IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

LARRY L. HILLS, 

Plaintiff, 

v. 

COMMISSIONER, 

SOCIAL SECURITY ADMINISTRATION, 

Defendant. 

MARK D. CLARKE, Magistrate Judge. 

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

REPORT and 

RECOMMENDATION 

Plaintiff Larry L. Hills ("Plaintiff') seeks judicial review of the final decision of the 

Commissioner of the Social Security Administration ("Commissioner") denying his application for 

Disability Insurance Benefits ("DBI") under Title II of the Social Security Act. This court has 

jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c). Because the Commissioner's decision is not 

Page 1 - REPORT and RECOMMENDATION 
;·· 

supported by substantial evidence, it should be REVERSED and REMANDED for the calculation 

and award of benefits. 

BACKGROUND 

Plaintiff was born in 1951, and was 59 years old on the alleged onset date of disability. He 

completed aGED and some college classes . Tr. 44. He has past relevant work as a cook, 

dishwasher, and laborer. Tr. 147 

Plaintiff protectively filed an application for disability insurance on April20 , 2011, alleging 

disability since June 1, 2002, due to "pain, Bipolar, mental health conditions, diabetes." Tr. 247. 

The Commissioner denied his application initially and upon reconsideration. Tr. 101-04, 110-12. 

At Plaintiffs request, a hearing was held before an Administrative Law Judge ("ALJ") on February 

27, 2013. Tr. 33-90. At the hearing Plaintiff amended his onset date to April 7, 2011. Tr. 37. On 

June 13, 2013, the ALJ found Plaintiff not disabled. Tr. 16-27. The Appeals Council denied 

Plaintiffs request for review, making the ALJ' s decision the Commissioner's final decision Tr. 1-4. 

Plaintiff now seeks judicial review of that decision. 

DISABILITY ANALYSIS 

A claimant is disabled ifhe or she is unable to "engage in any substantial gainful activity by 

reason of any medically determinable physical or mental impairment which ... has lasted or can be 

expected to last for a continuous period of not less than 12 months[.]" 42 U.S,C. § 423(d)(l)(A). 

"Social Security Regulations set out a five-step sequential process for determining whether an 

applicant is disabled within the meaning of.the Social Security Act." Keyser v. Comm 'r Soc. Sec. 

· Admin., 648 F .3d 721, 724 (9th Cir. 2011 ); see also 20 C.F .R. § 416.920(SSI); Bowen v. Yuckert, 

Page 2 - REPORT and RECOMMENDATION 
482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4); 

416.920(a)(4). The five-step sequential process asks the following series of questions: 

1. Is the claimantperforming "substantial gainful activity?" 20 C.F.R. 

§§ 404.1520(a)(4)(i); 416.920(a)(4)(I). This activity is work involving 

significant mental or physical duties done or intended to be done for pay 

or profit. 20 C.F.R. §§ 404.1510; 416.910. Ifthe claimant is performing 

such work, she is not disabled within the meaning of the Act. 20 C.F.R. 

§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). Ifthe claimant is not performing 

substantial gainful activity, the analysis proceeds to step two. 

2. Is the claimant's impairment "severe" under the Commissioner~ s 

regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). Unless 

expected to result in death, an impairment is "severe" if it significantly 

limits the claimant's physical or mental ability to do basic work activities. 

20 C.F.R. §§404.1521 (a); 416.921 (a). This impairment must have lasted 

or must be expected to last for a continuous period of at least 12 months. 

20 C.F.R. §§ 404.1509; 416.909. Ifthe claimant does not have a severe 

impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii); 

416.920(a)(4)(ii). Ifthe claimant has a severe impairment, the analysis 

proceeds to step three. 

3. Does the claimant's severe impairment "meet or equal" one or more of the 

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, 

then the claimant is disabled.· 20 C.F.R. §§ 404.1520(a)(4)(iii); 

416.920(a)(4)(iii). If the impairment does not meet or equal one or more of 

the listed impairments, the analysis proceeds beyond step three. At that 

point, the ALJ must evaluate medical and other relevant evidence to assess 

and determine the claimant's "residual functional capacity" ("RFC"). This 

is an assessment of work-related activities that the claimant may still 

perform on a regular and continuing basis, despite any limitations imposed 

by his or her impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c); 

416.920(e); 416.945(b)-(c). After the ALJ determines the claimant's RFC, 

the analysis proceeds to step four. 

4. Can the claimant perform his or her "past relevant work" with this RFC 

assessment? If so, then the claimant is not disabled. 20 C.F.R. 

§§404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant cannot perform 

his or her past relevant work, the analysis proceeds to step five. 

5. Considering the claimant's RFC and age, education, and work experience, 

is the claimant able to make an adjustment to other work that exists in 

Page 3- REPORT and RECOMMENDATION 
significant numbers in the national economy? If so, then the claimant is 

not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v); 404.1560(c); 

416.960(c). Ifthe claimantcannot perform such work, he or she is 

disabled. !d. 

