Tina Popa v. Nancy Berryhill , 872 F.3d 901 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TINA MARIE POPA, No. 15-16848
Plaintiff-Appellant,
D.C. No.
v. 2:14-cv-02681-
DKD
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Arizona
David K. Duncan, Magistrate Judge, Presiding
Argued and Submitted May 16, 2017
San Francisco, California
Filed August 18, 2017
Before: Sidney R. Thomas, Chief Judge, Kim McLane
Wardlaw, Circuit Judge, and Brian M. Morris,* District
Judge.
Opinion by Judge Morris
*
The Honorable Brian M. Morris, United States District Judge for the
District of Montana, sitting by designation.
2 POPA V. BERRYHILL
SUMMARY**
Social Security Benefits
The panel reversed the district court’s decision affirming
the Commissioner of Social Security’s denial of an
application for disability insurance benefits and supplemental
security income benefits under Titles II and XVI of the Social
Security Act, and remanded for an award of benefits.
The panel held that the administrative law judge
committed legal error when she failed to provide legally
sufficient reasons to discount the opinion of examining
psychologist Dr. Hart, who opined that claimant likely would
not maintain regular attendance at work. The panel noted that
the ALJ provided no explanation as to why claimant’s ability
to attend church weekly in the past, shop for groceries, and
watch television, established that she possessed the ability to
maintain regular attendance at work.
The panel also held that the ALJ failed to provide
germane reasons to discount the opinion of nurse practitioner
Dr. Sorrell, who possessed a Ph.D. in nursing and treated
petitioner for more than two years. The panel held that the
fact Dr. Sorrell, an “other source,” provided information in a
Commissioner-supplied check-box form was not a sufficient
reason to reject her opinions, much less a germane reason.
The panel further held that the ALJ erred when she
discounted claimant’s own testimony based on what the ALJ
deemed to be inconsistent statements. The panel held that in
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
POPA V. BERRYHILL 3
this case, a single discrepancy failed to justify the wholesale
dismissal of claimant’s testimony.
The panel held that the ALJ’s error in discounting the
opinions of Dr. Hart and Dr. Sorrell permeated her
hypothetical to the vocational expert regarding the
availability of a significant number of jobs in the national
economy that claimant could perform. The panel found that
an award of benefits was warranted because in response to
counsel’s questions, the vocational expert stated that a person
with the moderate limitations noted by Dr. Sorrell could not
perform work that exists in significant numbers in the
national economy.
COUNSEL
Mark Caldwell (argued), Phoenix, Arizona, for Plaintiff-
Appellant.
Michael R. Tunick (argued), Assistant Regional Counsel;
David Morado, Regional Chief Counsel, Seattle Region X;
John S. Leonardo, United States Attorney; Office of the
General Counsel, Social Security Administration, Seattle,
Washington, for Defendant-Appellee.
4 POPA V. BERRYHILL
OPINION
MORRIS, District Judge:
Tina Marie Popa appeals the district court’s decision
affirming the Commissioner of Social Security’s denial of her
application for disability insurance benefits and supplemental
security income benefits under Titles II and XVI of the Social
Security Act. We possess jurisdiction pursuant to 28 U.S.C.
§ 1291. We reverse and remand for an award of benefits.
I
Tina Marie Popa applied for supplemental security
income (“SSI”) benefits under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1381 et seq., on May 9, 2011.
Popa alleges disability due to mood disorder, bipolar disorder,
anxiety, depression, and chronic total-body pain. Popa alleges
a disability onset date of December 21, 2010. The
Commissioner of Social Security (“Commissioner”) denied
Popa’s application initially and on reconsideration.
Popa requested a hearing before an administrative law
judge (“ALJ”). Id. The ALJ conducted a video hearing on
April 18, 2013. Popa was represented by counsel. The ALJ
reviewed the relevant medical evidence. The ALJ received
testimony from Popa and an impartial vocational expert. The
ALJ denied Popa’s application based on her determination
that Popa could perform jobs that exist in significant numbers
in the national economy.
