda alleges his ability to work is limited by his diagnosed bipolar disorder, psychosis, and epilepsy. Filing No. 11-6 at 7 (Disability Report). He reports that, beginning January 29, 2011, these conditions have caused an inability to focus, forgetfulness, and a wandering mind. Id. at 2; id. at 16 (Function Report). He states that he forgets to do certain things and has a hard time answering questions, which makes him frustrated, anxious, and “stressed out.” Id. at 32 (Disability Report). This anxiety reportedly causes Higareda to need “an increase in medication in order to calm him down.” Id. His medical records reveal that he has also experienced episodes of agitation, anger, paranoia, and depression. E.g., Filing No. 11-7 at 12, 15 (Office Treatment Records); id. at 41 (Progress Notes). Higareda states that “when there's a lot of people around [him], it bothers [him] very much, and it stresses [him].” Filing No. 11-2 at 42 (Transcript of Oral Hearing). He also states that children cause him stress and he gets angry “real fast.” Id. at 43.

         In disability reports completed for the purpose of obtaining disability benefits, Higareda stated he assists in church bible studies (though he does not participate because of difficulty focusing), and that around the home he sweeps, mops, takes trash out, mows the lawn, and gardens. Filing No. 11-6 at 13-14 (Function Report). He also watches his young child and grandchild for two hours at a time twice during the week, watches television for an hour at a time, Id. at 14. Higareda's wife reports that Higareda does not talk much with other people and that he has difficulty maintaining focus. Id. at 19-20 (Third Party Function Report). She noted that she prepares his meals, helps him with grooming, and that she reminds him to take his medication. Id. at 18-19.

         A. Medical History

         Dr. Eva Brion, M.D. at the Lanning Center for Behavioral Services had treated Higareda as his primary physician for eight years at the time of the ALJ hearing. Filing No. 11-7 at 5, 6, 19 (Office Treatment Records). The majority of Higareda's medical history detailed below is taken from Brion's treatment notes. According to the record, Higareda was hospitalized for manic behavior in February 2009, before the alleged onset date. Id. at 5. Higareda was “‘violent', out of control . . . physically and verbally aggressive . . . threaten[ing] to hurt somebody. . . hallucinating and . . . delusional” during this particular episode. Id. He was discharged in March 2009 after “having achieved improvement.” Id.

         On April 8, 2011, Higareda's wife reported that for about three days in March, Higareda was “agitated” and “not sleeping.” Id. at 8. His wife said he “‘acted weird, '” was agitated, and was not sleeping. Id. Higareda's stress “over his wife baby-sitting two young children of their relatives at their house” triggered this episode. Id. His wife gave him an extra dose of Klonopin one night, which “helped him calm down.” Id. Brion noted that during the visit, Higareda would sometimes “laugh inappropriately and then calm down, ” and that his speech was tangential “a few times.” Id. However, Higareda denied having auditory or visual hallucinations, or feeling depressed or homicidal. Id. His thought process was “not disorganized, ” he appeared calm, cooperative, and alert, with fair concentration. Id. Brion opined that while Higareda “had an exacerbation of his bipolar signs and symptoms i.e. labile mood, mostly agitation and some depression, ” he was “able to function to some extent, ” and there was no need to alter his prescribed medications. Id.

         During a follow up visit on June 10, 2011, Higareda said that he was feeling “good, ” with no feelings of depression, anxiety, mood swings, or suicidal or homicidal ideations. Id. At 10. Higareda's wife and son disclosed that Higareda “[was] slow in doing things at home, ” that his verbal responses were slow, and that “he does not know what to do in taking care of the baby.” Id. Brion noted that Higareda “gets irritated when the baby cries” and then “stays in the bedroom.” Id. Higareda reported having “weird dreams” but claimed to be sleeping well, and denied having any delusions or auditory or visual hallucinations. Id. Brion concluded that Higareda was “improving gradually” and advised him to keep taking his medications as prescribed. Id.

         Three months later, on September 14, 2011, Higareda's wife reported two episodes of decompensation. Id. at 12. The first was during a June trip to Disneyland, where Higareda “became very paranoid” because of the crowds. Id. In addition, Higareda became delusional after helping to work on his brother's house for two hours a day. Id. In both cases, his wife gave him 80mg of Geodon twice a day for two days rather than the prescribed 160mg of Geodon at bedtime. Id. Higareda felt a little sedated after this, but better. Id. Higareda then resumed his regular dosage. Id.

         Brion opined that Higareda “does decompensate when he is under a lot of stress.” Id. At the September 14 appointment, Higareda again denied feeling depressed or suicidal, and stated he had no mood swings. Id. He admitted feeling anxious when he is stressed, but said he had been sleeping well and had a good appetite. Id. During the visit, he “appear[ed] verbal, calm, cooperative, and appropriate. . . alert, oriented to all spheres. . . [h]is mood [was] neutral with appropriate affect. . . his thought process [was] not disorganized and he [did] not exhibit florid delusions or auditory and visual hallucinations. . . [h]is concentration [was] fair.” Id. Brion directed Higareda to stay on his medications as prescribed. Id.

         On November 16, 2011, Higareda exhibited paranoia. His wife reported that Higareda had become “paranoid that ‘people and our friends are talking about him.'” Id. at 15. He was apparently stressed by knowing he and his wife would have to visit the Mexican Embassy to obtain visas for a trip. Id. Higareda denied having auditory or visual hallucinations. Id. He said that “he [felt] calm. . . [and did] not feel depressed, suicidal, or homicidal.” Id. He did not report any mood swings or anxiety. Id. He was sleeping well when taking his medication as directed. Id. He appeared neatly groomed, calm, cooperative, alert, and oriented to all spheres. Id. Brion did not alter his medication. Id.

