1 – OPINION AND ORDER

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

JEFFREY K. COCHELL,

Plaintiff, 

v.

COMMISSIONER OF THE SOCIAL 

SECURITY ADMINISTRATION,

Defendant.

Case No. 3:14-cv-01201-ST

OPINION AND ORDER

STEWART, Magistrate Judge:

INTRODUCTION

Plaintiff, Jeffrey K. Cochell (“Cochell”), seeks judicial review of the final decision 

by the Social Security Commissioner (“Commissioner”) denying his applications for

Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“SSA”), 

42 USC §§ 401-433, and Supplemental Security Income (“SSI”) under Title XVI of the 

SSA, 42 USC §§ 1381-1383f. This court has jurisdiction to review the Commissioner’s 

decision pursuant to 42 USC § 405(g) and § 1383(c)(3). All parties have consented to allow 

a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP

73 and 28 USC § 636(c) (docket #7). 

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2 – OPINION AND ORDER

The Commissioner has filed a Motion to Remand for further administrative 

proceedings (docket #26). For the reasons set forth below, that motion is DENIED and the 

Commissioner’s decision is REVERSED and REMANDED for award of benefits.

ADMINISTRATIVE HISTORY

Cochell protectively filed for DIB and SSI on Tuesday, July 27, 2010, alleging a 

disability onset date of April 3, 2010. Tr. 219-30.

1

 His applications were denied initially 

and on reconsideration. Tr. 90-91, 125-26, 129-36, 142-43. On November 15, 2012, a 

hearing was held before Administrative Law Judge (“ALJ”) Jo Hoenninger. Tr. 21-61. The 

ALJ issued a decision on December 7, 2012, finding Cochell not disabled. Tr. 9-20. The 

Appeals Council denied a request for review on June 4, 2014. Tr. 1-4. Therefore, the ALJ’s 

decision is the Commissioner’s final decision subject to review by this court. 20 CFR 

§§ 404.981, 416.1481, 422.210.

BACKGROUND

Born in 1976, Cochell was 33 years old on the alleged onset date. Tr. 219. He has a 

college education and past relevant work experience as a self-employed guitar musician, 

apparel line manager, and customer service representative. Tr. 29-30, 51-52, 246. Cochell

alleges that he is unable to work due to combined impairments from a brain injury sustained 

during a car accident. Tr. 245.

I. Medical Records

A. Dr. Conti

While driving his car on April 3, 2010, Cochell was rear-ended. Tr. 299. The 

airbags did not deploy, causing him to hit the back of his head. Id. He reported to the 

 

1

 Citations are to the page(s) indicated in the official transcript of the record filed on December 3, 2014

(docket # 12).

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3 – OPINION AND ORDER

emergency room two hours later complaining of an occipital headache, neck pain, low back 

pain, and mild dizziness. Tr. 299-300. For the next six months, he continually sought 

medical attention from various specialists for headaches, cognitive problems, fatigue and 

increased depression. He eventually established mental health treatment in October 2010 

with Paul M. Conti, M.D., a psychiatrist and neurologist at Healthworks NW. Tr. 462-69, 

878-94. 

On October 7, 2010, Dr. Conti wrote a psychiatric evaluation report based on an 

interview and evaluation of Cochell and a review of records, including a detailed report

from neuropsychologist Sharon M. Labs, Ph.D.. Tr. 465-69. Dr. Conti noted that Cochell’s 

“[s]entences will at times be run on [and] there is some mild circumlocution.” Tr. 467. In 

addition, Cochell’s thought process was “[g]enerally linear, although there is some 

circumstantiality.” Id. Cochell’s cognition was “[n]otable for deficits in executive function 

and memory.” Id. Dr. Conti stated Cochell “has clear evidence of left prefrontal 

dysfunction [and] evidence of disruption of corticostriatolimbic affective connections.” Id. 

Ultimately, Dr. Conti diagnosed Cochell with mood disorder secondary to traumatic brain 

injury (“TBI”); premorbid major depressive episode, recurrent, moderate; and postconcussion syndrome due to motor vehicle accident. Tr. 468. 