See also Bustamante v. i\1assanari, 262. F.3d 949, 954 (9th Cir. 2001). 

The claimant bears the burden of proof at steps one through four. !d. at 953; see also 

Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The 

Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the 

Commissioner must show that the claimant can perform other work that exists in significant numbers 

in the national economy, "taking into consideration the claimant's residual functional 

capacity, age, education, andwork experience." !d.; see also 20 C.F.R. §§ 404.1566; 416.966 

(describing "work which exists in the national economy"). If the Commissioner fails to meet this 

burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, 

the Commissioner proves that the claimant is able to perform other work existing in significant 

numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; 

Tackett, 180 F.3d at 1099. 

THE ALJ'S FINDINGS 

The ALJ applied the sequential process. At step one, the ALJ found Plaintiffhas not engaged 

in substantial gainful activity from the amended alleged onset date of April 7, 2011. Tr. 18 . At step 

two, the ALJ found Plaintiff's anxiety disorder, dysthymic disorder, bipolar disorder, somatoform 

disorder, cannabis abuse, alcohol abuse in partial remission, personality disorder, not otherwise 

specified, diabetes mellitus, and seizure disorder were severe impairments. !d. · At step three, the 

Page 4 -REPORT and RECOMMENDATION 
ALJ found that Plaintiff did not have an impairment or combination of impairments that met or 

equaled one ofthe.specific impairments listed in the regulations. 

The ALJ determined that Plaintiff had the RFC to perform medium work, and can lift and 

carry fifty pounds occasionally and twenty five pounds frequently; stand and walk six hours of an 

eight-hour workday; sit six hours of an eight-hour workday; and can perform simple routine tasks. 

He cannot work at heights or around dangerous machinery. Ti-.20. In reaching his conclusion, the 

ALJ <:onsidered Plaintiffs testimony, but found him not fully credible. Tr. 21. At step four, the ALJ 

found Plaintiff able to perform past relevant work as a dishwasher. Tr. 27. Therefore, the ALJ 

concluded Plaintiffhad not been under a disability, as defined by the Social Security Act, through 

June 13, 2013. 

STANDARD OF REVIEW 

The district court must affirm the Commissioner's decision if it is based on the proper legal 

standards and the findings are supported by substantial evidence. See 42 U.S.C. § 405(g); see also 

Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). "Substantial evidence" · 

means "more than a mere scintilla~ but less than a preponderance." Bray v. Comm 'r Soc. Sec. 

Admin., 554 F.3d 1219, 1222 (9th Cir. 2009)(quotingAndrews v. Shalala, 53 F.3d 1035, 1039 (9th 

Cir. 1995)). It means "such relevant evidence as a reasonable person might accept as adequate to 

support a conclusion." !d. 

Where the evidence IS susceptible to more than one rational interpretation, the 

Commissioner's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 

Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a 

rational reading of the record, and this court may not substitute its judgment for that of the 

Page 5- REPORT and RECOMMENDATION 
Coii111!-issioner. !d. "However, a reviewing court must consider the entire record as a whole and may 

not affirm simply by isolating a specific quantum of supporting evidence." Orn v. Astrue, 495 F .3d · 

625, 630 (9th Cir. 2007)(quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 

2006)(intemal quotations omitted)). The reviewing court, however, may not affirm the -

Commissioner on a ground upon which the Commissioner did not rely. !d.,· see also Bray, 554 F.3d 

at 1226. 

Even where findings are supported by substantial evidence, "the decision should be set aside 

if the proper legal standards were not applied in weighing the evidence and making the decision." 

Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42 U.S.C. § 405(g), 

the court has the-power to enter, upon the pleadings and transcript record, a judgment affirming, 

modifying, or reversing the decision of the Commissioner, with or without remanding the case for 

a rehearing. 

ADMINISTRATIVE RECORD 

I. Testimony 

Plaintiff, his· attorney, and a Vocational Expert appeared at a hearing before an ALJ on 

February 27,2013. Tr. 33-90. Plaintiff testified that he was 61 years old and divorced. Tr. 38. He 

was living in a travel trailer for the past seven or eight months. Tr. 39. Prior to acquiring the trailer 

he was homeless. He received food stamps and the Oregon Health Plan. Tr. 41-42. He joined the 

Army in 1972 but was discharged within 60 days because of his seizure disorder. 

Plaintiffwas convicted ofburglary, robbery, andkidnapping in 1986 and was incarcerated 

for seven years. Tr. 42. In 1995 he was convicted of domestic violence and served six months. T r. 

43. Plaintiff completed the ninth grade, obtained his GED, and completed some college credits. Tr. 

Page 6- REPORT and RECOMMENDATION 
44. He last worked as a cook in 2002. Tr. 45. He was fired from a dishwashingjob and a job in a 

deli when he failed to show up for work for three days because he had a headache. Tr. 49. 