Popa requested that the Appeals Council review the ALJ’s
decision. The Appeals Council denied Popa’s request for a
review of the ALJ’s decision on October 3, 2014. The ALJ’s
POPA V. BERRYHILL 5
decision became the final decision of the Commissioner when
the Appeals Council denied review. 42 U.S.C. § 405(h);
20 C.F.R. § 416.1481.
Popa filed a complaint seeking judicial review of the
Commissioner’s final decision on December 11, 2014. The
District Court concluded that the ALJ had committed no legal
error and that substantial evidence supported the the ALJ’s
decision. The District Court affirmed the ALJ’s decision and
entered judgment in the Commissioner’s favor on July 21,
2015. Popa filed this timely appeal on September 15, 2015.
II
Popa’s appeal focuses on her mental impairments that
include bipolar disorder, depression, and anxiety that she
claims inhibit her ability to work. The ALJ reviewed several
medical evaluations of Popa. State agency psychologist
Ashley B. Hart, Ph.D., conducted a psychological
consultative examination of Popa on September 8, 2011. Dr.
Hart diagnosed Popa with chronic mood disorder. Dr. Hart
offered a number of opinions regarding Popa’s functional
capacity that suggested that Popa could perform basic tasks,
understand instructions, respond appropriately to coworkers
and supervisors, maintain socially appropriate behavior, be
aware of normal hazards in the work place, and respond
appropriately to changes in the work place setting. Dr. Hart
opined, however, that Popa was “not likely to maintain
regular attendance” [at work] due to [her] mental health.”
The ALJ assigned “substantial weight” to Dr. Hart’s
assessment, except for Dr. Hart’s finding that Popa likely
would not maintain regular attendance at work. The ALJ
determined that this finding by Dr. Hart conflicted with
6 POPA V. BERRYHILL
Popa’s “considerable activities of daily living.” The ALJ
cited three examples: (1) Popa’s ability “to attend church
every week,” (2) Popa’s ability to “watch[] television,” and
(3) Popa’s ability to “shop[] for groceries.”
Certified Nurse Practitioner Dr. Tanya Sorrell, Ph.D.,
treated Popa for depression and mood swings at the Arizona
Counseling and Treatment Service beginning in May 2011.
The record failed to establish Dr. Sorrell’s professional
qualifications. Popa informed the Court that Dr. Sorrell
obtained a doctorate degree in nursing from the University of
Arizona. The Commissioner never challenged this assertion.
Popa lived in a women’s shelter at the time that Dr.
Sorrell treated her. Popa reported a history of
methamphetamines abuse, but she had stopped using
methamphetamine in December 2010. Dr. Sorrell diagnosed
Popa with mood disorder. Dr. Sorrell prescribed psychiatric
medication for Bipolar II Disorder on May 19, 2011. Dr.
Sorrell continued to treat Popa for Bipolar II Disorder
through 2012.
Dr. Sorrell assessed Popa’s residual functional capacity
on October 11, 2012. Dr. Sorrell completed a check-box form
provided by the Commissioner entitled “Supplemental
Questionnaire as to Residual Functional Capacity.” Dr.
Sorrell checked boxes indicating: (1) that Popa had no
limitations in her ability to understand and remember short,
simple instructions; (2) that Popa had slight limitations in her
ability to carry out short, simple instructions, and in her
ability to interact appropriately with the public; and (3) that
Popa had moderate limitations in her ability to understand
and remember detailed instructions, make judgments on
simple work-related decisions, interact appropriately with
POPA V. BERRYHILL 7
supervisors and co-workers, respond appropriately to work
pressures in a usual work setting, and respond appropriately
to changes in a routine work setting. The Supplemental
Questionnaire defined a “moderate” limitation as a limitation
that “would reduce [the claimant’s] ability to function (10%
of task).”
The ALJ assigned Dr. Sorrell’s opinion “reduced weight.”
The ALJ failed to include the moderate limitations described
by Dr. Sorrell in the hypothetical that she presented to the
vocational expert. State agency medical consultant Dr. Hubert
R. Estes, M.D., reviewed Popa’s medical records on February
6, 2012. Dr. Estes concluded that Popa suffered no severe
mental impairments. The ALJ assigned “significant” weight
to Dr. Estes’s opinion.