Dr. Conti wrote another evaluation of Cochell in November 2012 after treating him 

regularly for nearly two years. Tr. 838-40. Based on that treatment and a review of medical 

records from various specialists prior to and after the car accident through October 2012, he 

opined that Cochell’s “symptoms have rendered him incapable of sustaining competitive 

employment . . . . since his motor vehicle accident in April of 2010.” Tr. 839. Reiterating

his conclusions from the October 2010 report, he opined that “[t]he brain areas affected by 

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4 – OPINION AND ORDER

Mr. Cochell’s traumatic brain injury would predictably lead to executive function problems, 

auditory and general memory impairment, and fine motor deficits.” Tr. 839. He concluded 

that “both clinical experience and two different neuropsychological test results corroborate 

significant impairments in memory function and perceptual reasoning.” Id. Despite 

reporting “some improvement in his cognitive functioning, the accident clearly exacerbated 

his long-standing depression.” Id. He explained that Cochell:

would have difficulty learning new information, and in a work setting 

would likely need significantly more time than the average person to 

learn a new task. Even if he is able to learn a new task, I would expect 

him to be slower, and perhaps inconsistent, in performing it. He 

would also have great difficulty being flexible or adjusting to changes. 

Most significantly, the pressures inherent in a work setting would 

likely make him easily overwhelmed, significantly reduce his 

productivity, and cause him to call in sick or go home early several 

times per month. Frankly, it would surprise me if he lasted longer than 

two-to-three weeks in any work setting before he quit or was fired.

Tr. 840.

B. Dr. Perrillo

In May 2011, Richard J. Perrillo, Ph.D., a neuropsychologist, examined Cochell and 

reviewed his extensive medical records. Tr. 842-77. Dr. Perrillo diagnosed Cochell with 

moderate brain dysfunction, posttraumatic stress disorder with moderate/severe symptoms 

and interference in functioning, and moderate/severe psychological distress. Tr. 865-66. 

Dr. Perrillo stated Cochell had “mild and moderate impairments primarily in inability to 

inhibit competing stimuli, complex focused attention, perceptual abstract reasoning and the 

ability for self monitoring, and visual scanning and planning.” Tr. 858-59. He further 

predicted that Cochell “will lose cognitive proficiency especially when the cognitive load 

increases. His moderate inability to shift from one idea to the next will result in being rigid 

in persisting in mistakes without the benefit of feedback and learning.” Tr. 859. 

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5 – OPINION AND ORDER

Dr. Perrillo specified that Cochell had deficiencies in the following executive functions: 

accuracy, reaction time, non-verbal memory, perceptual matching, spatial memory, complex 

attention and continual focus, logical analysis, and visual scanning. Id. He ultimately 

opined that Cochell’s disability status was “[p]ermanent” with 

100% disability from a neuropsychological and clinical psychological 

perspective with selective frontal, temporal, parietal and occipital 

impairments and general diffuse brain damage . . . . It is doubtful that 

even if his psychology were to clear up, that he would be able to 

compete and be productively employed. Brain effects are apparent.

Tr. 866.

II. Hearing Testimony

A. Cochell’s Testimony

At the hearing on November 15, 2012, Cochell testified that since the April 2010 car 

accident, he had worked part-time as a musician and as a receptionist in an acupuncturist’s 

office. Tr. 31-32. As a musician, he had some success the first two summers after the 

accident, playing seven to eight weddings each summer as well as a couple of additional 

shows at wineries, bars, and coffee shops each month. Tr. 32-33. At the time of the 

hearing, he had approximately one performance every several months, but had none 

currently scheduled. Tr. 29, 32-33. After a wedding performance, which took up to one full 

day with planning, transportation, and actual performance, he was exhausted for several 

days, and estimated that he could perform at most only once every four days. Tr. 33-34, 44-

45. 

In addition, Cochell worked as a receptionist for around six hours one to two days 

per week from February to July 2012. Tr. 31. He ultimately left that job because of 

delusions that he was being recorded at home and at work. Tr. 31-32. 

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6 – OPINION AND ORDER

Cochell is unable to work because he has difficulty sustaining energy, paying 

attention, remembering details and focusing, and getting distracted and easily overwhelmed. 

Tr. 36, 49. His depression and stress also would interfere with his ability to work. Tr. 37. 

Furthermore, he naps a couple of hours each day, and gets confused and overwhelmed more 

easily than usual when he is unable to nap. Tr. 43-44.

B. Vocational Expert Testimony

The ALJ asked the Vocational Expert (“VE”) what jobs the following hypothetical 

individual could perform: limited to light work, except occasional overhead reaching with 

the left upper extremity; short, simple instructions; simple tasks; minimal changes to the 

work setting; not competitive production paced work; only occasional interaction with the 

public and coworkers; and without concentrated exposure to excessive noise. Tr. 54, 56. 