Asked why he cannot work, Plaintiff responded that he canriot concentrate, he gets 

headaches, and "I have trouble with the depression a lot.. . .I don't know what to say really. I'm just 

-I have really a hard time concentrating." ld. He has stress and anxiety attacks. 

He liked washing dishes because "you didn't have to concentrate at it." Tr. 50. Plaintiff 

stated he cannot go back to dishwashing because he would miss too much work and he would be 

fired. On a bad day he may have two headaches, in a good month he might have two. · The . 

headaches last a couple of days. T r. 51. He does not take medication for the headaches because he 

is afraid of addictive pain medication. ld. 

He gets migraine headaches as well as tension headaches. Plaintiff is familiar with 

medications that might prevent a migraine, but they are not covered by his health insurance. Tr. 52, 

He does not always know when he is going to get a headache. He smokes marijuana about three 

times a week and that helps his headaches. Tr. 53. He volunteers as a care provider and provides 

marijuana to one person, who allows him to keep a little bit. He uses the bus for travel, and delivers 

marijuana about once a week. It takes a couple of hours. Plaintiffs marijuana is worth $10 to $20 

per week. He does not know if it is legal for him to be paid in cash instead of marijuana. T r. 57. 

Plaintiffkeeps a bus pass "because ifl sit at home too long the depression really sets in a lot." 

Tr. 58. He tries to get out of the house "try to go do something, you know, try, you know, try to do 

something, go fishing or something, anything, you know,just try to keep moving." ld. He has some 

problems with his hip which would not prevent him from washing dishes, "but the headaches and 

everything else, you know, put together it's made it hard to keep a job." Tr. 59. He has had about 

Page 7 - REPORT and RECOMMENDATION 
four beers in the last four months. !d. All'<.ietv affects his ability to work because when he becomes .; . 

stressed he "leave[ s] the situation." Tr. 60. When he starts feeling a panic attack he has "got to get 

away." Tr. 61. Plaintiff takes six medications, but he does not know if one of them is for anxiety. 

Depression affects his ability to work: 

Tr. 62. 

In a depression it's, oh, man, it just, you know, you get 

deep depression here last year I decided, for example, I 

decided that I was going to kill myself on July 26th. I 

did not know why that day this was in May when I decided to kill myself on July 26th. I decided it was going 

to be a wonderful day to die and r changed my -mind 

when I found out it wasn't a Thursday. I don't know why, 

but I had trouble with my daughter up in Washington. 

Plaintiff testified he inherited $97,000 at the beginning of the year when his mother passed 

away, and it was all gone. Tr. 62. He gave some of the money to other people. Tr. 63. He used 

some of the money to buy the travel trailer in which he lives. 

' 

Plaintiff stated he took pain pills in the 1960s and 1970s for his headaches and they almost 

killed him. He prefers marijuana because it is natural and works better than pain medication. Tr.65. 

Pain medication "messes with your head, and I don't want my head to be fuddled. I got enough 

troubles with my head being befuddled without taking a bunch of pain pills." !d. 

He walks to the grocery store nearly daily, and does his own housework, cooking, and 

laundry. Tr. 66. He listens to music, watches television about two hours daily, and uses a computer 

to visit Facebook. He uses the computer about two hours a day. He has "some good friends that I 

like to go see." Tr.68, 74. He washes dishes four or five times a dayfor about 20 minutes each, and 

cooks for about an hour at least once a day. 

Page 8- REPORT and RECOMMENDATION 
Plaintiff stated he has been successful at staying out of jail and "got lucky. I managed the 

outside but it's hard, you know." Tr. 72. He wants to stay straight and "help people now instead of 

hurting them and I think I've been doing that for quite a while now.'' I d. He gave some of his 

inheritance to a homeless friend and the friend's family. 

Stress causes his headaches to be worse._ Maintaining a work pace and coworkers can be 

stressful. T r. 77. He has neuropathy in his left foot that does not affect his ability to stand or walk. 

Tr. 80. His moods cycle between suicidal ideation and feeling like Superman. Tr. 81. The 

depressed mood will last a couple of days, and the euphoric mood will last about one day. The 

cycles occur about five or six times a month. He is not good with money, and thought if he were to 

receive benefits he should have a payee. Tr. 84. 

·II. Medical Records 

The medical records are extensive, and the parties are familiar with them. Therefore they will 

be set out below when relevant. 

DISCUSSION 

Plaintiff argues that the ALJ erred by (1) finding him less than fully credible; (2) improperly 

weighing medical evidence; and (3) failing to properly evaluate impairments arising from 

headaches. 

I. Credibility 

The Ninth Circuit has developed a two-step process for evaluating the credibility of a 

claimant's own testimony about the severity and limiting effect of the. claimant's symptoms. 

Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, the ALJ "must determine whether the 

claimant has presented objective medical evidence of an underlying impairment which could 

Page 9 - REPORT and RECOMMENDATION 
reasonably be expected to produce the pain or other symptoms alleged." Lingenfelter v. Astrue, 504 

F.3d 1028, 1036 (9th Cir. 2007). When doing so, the claimant "need not show that her impairment 

could reasonably be expected to cause the severity of the symptom she has alleged; she need only 

show that it could reasonably have caused some degree of the symptom." Smolen v. Chater, 80 

F.3d 1273, 1282 (9th Circ. 1996). 

Second, "ifthe claimant meets the first test, and there is no evidence of malingering,"' the 

ALJ can reject the claimant's testimony about the severity ofher symptoms only by offering specific, 

clear and convincing reasons for doing so.'" Lingenfelter, 504 F .3d at 1036 (quoting Smolen, 80 F .3d 

at 1281). It is "not sufficient for the ALJ to make only general findings; he must state which pain 

testi:rp.ony is not credible and what evidence suggests the complaints are not credible." Dodrill'v. 

Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be "sufficiently specific to permit 

the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." 

Orteza v. Shalala, 50 F.3d 748,750 (9th Cir. 1995)(citing Bunnell v. Sullivan, 947 F.2d 341,345-46 

(9th Cir. 1991)(en bane)). 

The ALJ may consider objective medical evidence and the claimant's treatment history, as 

well as the claimant's daily activities, work record, and the observations of physicians and third 

parties with personal knowledge ofthe claimant's functional limitations. Smolen, 80 F.3d at 1284. 

The Commissioner recommends assessing the claimant's daily activities; the location, duration, 

frequency, and intensity of the individual's pain or other symptoms; factors that precipitate and 

aggravate the symptoms; the type, dosage, effectiveness, and side effects of any medication, the 

individual receives or has received for relief of pain or other symptoms; and any measures other than 

Page 10- REPORT and RECOMMENDATION 
treatment the individual uses or has used to relieve pain or other_ symptoms. See SSR 96-7p, 

available at 1996 WL 3 7 4186. 

Further, the Ninth Circuit has said that an ALJ also "may consider...ordinary techniques of 

cred!bility evaluation, such ·as the reputation for lying, prior inconsistent statements concerning the 

symptoms ... other testimony by the claimant that appears less than candid [and] unexplained or 

inadequately explained failure to seek treatment or to follow a prescribed course of treatment[.]" 

Smolen, 80 F.3d at 1284. 

The ALJ found Plaintiffs statements concerning the intensity, persistence and limiting 

effects ofhis symptoms are not credible to the extent they are inconsistent with the above residual 

functional capacity assessment. Tr. 21, 23. The ALJ gave several specific reasons for this 

determination. Plaintiff contends they are neither clear nor convincing. 

Plaintiff contends that it was inconsistent for the ALJ to find somatoform and personality 

disorders severe at step two and to find Plaintiff not credible regarding his allegations of symptoms . 

. This argument fails because the ALJ offered several other reasons to find Plaintiff less than fully 

credible. The ALJ cited treatment records inconsistent with Plaintiffs allegations, medical evidence 

that did not contain objective evidence to support Plaintiffs claims, activities of daily living 

inconsistent with Plaintiffs claims, and significant criminal history. Tr. 21-24. Plaintiffhas not 

challenged any ofthose reasons. Accordingly, the ALJ's credibility determination is supported by 

substantial evidence and should be upheld. 

II. Medical Evidence 

Disability opinions are reserved for the Commissioner. 20 C.F.R. §§ 404.1527(e)(1); 

416.927( e)( 1 ) .. -If no conflict arises between medical source opinions, the ALJ generally must accord 

Page 11 - REPORT and RECOMMENDATION 
greater weight to the opinion of a treating physician than that of an examining physician. Lester v. 

Chafer, 81 F .3d 821, 830 (9th Cir. 1995). More weight is given to the opinion of a treating physician 

because the person has a greater opportunity to know and observe the patient as an individual. Orn, 

495 F.3d at 632. In such circumstances the ALJ should also give greater weight to the opinion of 

an examining physician over that of a reviewing physician. ld. If a treating or examining 

physician's opinion is not contradicted by another physician, the ALJ may only reject it for clearand 

convincing reasons. ld. (treating physician); Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 

2006) (examining physician). Even if one physician is contradicted by another physician, the ALJ 

may not reject the opinion without providing specific and legitimate reasons supporte9 by substantial 

evidence in the record. Orn, 495 F.3d at 632; Widmark, 454 F.3d at 1066. The opinion of an 

nonexamining physician, by itself, is insufficient to constitute substantial evidence to reject the 

opinion of a treating or examining physician. Widmark, 454 F.3d at 1066 n. 2. The ALJ may reject 

physician opinions that are "brief, conclusory, and inadequately supported by clinical findings." 

Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 

A. Nick Dietlein, Psy. D. 

Dr. Deitlein conducted a psychodiagnostic interview on July 22, 2011, and issued a four page 

report. Tr. 345-49. Dr. Deitlein reviewed documents. Tr. 345. Plaintiff said he had not been able 

to hold down a job because "my mood swings have gotten me in so much trouble, and he had "been 

mostly homeless throughout my life." ld. Plaintiffhad not worked since February 2002, noting "it 

is hard to keep a job when you cannot show up." Tr. 346 . 

