IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

LARRY H. HILLS, 

Plaintiff, 

v. 

CAROLYN V. COLVIN, Acting 

Commissioner of the Social Security 

Administration, 

Defendant. 

MCSHANE, Judge: 

Case No. 6:14-cv-01614-CL 

OPINION AND ORDER 

Magistrate Judge Mark D. Clarke filed a Findings and Recommendation (ECF No. 23), 

and the matter is now before this Court. See 28 U.S.C. § 636(b)(l)(B); Fed. R. Civ. P. 72(b). 

Plaintiff filed objections to the report. Accordingly, I have reviewed the record of this case de 

novo. See 28 U.S.C. § 636(b)(l)(c); McDonnell Douglas Co1p. v. Commodore Bus. 1'.1ach., Inc., 

656 F.2d 1309, 1313 (9th Cir. 1981). Judge Clarke's repo1i is adopted in part. This case is 

remanded for fuiiher proceedings. 

DISCUSSION 

The Commissioner objects to two aspects of Judge Clarke's Findings and 

Recommendation. First, the Commissioner objects to Judge Clarke's ruling that the ALJ et1'ed in 

failing to identify specific and legitimate or clear and convincing reasons to reject Dr. Cochran's 

opinion. Second, the Commissioner argues that even if the ALJ ened in this manner, the proper 

remedy in this case is to remand for further proceedings. I analyze each issue in tum. 

1 - OPINION AND ORDER 
I. Dr. Cochran's Opinion 

I disagree with the Connnissioner's objections to Judge Clarke's ruling that the ALJ 

failed to identify specific and legitimate or clear and convincing reasons to reject Dr. Cochran's 

opinion. 

An ALJ may not reject the opinion of a physician that is contradicted by another 

physician without providing specific and legitimate reasons supported by substantial evidence in 

the record. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). A non-examining 

physician's opinion "cannot by itself constitute substantial evidence that justified the rejection of 

the opinion of either an examining physician or a treating physician." Lester v. Chat er, 81 F.3d 

821, 831 (9th Cir. 1995), as amended (Apr. 9, 1996). When an ALJ's interpretation of the 

evidence is rational, this Comt "must uphold the ALJ's decision where the evidence is 

susceptible to more than one rational interpretation." Burch v. Barnhart, 400 F.3d 676, 680-81 

(9th Cir. 2005), citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). 

Dr. Cochran conducted six hours of interviews and tests upon Plaintiff. During this time, 

Dr. Cochran administered the Test of Memory Malingering, the Wechsler Adult Intelligence 

Scale-Revised, the Minnesota Multiphasic Personality Inventory-2, the Neurobehavioral 

Cognitive Screening Examination, and the Millon Clinical Multiaxial Inventory-II. Dr. 

Cochran's medical opinion was also consistent with the opinions of Mr. Wade and Ms. Thiel. I 

agree with Judge Clarke that "the determination to accept Dr. Deitlein and reject Dr. Coc!uan is 

not suppmted by specific and legitimate reasons supported by substantial evidence." Findings 

and Reconnnendation, 20, ECF No. 23. 

2 - OPINION AND ORDER 
II. Remand for Further Proceedings 

The Commissioner next argues that, even ifthe ALJ did err in his evaluation of Dr. 

Cochran's opinion, the proper remedy in this case is to remand for further proceedings, rather 

than remand for award of benefits. I agree. 

A district court has authority to reverse the decision of the Commissioner of Social 

Security, with or without remanding the cause for a rehearing, Treichler v. Comm 'r of Soc. Sec. 

Admin., 775 F.3d 1090, 1099 (9th Cir. 2014), citing 42 U.S.C §405(g), but "except in rare 

circumstances" the proper course is to remand to the agency for additional investigation or 

explanation. Id. (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S. Ct. 1598, 

84 L. Ed. 2d 643 (1985)). 

Before a case can be remanded with instructions to award benefits, three requirements 

must be met: "(1) the record has been fully developed and further administrative proceedings 

would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for 

rejecting evidence, whether claimant testimony or medical opinion; and (3) ifthe improperly 

discredited evidence were credited as true, the ALJ would be required to find the claimant 

disabled on remand." Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). In the Ninth 

Circuit, the credit-as-true doctrine is "settled" and binding on this Court. Id. at 999. The creditas-true doctrine envisions "some flexibility." Connet v. Barnhart, 340 F.3d 871, 876 (9th Cir. 

2003). Ordinarily, if all three elements are satisfied, a district court must remand for a calculation 

of awards and benefits. Garrison, 759 F.3d 1020. When, however, "an evaluation of the record 

as a whole creates serious doubt that a claimant is, in fact, disabled," the district court retains the 

"flexibility" to remand for further proceedings even when these elements are satisfied. Id. at 

1021; See also Burrell v. Colvin, 77 F.3d 1133, 1141 (9th Cir. 2014) (remanding for further 

3 - OPINION AND ORDER 
proceedings without analyzing whether the three factors are met "because, even assuming that 

they are, we conclude that the record as a whole creates serious doubt as to whether Claimant is, 

in fact, disabled."). 

I need not detem1ine whether the three preliminary requirements have or have not been 

satisfied, as the record in this case, while supporting a finding of disability, also contains serious 

doubts as to whether Plaintiff is, in fact, disabled. See Burrell v. Colvin, 775 F.3d 113, 1141--42 

(9th Cir. 2014) ("Viewing the record as a whole, we conclude that Claimant may be disabled. 

But, because the record also contains cause for serious doubt, we remand with instrnctions that 

the district court remand to the ALJ for further proceedings on an open record."). Dr. Dietlein, 

Plaintiffs examining physician, opined that Plaintiff can understand and remember simple and 

complex instructions. Contrarily, Ms. Thiel, Plaintiffs case manager and therapist, stated he is 

unable to work due to problems with memory, completing tasks, concentration, and following 

instructions. This direct contradiction between two credited sources creates doubt. Moreover, the 

ALJ dete1mined Plaintiffs credibility was undermined solely due to his previous criminal 

histmy, and the ALJ failed to provide any explanation as to why that history inherently detracts 

from Plaintiffs credibility. Finally, Plaintiff delivers marijuana to a young woman on a weekly 

basis, and he rides a bus in order to make that delive1y. The probative value that should be 

assigned to Plaintiffs ability to ride a bus and follow a bus route is unclear as it relates to 

Plaintiffs memory and cognitive functioning, but nonetheless creates fmiher doubt as to whether 

Plaintiff is, in fact, disabled. 

I II 

II I 

II I 

4 - OPINION AND ORDER 
CONCLUSION 

In light of the foregoing, Judge Clarke's Findings and Recommendation (ECF No. 23) is 

ADOPTED in patt and this case is remanded for further proceedings. 

IT IS SO ORDERED. 

Dated this 1:> day of February, 2016. 

5 - OPINION AND ORDER 

Michael J. McShane 

United States District Judge