The VE opined that such an individual could perform unskilled work as a motel cleaner, an 

electronics worker, and price marker. Tr. 56-57. The VE also explained that a competitive 

work environment allows only one day of absence per month and that the three identified 

unskilled jobs would probably tolerate even fewer absences per month. Tr. 58-59. 

DISABILITY ANALYSIS

Disability is the “inability to engage in any substantial gainful activity by reason of 

any medically determinable physical or mental impairment which can be expected to result 

in death or which has lasted or can be expected to last for a continuous period of not less 

than 12 months.” 42 USC § 423(d)(1)(A). The ALJ engages in a five-step sequential 

inquiry to determine whether a claimant is disabled within the meaning of the Act. 20 CFR 

§§ 404.1520, 416.920; Tackett v. Apfel, 180 F3d 1094, 1098-99 (9th Cir 1999). 

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7 – OPINION AND ORDER

At step one, the ALJ determines if the claimant is performing substantial gainful 

activity. If so, the claimant is not disabled. 20 CFR §§ 404.1520(a)(4)(i) & (b), 

416.920(a)(4)(i) & (b).

At step two, the ALJ determines if the claimant has “a severe medically determinable 

physical or mental impairment” that meets the 12-month durational requirement. 20 CFR

§§ 404.1520(a)(4)(ii) & (c), 416.909, 416.920(a)(4)(ii) & (c). Absent a severe impairment, 

the claimant is not disabled. Id.

At step three, the ALJ determines whether the severe impairment meets or equals an 

impairment “listed” in the regulations. 20 CFR § § 404.1520(a)(4)(iii) & (d), 

416.920(a)(4)(iii) & (d); 20 CFR Pt. 404, Subpt. P, App. 1 (Listing of Impairments). If the 

impairment is determined to meet or equal a listed impairment, then the claimant is 

disabled. 

If adjudication proceeds beyond step three, the ALJ must first evaluate medical and 

other relevant evidence in assessing the claimant’s residual functional capacity (“RFC”). 

The claimant’s RFC is an assessment of work-related activities the claimant may still 

perform on a regular and continuing basis, despite the limitations imposed by his or her 

impairments. 20 CFR §§ 404.1520(e), 416.920(e); Social Security Ruling (“SSR”) 96-8p, 

1996 WL 374184 (July 2, 1996). 

At step four, the ALJ uses the RFC to determine if the claimant can perform past 

relevant work. 20 CFR §§ 404.1520(a)(4)(iv) & (e), 416.920(a)(4)(iv) & (e). If the 

claimant cannot perform past relevant work, then at step five, the ALJ must determine if the 

claimant can perform other work in the national economy. 20 CFR §§ 404.1520(a)(4)(v) & 

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8 – OPINION AND ORDER

(g), 416.920(a)(4)(v) & (g); Bowen v. Yuckert, 482 US 137, 142 (1987); Tackett, 180 F3d at

1099.

The initial burden of establishing disability rests upon the claimant. Tackett, 180 

F3d at 1098. If the process reaches step five, the burden shifts to the Commissioner to show 

that jobs exist in the national economy within the claimant’s RFC. Id. If the Commissioner 

meets this burden, then the claimant is not disabled. 20 CFR §§ 404.1520(a)(4)(v) & (g), 

416.920(a)(4)(v) & (g), 416.960(c).

ALJ’S FINDINGS

At step one, the ALJ concluded that Cochell has not engaged in substantial gainful 

activity since April 3, 2010, the date that his application was protectively filed. Tr. 11.

At step two, the ALJ determined that Cochell has the severe impairments of 

traumatic brain injury, organic brain disorder, and spine disorder. Tr. 11-14. 

At step three, the ALJ concluded that Cochell does not have an impairment or 

combination of impairments that meets or equals any of the listed impairments. Tr. 14-15. 

The ALJ found that Cochell has the RFC to perform light work with the following 

additional limitations: occasional reaching overhead with left upper extremity; short simple 

instructions; simple tasks; minimal changes in work setting; no competitive production-pace 

work; occasional interaction with the public and coworkers, and no concentrated exposure 

to excessive noise. Tr. 15-18.

Based upon the testimony of the VE, the ALJ determined at step four that Cochell’s 

RFC precluded him from returning to his past relevant work. Tr. 18.

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9 – OPINION AND ORDER

At step five, the ALJ found that considering Cochell’s age, education, and RFC, he

was capable of performing unskilled work as a motel cleaner/housekeeper, electronics 

worker, and price marker. Tr. 19. 