. Plaintiff reported his current medical condition as "chronic pain everywhere. I wonder ifl 

have fibromyalgia." I d. In addition he noted diagnoses of diabetes and epilepsy,'and headaches and 

Page 12- REPORT.and RECOMMENDATION 
migraines since a childhood head injury. He took Aleve and Excedrin Migraine regularly. He was 

first hospitalized at Dammash State Hospital as a teenager after attempting suicide. 

He smoked marijuana every two weeks to treat his headaches. Plaintiffreported that after 

leaving the hospital he was "very drugged up. I worked my way down to pot. I was able to get off 

of everything once I was on pot. It helped to calm me down and it made me feel mellow." Tr. 346. 

Plaintiff said he had poor concentration and memory, and rated his depression as three out of ten, 

and anxiety as five out of ten. Tr. 347. Bipolar symptoms caused significant mood and energy 

swings. When he is down he has no energy, stays in bed, and has no motivation to accomplish tasks. 

He feels hopeless and suicidal. During his low phases, Plaintiffs ability to function at work is 

impaired. Low phases can last a few days or a few weeks. 

He enjoys music, playing horse shoes, and watching television. He cleans and cooks. He 

attends therapy groups a couple of times each week. Dr. Deitlein noted he appeared to be anxious 

at the beginning of the interview but soon appeared more comfortable. He was oriented to person, 

place, time and location, but could not name the current Governor or the last three Presidents of the 

United States. His eye contact was "predominately direct." Tr. 348. Plaintiff was cooperative, his 

. speech was of normal rhythm and rate. Dr. Deitlein noted that "Mr. Hills' predominant and stable 

mood was ref1ective of an individual who is depressed." !d. His cognitive functioning appeared to 

be in the normal range. His memory appeared to be intact, and his judgJD.ent for a social situation 

was within normal limits. Dr. Dietlein diagnosed Bipolar Disorder, most recent Depressed; 

Cannabis Abuse; Alcohol Abuse in full sustained remission; rule out Posttraumatic Stress Disorder, 

and assessed a GAF of 48. Dr. Dietlein concluded: 

Ill 

Page 13- REPORT and RECOMMENDATION 
Tr. 349. 

Today's evaluation revealed that Mr. Hills is able to understand 

and remember simple and complex instructions, is able to sustain 

his concentration and attention and is able to persist. He was also 

able to engage in social interactions successfully. With regards to 

his mental health issues, if Mr. Hills' bipolar symptoms are 

successfully treated he would likely be successful vocationally. 

However, his current physical medical conditions( epilepsy, 

diabetes and chronic diffuse pain) would also have to be factored 

in. Mr. Hills' physical conditions should be assessed by a medical 

provider as his physical conditions are notwithin the scope of 

practice for this provider. The combination of Mr. Hills' mental 

health and physical health conditions could hinder his ability to 

be successful vocationally. 

The ALJ noted Dr. Deitlein's opinion and gave it "significant weight." Tr. 22, 24. 

B. John Cochran, Ph.D. 

Dr. Cochran conducted a six-hour long interview and diagnostic testing ofPlaintiff,on March 

14, 2013, and issued a 17 page report. Tr. 501-18. Dr. Cochran reviewed Plaintiffs medical 

records, including Dr. Deitein's opinion; Plaintiffreported childhood sexual abuse. Tr. 502. He 

-

reported working as a dishwasher, and had been fired from two jobs for being too slow. Tr. 505. 

Plaintiff reported he had bipolar disorder, and was treated at Dammash State Hospital in 1970 

for depression and suicidal ideation. He said he does not always take his bipolar disorder 

medication. !d. He reported chronic pain and speculated whether he had fibromyalgia. Plaintiffhad 

been diagnosed with epilepsy, and had migraine headaches since a childhood head injury. 

Plaintiff reported major mood swings with racing thoughts, as well as panic attacks. He 

noted he was reckless when manic, and he had inherited $100,000 but gave almost all ofit away. 

He becomes grandiose, talkative with pressured speech, and has a reduced need for sleep. When he 

is depressed he loses interest in everything, has insomnia or hypersomnia, is restless and fatigued. 

Page 14- REPORT and RECOMMENDATION 
He feels worthless, wants to avoid people, has suicidal thoughts and has attempted suicide. Tr. 505-

06. 

Plaintiff has diabetes with intermittent dizziness and irritability. He cannot clearly feel his 

feet. He has intermittent seizures. Dr. Cochran noted Plaintiffs recent and remote memory 

appeared to be intact as well as concentration .. Tr. 506. Plaintiff said he had been hospitalized three 

times in the past year for headaches, and had daily anxiety issues. Dr. Cochran reported Plaintiffs 

judgment was intermittently poor and he had limited insight into his problems. Plaintiffs thought 

processes were goal directed, logical, relevant, and coherent. 

