United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge
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.
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).
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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”