Accordingly, the ALJ determined that Cochell was not disabled at any time through 

the date of the decision. Tr. 20.

STANDARD OF REVIEW

The reviewing court must affirm the Commissioner’s decision if it is based on proper 

legal standards and the findings are supported by substantial evidence in the record. 42 

USC § 405(g); Lewis v. Astrue, 498 F3d 909, 911 (9th Cir 2007). This court must weigh the 

evidence that supports and detracts from the ALJ’s conclusion. Lingenfelter v. Astrue, 504 

F3d 1028, 1035 (9th Cir 2007), citing Reddick v. Chater, 157 F3d 715, 720 (9th Cir 1998). 

The reviewing court may not substitute its judgment for that of the Commissioner. Ryan v. 

Comm’r of Soc. Sec. Admin., 528 F3d 1194, 1205 (9th Cir 2008), citing Parra v. Astrue, 481 

F3d 742, 746 (9th Cir 2007); see also Edlund v. Massanari, 253 F3d 1152, 1156 (9th Cir 

2001). Where the evidence is susceptible to more than one rational interpretation, the 

Commissioner’s decision must be upheld if it is “‘supported by inferences reasonably drawn 

from the record.’” Tommasetti v. Astrue, 533 F3d 1035, 1038 (9th Cir 2008), quoting Batson 

v. Comm’r of Soc. Sec. Admin., 359 F3d 1190, 1193 (9th Cir 2004); see also Lingenfelter, 

504 F3d at 1035. 

DISCUSSION

Cochell seeks to reverse and remand the Commissioner’s decision for an award of 

benefits because the ALJ erred by rejecting the opinions of his treating physician, Dr. Conti, 

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10 – OPINION AND ORDER

and examining physician, Dr. Perrillo, and by relying on VE testimony that was inconsistent 

with the RFC determination. 

The Commissioner concedes that the ALJ primarily erred by relying on the VE’s 

testimony which conflicted with the Dictionary of Occupational Titles regarding the amount 

of noise exposure in the representative occupations of motel cleaner, electronics worker, and 

price marker. Tr. 19, 56; U.S. Dep’t of Labor, Dictionary of Occupational Titles (4th ed. 

1991), DOT Codes 323.687-014, 726.687-010, 209.587-034. However, the Commissioner 

argues that further administrative proceedings are necessary for additional VE testimony to 

resolve this inconsistency or, in the alternative, to determine if any other representative 

occupations are compatible with Cochell’s RFC. In addition, the Commissioner argues that 

further administrative proceedings are necessary to resolve the inconsistency between the 

medical opinions of Drs. Conti and Perrillo and Cochell’s activities of daily living (“ADL”).

However, as discussed below, the ALJ erred by failing to provide legally sufficient 

reasons to reject the opinions of Drs. Conti and Perrillo. Because neither of those opinions 

conflict with Cochell’s ADL, no outstanding issue remains to be resolved. When those 

opinions are credited as true, it is clear that Cochell is disabled from any occupation,

rendering any additional VE testimony unnecessary. Therefore, no further administrative 

proceedings would be useful.

I. Physicians’ Opinions

A. Legal Standard

The weight given to the opinion of a physician depends on whether it is from a 

treating physician, an examining physician, or a nonexamining physician. More weight is 

given to the opinion of a treating physician who has a greater opportunity to know and 

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11 – OPINION AND ORDER

observe the patient as an individual. Orn v. Astrue, 495 F3d 625, 632 (9th Cir 2007). If a 

treating or examining physician’s opinion is not contradicted by another physician, the ALJ 

may only reject it for clear and convincing reasons. Id; Widmark v. Barnhart, 454 F3d 

1063, 1066 (9th Cir 2006). Even if the opinion is contradicted by another physician, the ALJ 

may not reject it without providing specific and legitimate reasons supported by substantial 

evidence in the record. Orn, 495 F3d at 632; Widmark, 454 F3d at 1066.