Plaintiff said he last drank alcohol a few days prior to the interview. He used marijuana to 

soothe his headaches, make him feel better, and help him cope. Plaintiff reported a significant 

criminal history. Tr. 507. 

Dr. Chochran administered the Test ofMemory 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. Plaintiff demonstrated 

good effort and motivation, but "was compromised to some extent by an,xiety and depression." !d. 

Dr. Cochran noted the test results appeared to be an accurate reflection of his abilities. 

Plaintiffs IQ score was 115, in the high average range. Testing indicated Plaintiff was not 

malingering. Tr. 510. Dr. Cochran stated: 

Ill 

Ill 

/I I 

Ill 

Page 15- REPORT and RECOMMENDATION 

.-••'..,., 
Tr. 511. 

Ori the MMPI-2, his record appears to be valid and interpretable. 

Larry and others scoring like this often have a sorriatoform disorder. 

They tend to be depressed and have anxiety. He tends to be 

functioning at a reduced level of efficiency. The somatic complaints 

presented by persons such as this include headaches, chest pain, back 

pain, and numbness or tremors of the extremities. Other physical 

complaints include weakness, fatigue, dizziness, and sleep disturbance. 

The physical symptoms increase in times of stress, and often there is 

clear secondary gain associated with the symptoms. He scored high 

on the somatoform scales on both the MMPI-2 and the MCMI-11. 

Dr. Cochran noted Plaintiff scored high on the anxiety, anger, and depression scales, as well 

as the low self-esteem, work interference, and negative treatment scales: 

Tr. 512. 

Larry and other high scorers on the' work interference scale 

indicates that he has a wide variety of attitudes and behaviors 

that are likely to contribute to poor work performance such as 

lacking energy; not being ambitious; feels overwhelmed and 

unable to cope with stress; feels insecure; often feels like a -

failure; has a poor self-concept; may obsessively ruminate 

about his past mistakes; has difficulty making decision; exercises 

poor judgment; feels anxious, tense, worried, and_ fearful; feels 

depressed, sad and hopeless; has a sleep disturbance; and reports 

somatic symptoms. 

The negative treatment indicator scale indicates that he tends to 

have negative attitudes toward doctors and mental health~ 

treatment that thwart treatment such as: may terminate treatment prematurely; feels that no one can understand him; believes 

that he has problems that he cannot share with anyone; gives up 

easily when problems are encountered; feels unable to make significant changes in his life; is experiencing intense emotional 

distress; often report sleep disturbances; frequently reports somatic symptoms; feels depressed, sad, and hopeless; may have 

suicidal ideation; has low energy levels; often feel aiL'\:ious and 

insecure; and is a poor pro,blem solver. 

Page 16- REPORT and RECOMMENDATION 
On the Millon Clinical Multiaxial Inventory-II, Plaintiffs responses "displayed a tendency 

toward self-deprecation and a consequent exaggeration of current problems but not to the point that 

it invalidated the record and made it not interpretable." Tr. 512-13. Dr. Cochran noted Plaintiff 

scored high on the Bipolar Disorder, Somatoform Disorder, Dysthymic Disorder and Anxiety scales. 

Tr. 513-14. 

Dr. Cochran diagnosed generalized arLxiety disorder with panic attacks, dysthymic disorder, 

bipolar disorder, most recent depressed, somatoform disorder, cannabis abuse, andalcohol abuse jn 

partial remission. Tr. 514. In addition, Dr. Cochran diagnosed personality disorder with avoidant 

and passive aggressive features, and assessed a GAF of 50. 

I)r. Cochran completed a Functional Assessment Form· in which he opined Plaintiff had 

moderately severe limitations in understanding and remembering detailed instructions; carrying out 

detailed instructions; maintaining attention and concentration for.extended periods oftime; working 

in coordination or proximity to others without being distracted by them; completing a normal work 

day without interruptions from psychologically based symptoms and/or completing a normal work 

week without interruptions from psychologically based symptoms; performi:ng at a consistent pace 

without an unreasonable number and length or rest periods; accepting instructions and responding 

appropriately to criticism from supervisors; getting along with coworkers or peers without distracting 

them or exhibiting behavioral extremes; responding appropriately to changes in a work setting; and 

setting realistic goals or making plans independent of others. Tr. 517-18. 

Dr. Cochran opined Plaintiff would have moderate limitations in remembering locations and 

work -like procedures; performing activities within a schedule, and/or maintaimng regular attendance, 

and/or being punctual within customary tolerances; sustaining an ordinary routine without special 

Page 17 - REPORT and RECOMMENDATION 
supervision; interacting with the general public; maintaining socially appropriate behavior and/or 

adhering to basic standards of neatness and cleanliness; and being aware of normal hazards and 

taking appropriate precautions. !d. 

Tr. 25. 