         During a February 8, 2012 visit, Higareda seemed “asymptomatic” and his “overall mental status [had] not changed compared to the last visit [on November 16, 2011].” Id. at 17. Higareda denied feeling paranoid, depressed, suicidal, or homicidal, and he did not experience any anxiety or mood swings. He also denied having any auditory and visual hallucinations. Id. His concentration was fair, and he appeared calm, cooperative, oriented, and neatly groomed. Id. However, his wife reported that every time Higareda goes on vacation with his family, “he gets excited and then later he becomes agitated for no reason; he comes down after I give him an extra dose of Geodon.” Id. Brion concluded that Higareda cannot tolerate noise, “especially when the children make noise.” Id. Because Higareda appeared to be asymptomatic on his current medication, he was directed to continue taking them as prescribed. Id.

         On May 18, 2012, another provider at Lanning Center for Behavioral Services, Erica Ferrell, APRN, conducted a psychiatric evaluation of Higareda. Ferrell concluded that Higareda “remained relatively stable over the last few years” with his medication. Id. at 19. Higareda admitted to being “angrier than usual” and explained it was partially because he and his wife had “been unable to have sexual relations as much as they used to. [They] both agree that this is a great tension reliever for him.” Id. at 20. He denied feeling depressed or irritated, and did not report any significant mood swings. Id. But his wife stated she thought he “gets a little paranoid at times, ” for example, thinking people at a party were talking about him when, in reality, they were not. Id. Higareda did not recognize this as a problem because his paranoia “[was] no worse than it has been over the last year or so.” Id. Higareda denied auditory or visual hallucinations, delusions, or obsessions. Id. His hygiene was “good, ” and his “attention span and concentration [were] adequate.” Id. at 21. The evaluator recommended that Higareda continue on his current medication regimen. Id.

         Four days later on May 22, 2012, Higareda's wife reported that Higareda had “been agitated and easy to anger.” Id. at 25. They were scheduled to leave the next day for a seven week trip to Mexico, which caused Higareda to become more agitated and stressed. Id. In addition, they had recently hosted a party for their son's graduation, which made Higareda “anxious.” Id. His wife reported that Higareda became verbally, but not physically, aggressive. Id. Higareda denied having mood swings, to which “his wife added, ‘he just gets angry easily but he calms down.'” Id. Brion noted that Higareda responded to stress with agitation and began decompensating. She recommended increasing Tegretol and Klonopin and otherwise directed Higareda to continue taking Geodon and Celexa as previously prescribed. Id.

         On July 23, 2012, after returning from Mexico, Higareda's wife reported that Higareda “did well” on the trip. Id. at 27. His wife stated that Higareda “kept himself busy” on the trip by “helping repair their house.” Id. Higareda said he was not stressed or depressed, denied having homicidal or suicidal thinking, and also denied having anxiety or mood swings. Id. Brion concluded that Higareda was “improving” and “advised him to continue taking his medications since he seems to be responding well to the current medication regimen.” Id.

         Similarly, during an October 23, 2012 visit with Brion, Higareda was feeling good, functioning well, doing “the cooking, cleaning. . . [and] laundry” while his wife went back to work for six weeks. Id. Higareda was calm, cooperative, and alert. Id. His thought process seemed organized, his concentration was fair, and Brion noted “no psychosis, nor looseness of association.” Id. Brion further reported that Higareda continued “to improve and function better, ” and advised him to continue taking his current medications as prescribed. Id.

         During a January 21, 2013 appointment with Brion, Higareda's wife reported that while in Mexico from November 2012 to January 2013, Higareda ceased taking his medication and became paranoid and violent. Id. at 33. He had “worked long hours” and “‘tried to choke [his wife]'” after mistakenly believing she was cheating on him. Id. At the time of the appointment, Higareda did “not exhibit[] any signs and symptoms of decompensation. . . although he decompensates fast when he is not consistent with taking his medications and when he is under a lot of stress.” Id. Brion did not make any medication changes because Higareda did not “seem to be decompensating, ” and was “already on good doses of all of his medications.” Id.

         On April 16, 2013, Higareda complained of stress, agitation, anger, mood swings, and an inability to concentrate. Id. at 48 (Progress Notes). He admitted to having “paranoid thoughts that his daughter [was] doing something bad.” Id. The symptoms began when his wife started working two jobs, leaving him to take care of their two-and-a-half-year-old son and two-year-old grandson. Id. Higareda said “he was stressed out and he could not tolerate the noise created by the children.” Id. His wife confirmed he was unable to function. Id. Higareda and his wife decided to place their son and grandson in daycare, which relieved Higareda's stress “somewhat.” Id. Brion opined that Higareda had high anxiety and was “currently decompensating although . . . he started feeling better when relieved of the stress of taking care of his 2 ½ year old son and 2 year old grandson. Historically, [Higareda] does become paranoid and exhibits bipolar signs and symptoms when he is under a lot of stress.” Id. However, because Higareda “start[ed] to improve and ‘calm down'” since deciding to place the children in daycare, Brion did not revise his medication prescriptions. Id.

         During a June 3, 2013 appointment, Higareda's wife reported that his anxiety level “was down” after “he responded . . . quite well” to being prescribed Ativan. Id. at 44. But when his two-and-a-half-year-old son and grandson would cry, he would “get agitated” because he could not “tolerate their crying.” Id. Higareda was also experiencing paranoid thoughts that his married daughter and nineteen-year-old son were having sex, but denied auditory or visual hallucinations. Id. His mood was “somewhat depressed with congruent affect, ” but he had “fair” ...

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