The opinion of a nonexamining physician, by itself, is insufficient to constitute 

substantial evidence to reject the opinion of a treating or examining physician. Widmark, 

454 F3d at 1066 n2. However, it may serve as substantial evidence when it is supported by 

and consistent with other evidence in the record. Morgan v. Comm’r of Soc. Sec. Admin., 

169 F3d 595, 600 (9th Cir 1999).

B. Dr. Conti

Although Dr. Conti has treated Cochell since 2010, the ALJ gave only “some 

weight” to his opinion for several reasons: (1) “in October 2010, Dr. Conti recommended 

that the claimant go to vocational rehabilitation, which indicated a belief that [Cochell] 

could work;” (2) his opinion that Cochell “is incapable of sustaining employment is a 

determination reserved for the commissioner;” and (3) his “opinion is inconsistent with the 

record as a whole, particularly [Cochell’s] ability to care for himself, maintain selfemployment as a musician, run, do yoga, play basketball, and travel unassisted to California 

with difficulties.” Tr. 17 (citation omitted). The ALJ also stated that on October 22, 2010, 

Cochell “reported his depression was well controlled and that his mood had improved with 

activity and that his stress [was] down considerably.” Tr. 17 (alteration in original), quoting 

Ex. 33F/pp. 4-5. The ALJ added that “for most office visits the claimant was seen by Dr. 

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12 – OPINION AND ORDER

Conti’s assistant, Jamey Burris-Fish, PMHNP, not by Dr. Conti” and that “[i]t is also 

apparent that Dr. Conti was not aware of claimant’s report to Western Psychological in 

September 2012 of ‘using alcohol for 19 months, 3 to 4 days per week.’ Overall the 

claimant’s physical and mental functioning is far more independent and functional than 

opined by Dr. Conti.” Id (citation omitted). None of these reasons withstands scrutiny.

The ALJ apparently equated Dr. Conti’s recommendation that Cochell work with 

vocational rehabilitation (“VR”) as indicating a belief that Cochell was not disabled. 

However, VR is a service for people with disabilities. State of Oregon Department of 

Human Services, Vocational Rehabilitation, What is Vocational Rehabilitation (VR)?, 

http://www.oregon.gov/dhs/employment/VR/Pages/About-VR.aspx. Thus, Dr. Conti’s 

recommendation for VR is consistent with his opinion on Cochell’s limitations and provides 

no basis to discount his opinion. 

The ALJ is correct that a physician’s conclusory statement that a claimant is 

“disabled” or “unable to work” is not binding on the Commissioner's disability 

determination. 20 CFR § 416.927(d)(1). However, a physician’s opinion regarding the 

likelihood of a claimant to maintain gainful employment based on his or her impairments is 

not a conclusory statement and should be considered. Hill v. Astrue, 698 F3d 1153, 1160 

(9th Cir 2012). Dr. Conti opined that Cochell’s “symptoms have rendered him incapable of 

sustaining competitive employment, explained to me as a 40-hour work week, 8-hour day, 

two 15-minute breaks, a lunch break and no more than two absences per month.” Tr. 839. 

Dr. Conti specified those symptoms in detail in his reports. Hi opinion is not conclusory, 

but rather conveys his belief, based on nearly two years of treatment and extensive testing, 

that Cochell lacks certain mental functions required for competitive employment. 

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13 – OPINION AND ORDER

Because the ALJ identified an inconsistency between “the record as a whole” and 

some of Cochell’s ADL, the Commissioner urges a remand for further administrative 

proceedings in order to resolve an alleged inconsistency between Dr. Conti’s opinion and 

Cochell’s ADL. However, the ADL noted by the ALJ do not relate to the limitations 

Dr. Conti assessed. Dr. Conti specifically stated that Cochell would have difficulty learning 

new information and, if he was able to learn a new task, would perform it slowly and 

inconsistently. Cochell played music, ran, did yoga, and played basketball before his 

accident. Tr. 267. Continuing such activities after his accident would not contradict

Dr. Conti’s opinion that Cochell would have difficulty learning and performing new tasks. 

In addition, most of the activities noted by the ALJ require physical exertion rather than 

mental functioning. Although Dr. Conti predicted Cochell’s TBI could cause fine motor 

deficits, he primarily identified mental or emotional limitations. To the extent that 

Cochell’s ADL are physical rather than mental, they are irrelevant to Dr. Conti’s opinion on 

Cochell’s mental functioning. 

Moreover, Dr. Conti opined that Cochell’s mental impairments would cause him to 

be easily overwhelmed at work, which would impair his productivity and cause him to miss 

several days per month. Tr. 840. The activities the ALJ noted are not comparable to a work 

environment and likely would not overwhelm Cochell in the same way as a competitive job.

See Orn, 495 F3d at 639 (to discredit claimant’s testimony with evidence of ADL, the ADL 

must contradict claimant’s testimony or be transferable to a work setting and constitute a 

substantial part of claimant’s day). Thus, even as represented by the ALJ, Cochell’s ADL 

do not contradict Dr. Conti’s opinion regarding Cochell’s limitations.