The ALJ noted Dr. Cochran's opinion and stated: 

His opinion regarding the claimant's ab1lity to perform simple 

routine work activity is consistent with th~ claimant's performance 

on mental status examinations. [Citations omitted.] However, his 

opinion regarding the claimant's inability to concentrate and persist 

in undermined by the claimant's ability to work as a marijuana "care 

provider:' for a young woman on a weekly basis, which includes 

spending hours picking up and delivering marijuana. Also, the 

claimant's ability to spend several hours on the computer daily, as 

well as read and write short stories, shows that he is capable of 

concentrating on interested activities. Further, his opinion regarding the claimant's social limitations is significantly weakened 

by the claimant's actual social functioning that includes providing 

marijuana for a woman, his ability to attend group therapy _sessions, 

take public transportation, go shopping; and visit good friends. I 

also note that the claimant gave misinformation to the doctor regarding his marijuana activity rendering Dr. Cochran's opinion 

about the claimant's functioning less reliable, as he did not have 

accurate information on which to base his opinion. Accordingly, · 

I give Dr. Cochran's opinion only some weight. 

The ALJ' s reliance on Plaintiffs weekly marijuana delivery as evidence of the ability to 

concentrate and persist is misplaced. Plaintiff testified that he makes a delivery about once a week, 

and it takes "just a couple hours." Tr. 56. The ability to take bus rides does not demonstrate the . 

ability to concentrate or persist. In addition, the ability to be on a computer for as much as two hours 

in a day, and read and write short stories, does not demonstrate the ability to sustain concentration 

or persist for an eight hour work day. Dr. Cochran's opinion r~garding Plaintiffs ability to 

concentrate and persist is contradicted by Dr. Deitlein, who found Plaintiff could concentrate and 

Page 18- REPORT and RECOMMENDATION 
persist. Tr. 349. However, Dr. Chochran's examination ofPlaintifflasted six hours, and included 

multiple psychological tests not administered by Dr. Deitlein. Dr. Deitlein's examination of 

Plaintiff was significantly shorter in duration, complexity, and detail. 

Moreover, Dr. Cochran's opinion is consistent with the opinion of treating mental health 

therapist Gailene Thiel, M.S.W., L.C.S.W., Q.M.H.P, of Marion County Mental Health (MCMH). 

Ms. Thiel saw Plaintiff for mental health counseling at least 13 times between March and October 

2011. Ms. Thiel spent more than ten hours with Plaintiff. Tr. 386,461, 380, 383, 378, 376,421, 

419,424,423. On March 8, 2011, Ms. Thiel noted Plaintiffhad had mental health treatment off and 

on since 1967 with five psychiatric hospitalizations. Tr. 3 86. She diagnosed severe depression, 

PTSD, uncontrolled Diabetes Mellitus, chronic headaches, and chronic leg pain, with a OAF of 4 7. 

Ms. Thiel documented waxing and waning symptoms of depression but ongoing aiLxiety manifested 

in rough and raw hands from where Plaintiffbit them. Tr. 462, 380, 378, 359. On May 10, 2011, 

Ms. Thiel noted Plaintiff was angry and irritable, and needed to pursue social security benefits 

"which is important in order for him to continue his recovery process." Tr. 420. Between April and 

July 2011, staff at MCMH assisted Plaintiff in obtaining socks, underwear, and shoes, and 

supervised him in refilling his pill minder. Tr. In July 2011, Ms. Thiel noted Plaintiffs depression 

was up and down with difficulties in concentration and memory. Tr. 424. In September 2011, 

MCMH staff noted Plaintiff needed an advocate when seeing his doctor. Tr. 412,437. 

Plaintiffs temporary housing through MCMH ended on November 30, 2011, and he 

thereafter moved to Washington. Tr. 463. Plaintiff returned to MCMH on July 2, 2012. Plaintiff 

had been offhis medication since February, and said he would commit suicide on July 26 unless he 

received his medication. !d. Julia Ray, QMHP, noted rapid speech, fair to poor insight and 

Page 19- REPORT and RECOMMENDATION 
( 

judgment, and anxiety with the inability to remain seated. Tr. 465. Ms. Ray made the provisional 

diagnosis of Bipolar Disorder NOS and assessed a GAF of 50. Tr. 466. 

Dr. Cochran's opinion is consistent with the opinion ofPatrick A. Wade, C.A.D.C.H., 1 Tr. 

305-22. Mr. Wade conducted a Multi-Axial Assessment ofPlaintiffbetween April14 and 18,2011, 

for Bridgeway Recovery Services. Plaintiff reported a history of alcohol and marijuana abuse. Mr. 

Wade's provisional diagnosis was cannabis abuse and alcohol abuse in full remission. Tr. 307. 