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14 – OPINION AND ORDER

Furthermore, the record reflects that Cochell is far less active than the ALJ 

represented. First, Cochell’s ability to care for himself is questionable. When he arrived at 

his appointment with Dr. Labs on August 26, 2010, he presented with “fair hygiene.” 

Tr. 753. But at his appointment with Burris-Fish on July 3, 2012, he had “poor hygiene and 

grooming appears unkempt.” Tr. 882. In addition, at the time of the hearing, Cochell lived 

with his aunt. Tr. 28. Second, at his busiest since the accident, Cochell was booking only 

seven to eight wedding performances per summer and a few additional performances at 

coffee shops, bars, and wineries, totaling “a couple of gigs a month.” Tr. 16, 33. Each 

“gig” takes about a full day, and couple of days per month does not constitute a substantial 

part of Cochell’s life. Third, Cochell consistently reported to his medical providers that he 

is no longer as active as he was before the accident. E.g., Tr. 749 (“He is significantly less 

active.”). Although Cochell stated he was doing “yoga 3 times a week” in April 2010, the 

next month he told his counselor, Connie Chalmers, M.S., that he “stopped going to yoga.” 

Tr. 318, 813. As of August 2010, he “no longer play[s] basketball at all” and goes to the 

gym “a couple of times per month.” Tr. 267. Fourth, although Cochell traveled to 

California, the ALJ acknowledged that he did so “with difficulties,” and the reason for the

trip was to undergo neuropsychological testing. Tr. 17, 815, 842. In sum, Cochell’s report 

of his ADL throughout the medical record is consistent, and the ADL themselves are not 

significant enough to contradict or discredit Dr. Conti’s medical opinion on Cochell’s 

limitations.

The other reasons given by the ALJ similarly lack merit. The record indicates that 

Cochell was seen by Burris-Fish only twice (6/22/12, Tr. 884; 7/3/12, Tr. 882-83) for urgent 

medication management appointments and was primarily seen by Dr. Conti himself over a 

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15 – OPINION AND ORDER

nearly two-year period. Tr. 462-69, 880-92. With respect to alcohol use, a review of the 

report to Western Psychological reflects that Cochell actually stated “that he has not used 

alcohol in 19 months as prior to this time he consumed alcohol approximately 3-4 nights per 

week in varied amounts.” Tr. 790 (emphasis added). The handwritten “therapist note[]” 

states Cochell “quit using alcohol 19 months - 3-4 days per week.” Tr. 795 (emphasis 

added). 

Regarding the supposed improvement of Cochell’s depression, the portion of the 

medical record cited by the ALJ (Ex. 33F/pgs. 4-5 at Tr. 881-82) are actually notes from 

two separate visits in July 2012, neither of which appear to include a report that Cochell’s 

depression is well-controlled or that his mood or stress level has improved. Additionally,

Cochell saw Dr. Conti on October 21, not October 22, 2010. Tr. 464. At that appointment, 

the medication Dr. Conti prescribed at their first meeting appeared to be helping, as Cochell 

reported decreased sedation and napping as well as a possible increase in focus. Id. He also 

told Dr. Conti “I’ve noticed it’s different . . . a couple of good things,” and “still some low 

mood, but more hopefulness.” Id. Dr. Conti did not state at this appointment that Cochell’s 

depression was “well-controlled,” and this court has been unable to locate any such note 

from any medical provider.

In addition, Cochell’s depression symptoms, as well as his reporting of them to 

Dr. Conti, were consistent throughout the treatment period. At his appointment on 

November 4, 2010, Cochell reported “mild improvement” and on November 16, reported his 

mood as “ok.” Tr. 462-63. On December 20, 2010, Dr. Conti noted Cochell “was doing 

better and now doing worse.” Tr. 892. On January 3, 2011, Cochell had shown “some 

improvement on Gabapentin but still some depression.” Tr. 891. Later that month, Cochell 

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16 – OPINION AND ORDER

stated he had “no change in energy or mood, but ‘I’m not in the fog as much.’” Tr. 890. On 

February 21, 2011, the Adderall seemed to be helping, “although effects of TBI still 

present.” Tr. 889. In July 2011, Cochell showed greater improvement, however on 

November 10, 2011, he appeared in a mild depressive state with dysphoria. Tr. 886-87. 