Plaintiffs hygiene was poor, as was his ability to pay attention, his judgment was impaired, insight 

limited, and thought process tangential. Tr. 314. Mr. Wade noted diagnoses ofBipolar I disorder, 

most recent episode depressed, severe, and panic disorder. Tr. 321. On April 19, 2011, Elizabeth 

Roberts, M.S., a Bridgeway employee, reported Plaintiff was "easily distracted" from the group 

topic and claimed to have a bad headache. Tr. 335. On May 18, 2011, Mr. Wade noted a tangential 

thought process and recommended Plaintiff attend two group therapy sessions each week as well as 

individual counseling twice a month. Tr. 328. 

On this record, the ALJ' s determination to accept Dr. Deitlein and reject Dr. Chochran is not 

supported by specific and legitimate reasons supported by substantial evidence in the record. Orn, 

495 F.3d at 632. 

Dr. Cochran found Plaintiffhad moderately severe limitations in social functioning. Tr. 517-

18. The ALJ noted this opinion, and found it contradicted by Plaintiffs actual social activities, 

including his weekly marijuana delivery, his ability to attend group therapy sessions, take public 

transportation, go shopping, and visit friends. Tr. 25. It is not fair to characterize Plaintiffs 

attendance at a medically prescribed mental health group therapy session as a "social function." 

'Mr. Wade has an additional professional qualification but it is illegible. Tr. 322. 

Page 20- REPORT and RECOMMENDATION 
On this record, the ALJ failed to identify specific and legitimate or clear and convincing 

reasons to reject Dr. Cochran's opinion that Plaintiff had moderately severe limitations in multiple 

functional dimensions, as well as moderate limitations in multiple functional dimensions. Tr. 517-

18. 

III. Headaches 

Plaintiff contends the ALJ failed adequately to consider absenteeism arising from his 

headaches. Plaintiff testified that he has headaches that can last a couple of days. Tr. 51. The ALJ 

relied on the evidence of Plaintiffs activities of daily living and Plaintiffs report that marijuana 

helped his headaches. Tr. 18, 21, 22, 24, 53. As set out above, the ALJ properly found Plaintiff less 

than fully credible and Plaintiff failed to meet his burden of showing his alleged headaches had more 

than a minimal effect on his ability to do work activities. 

REMAND 

The decision whether to remand for further proceedings or for immediate payment ofbenefits 

is within the discretion of the court. Harman v. Apfel, 211 F.3d 172, 1178 (9th Cir. 2000), cert. 

denied, 531 U.S. 1038 (2000). The issue turns on the utility of further proceedings. A remand for 

an award ofbene:tits is appropriate when no useful purpose would be served by further administrative 

proceedings or when the record has been fully developed and the evidence is insufficient to support 

the Commissioner's decision. Strauss v. Comm 'r, 635 F.3d 1135, 1138-39 (9th Cir. 20ll)(quoting 

Benecke v. Barnhart, 379 F.3d 587, 593 (91h Cir. 2004)). The court may not award benefits 

punitively, and must conduct a "credit-as-true" analysis to determine if a claimant is disabled under 

the Act. Id at 1138. 

Page21- REPORT and RECOMMENDATION 
Under the "credit-as-true" doctrine, evidence should be credited and an immediate award of 

benefits directed where: (1) the ALJ has failed to provide legally sufficient reasons for rejecting such 

evidence; (2) there are no outstanding issues that must be resolved before a determination of 

disability can be made; and (3) it is clear from the record that the ALJ would be required to find the 

claimant disabled were su~h evidence credited. !d. The "credit-as-true" doctrine is not a mandatory 

rule in the Ninth Circuit, but leaves the court flexibility in determining whether to enter an award 

of benefits upon reversing the Commissioner's decision. Connett v. Barnhart, 340 F .3d 871, 87 6 

(citing Bunnell v. Sullivan, 947 F.2d 871(91

h Cir. 2003)(en bane)). The reviewing court should 

decline to credit testimony when "outstanding issues" remain. Luna v. As true, 623 F .3d 103 2, 103 5 

(9th Cir. 2010). 

The ALJ'srejection of Dr. Cochran's opinion is erroneous for the reasons set out above. 

The Vocational Expert testified that, if Dr. Cochran's opinion is credited, Plaintiff would be unable 

to maintain employment. Tr. 89. 

Ill 

Ill 

II! 

Ill 

Ill 

Ill 

Ill 

Ill 

Accordingly, this matter should be remanded for the calculation and award of benefits. 

Page 22- REPORT and RECOMMENDATION 
RECOMMENDATION 

For the foregoing reasons, the Commissioner's final decision should be REVERSED and 

this/matter should be REMANDED for the calculation and payment of benefits. 

This Report and Recommendation will be referred to a district judge. Objections, if any, are 

due no later than fourteen (14) days after the date this recommendation is filed. If objections are 

filed, any response is due within fourteen (14) days after the date the objections are filed. See, 

FED.R.CIV.P. 72, 6. Parties are advised that the failure to file objections within the specified time 

may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 

1991). 

· Dated this/0 dayofDecember, 2015. 

Mark D. Clarke 

United States Magistrate Judge 

Page 23- REPORT and RECOMMENDATION