Cochell expressed “frustration [regarding] cognitive deficits (decreased speed and 

[illegible]) and external stressors.” Tr. 886. In December 2011, Cochell again showed mild 

improvement but expressed “frustration.” Tr. 888. He said that he was “just getting by” 

and “in survival mode.” Id. In March 2012, although the Adderall was still helping, 

Cochell’s anxiety was causing decreased appetite and sleep latency. Tr. 885. The rest of 

the treatment notes from Healthworks NW providers focus on Cochell’s paranoid delusions 

and psychosis. Tr. 880-84. Dr. Conti’s November 2012 report incorporated all of these 

visits. Tr. 838-40. Although the record reflects that Cochell’s depression occasionally 

showed minor improvements, his symptoms persisted throughout the relevant period, 

contrary to the ALJ’s statement. 

In sum, none of the reasons for the ALJ to discount Dr. Conti’s opinion are 

legitimate. Instead, the record as a whole supports Dr. Conti’s opinion that the limitations 

resulting from Cochell’s impairments would preclude him from competitive employment. 

C. Dr. Perrillo

The ALJ also gave Dr. Perrillo’s opinion “little weight” because

no other treating source has assessed the claimant as disabled or 

unable to perform basic work activities; Dr. Perrillo is not a treating 

source, and his evaluation was the one and only time he met with the 

claimant. Lastly, it does not appear that Dr. Perrillo was made aware 

of the significant functioning by the claimant, as demonstrated by 

claimant’s [ADL] and self employment as a musician. Moreover, the 

record as a whole does not support Dr. Perrillo’s opinion. Further, a 

determination of disability is reserved for the Commissioner.

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17 – OPINION AND ORDER

Tr. 16-17. 

As with Dr. Conti, none of these reasons withstands scrutiny.

First, the ALJ was simply wrong that no other treating source assessed Cochell as 

unable to perform basic work activities. Dr. Conti was a treating source and assessed 

Cochell as unable to sustain competitive employment or perform many basic work 

activities. Tr. 839-40. 

Second, all medical opinion evidence, including an examining physician’s opinion, 

must be considered, including opinions rendered after a single examination. See 

Tommasetti, 533 F3d at 1041. “[T]he opinion of an examining doctor, even if contradicted

by another doctor, can only be rejected for specific and legitimate reasons that are supported 

by substantial evidence in the record.” Widmark, 454 F3d at 1066 (alteration in original), 

quoting Lester v. Chater, 81 F3d 821, 830-31 (9th Cir 1995). The fact that Dr. Perrillo is an 

examining physician is not a legitimate reason to give his opinion little weight. Moreover, 

the ALJ gave “some weight to the assessments of the State Agency medical and 

psychological consultants as their opinions were based on a review of the medical evidence 

of record.” Tr. 18. Dr. Perrillo, who met, interviewed, observed, and examined Cochell 

over a two-day period, also based his opinion on a review of the medical record. Tr. 842-45 

(summary of records). It defies logic to give less weight to Dr. Perrillo’s opinion because 

he only met Cochell once than to the opinion of physicians who never met Cochell. Lester, 

81 F3d at 832.

Third, that Dr. Perrillo was unaware of Cochell’s functioning is pure speculation 

without any support in the record. Additionally, as with Dr. Conti, Cochell’s part-time 

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employment as a musician and ADL, including occasional exercise, do not contradict 

Dr. Perrillo’s assessment.

Fourth, the record as a whole does not contradict Dr. Perrillo’s opinion, but actually 

supports it. 

Finally, although the determination of disability is reserved for the Commissioner, in 

addition to opining that Cochell was “100%” disabled, Dr. Perrillo identified numerous 

specific limitations resulting from Cochell’s impairments. Dr. Perrillo’s opinion on 

Cochell’s impairments and limitations are not conclusory.

In sum, the ALJ failed to provide adequate reasons to discount Dr. Perrillo’s opinion.

II. Remand

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

benefits is within the discretion of the court. Harman v. Apfel, 211 F3d 1172, 1178 (9th Cir 

2000). The issue turns on the utility of further proceedings. A remand for an award of 

benefits 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 of Soc. Sec. Admin., 635 F3d 

1135, 1137-38 (9th Cir 2011), quoting Benecke v. Barnhart, 379 F3d 587, 593 (9th 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.

Under the “crediting as true” doctrine, three conditions must be satisfied in order for 

a district court to remand for an award of benefits: 

(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) if the improperly 

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

to find the claimant disabled on remand.

Garrison v. Colvin, 759 F3d 995, 1020 (9th Cir 2014) (citations omitted). The “crediting as 

true” doctrine is not a mandatory rule in the Ninth Circuit, but leaves the court “some 

flexibility.” Connett v. Barnhart, 340 F3d 871, 876 (9th Cir 2003), citing Bunnell v. 

Sullivan, 947 F2d 341, 348 (9th Cir 1991) (en banc). That flexibility allows the court “to 

remand for further proceedings when the record as a whole creates serious doubt as to 

whether the claimant is, in fact, disabled within the meaning of the Social Security Act.” 

Garrison, 759 F3d at 1021.

Relying on Treichler v. Comm’r of Soc. Sec. Admin., 775 F3d 1090 (9th Cir 2014),

the Commissioner argues that the court should not credit the medical opinions as true due to 

the need to first resolve inconsistencies between the opinions of Drs. Conti and Perrillo and 

Cochell’s ADL. This court disagrees. In Treichler, the ALJ found that Treichler was not 

credible concerning his symptoms. The Ninth Circuit held that the ALJ erred by failing “to 

provide a discussion of the evidence and the reason or reasons upon which his adverse 

determination is based.” Id at 1103 (citations and quotation marks omitted). Despite the 

error, the Ninth Circuit refused to credit Treichler’s testimony as true, finding “significant 

factual conflicts in the record between Treichler’s testimony and objective medical 

evidence.” Id at 1104. “These are exactly the sort of issues that should be remanded to the 

agency for further proceedings.” Id at 1105, citing Andrews v. Shalala, 53 F3d 1035, 1039 

(9th Cir 1995). Although Treichler argued there were no outstanding issues to be resolved 

when his testimony was credited as true, the Ninth Circuit advised that it “assess[es] 

whether there are outstanding issues requiring resolution before considering whether to hold 

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that the claimant’s testimony is credible as a matter of law.” Id, citing Garrison, 759 F3d at 

1020; Connett, 340 F3d at 876. 

This case is distinguishable from Treichler in several crucial respects. First, in 

Treichler, the court was unable to meaningfully review the ALJ’s credibility finding 

because the ALJ failed to provide any reasons. Here, the ALJ gave specific reasons for 

rejecting the opinions of Drs. Conti and Perrillo which, as discussed above, are not 

supported by the record. It is not appropriate to “remand for the purpose of allowing the 

ALJ to have a mulligan.” Garrison, 759 F3d at 1021. Second, in Treichler, the claimant’s 

testimony conflicted with the objective medical evidence. Here, as discussed above, the 

opinions of Drs. Conti and Perrillo do not conflict with Cochell’s ADL. Third, as the 

Commissioner points out, Cochell does not dispute the ALJ’s finding on his own credibility 

but rather the weight given to the opinions of his physicians. As the Ninth Circuit has 

repeatedly stated, “[w]here the Commissioner fails to provide adequate reasons for rejecting 

the opinion of a treating or examining physician, we credit that opinion ‘as a matter of 

law.’” Lester, 81 F3d at 834, quoting Hammock v. Bowen, 879 F2d 498, 502 (9th Cir 1989). 

The record here is fully developed and free from ambiguities, conflicts, or issues of 

fact. No useful purpose would be served by further administrative proceedings. The ALJ 

failed to provide legally sufficient reasons for rejecting the opinions of Drs. Conti and 

Perrillo, and both physicians opined that the limitations from Cochell’s severe impairments 

render him incapable of substantial gainful employment. Tr. 839 (Dr. Conti), 866 

(Dr. Perrillo). 

If those medical opinions are credited as true, the ALJ would be required to find 

Cochell disabled. Dr. Conti expressed that Cochell’s difficulties would cause him to call in 

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sick or go home early several times per month. Tr. 840. The VE testified that an employee 

who missed more than one day of work per month would be unable to sustain competitive 

employment, and that an employer of unskilled workers would probably tolerate even fewer 

absences. Tr. 58-59. The VE thus “answered a question describing a hypothetical person 

with the RFC that the claimant would possess were the relevant testimony taken as true.” 

Garrison, 759 F3d at 1021 n28, citing Lingenfelter, 504 F3d at 1041; Varney v. Sec’y of 

Health & Human Servs., 859 F2d 1396, 1401 (9th Cir 1988). Accordingly, a remand for an 

award of benefits is appropriate.

ORDER

For the reasons discussed above, the Commissioner’s Motion to Remand (docket 

#26) is DENIED, and the Commissioner’s decision is REVERSED and REMANDED 

pursuant to sentence four of 42 USC § 405(g) for an award of benefits.

DATED September 8, 2015.

s/ Janice M. Stewart

Janice M. Stewart

United States Magistrate Judge

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