Popa testified at a hearing before the ALJ about her daily
activities. Popa testified that she lives with her mother. Popa
testified that she sometimes cooks, cleans, does dishes, and
shops for groceries. Popa testified that she watches television
with her mother about two hours per day. Popa testified that
she does not drive because her driver’s license was suspended
in 2003. Popa testified that she used to attend church, but
stopped in 2012.
Popa reported that she takes psychiatric medications
prescribed by Dr. Sorrell. Popa testified that the medications
make her sleep a lot and that once or twice a week she will
“sleep right through . . . to the next day.” Popa testified that
her memory was poor, and that she has a hard time focusing
on tasks.
Popa testified about her struggles with depression. Popa
testified that she “suffer[s] real bad with depression.” Popa
8 POPA V. BERRYHILL
testified that she is not suicidal, but she doesn’t “care to be
alive.” Popa testified that she does not like being around other
people.
Popa testified about her complaints of constant full-body
pain. Popa testified that on a scale of one to ten, her average
pain level is an eight or nine with medication. Popa testified
that she can walk for about five minutes, sit for “maybe” one
hour, and lift maybe 20 to 30 pounds. The ALJ presented a
hypothetical question to a vocational expert. The ALJ asked
the vocational expert to consider a 49-year-old person with a
bachelor of arts degree; previous work experience that was
skilled and sedentary; the ability to sit for up six hours, stand
for up to six hours in an eight hour day, and to walk for up to
six hours in an eight hour day; the ability occasionally to
stoop; the ability occasionally to lift and to carry 20 pounds;
the ability frequently to lift and carry 10 pounds; climb stairs,
the ability to climb stairs, but not ladders; and not the ability
to kneel, crouch, and crawl. The ALJ also asked the
vocational expert to assume that the person could not perform
a job that requires good visualization in very dim lighting,
and the person must avoid concentrated exposure to humidity,
heights, and moving machinery. With respect to mental
limitations, the ALJ asked the vocational expert to assume the
person could only “understand, remember, and carry out
simple job instructions.” The vocational expert responded that
such a hypothetical person would be able to perform light,
unskilled work that exists in significant numbers in the
national economy, such as a janitor/cleaner, a fast food
worker, and a cashier.
Popa’s counsel also presented a hypothetical question to
the vocational expert. Popa’s counsel asked the vocational
expert whether the person described by the ALJ could
POPA V. BERRYHILL 9
perform work that existed in significant numbers in the
national economy, if that person also possessed the “moderate
limitations” noted by Dr. Sorrell, and those moderate
limitations would cause the person to be “off task 10 percent”
of the time. The vocational expert responded that “if the
person is off task six minutes out of every hour,” she could
not perform work that exists in significant numbers in the
national economy because the person “would not be
competitively employable.”
The ALJ issued a written decision denying Popa’s
disability benefits. The ALJ determined that Popa suffered
from the following severe impairments: vision impairment,
peripheral neuropathy, obesity, bipolar disorder, depression,
and anxiety. The ALJ concluded, however, that Popa’s
impairments did not meet or equal an impairment listed in
20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ
determined that Popa possessed the residual functional
capacity to perform light work as defined in 20 C.F.R.
§ 416.967(b), subject to the mental limitation that Popa could
only “understand, remember and carry out simple job
instructions.” The ALJ acknowledged that Popa could not
perform any of her prior work. The ALJ determined,
however, that Popa could work as a janitor/cleaner, fast food
worker, and cashier, or perform other jobs that existed in
significant numbers in the national economy, based on a
hypothetical that the ALJ posed to the vocational expert.
The Appeals Council declined to review the ALJ’s
disability determination. Popa appealed to the United States
District Court for the District of Arizona, which affirmed the
ALJ’s denial of disability. Popa now appeals.
10 POPA V. BERRYHILL
III
The Social Security Administration has established a five-
step sequential process to determine whether an applicant
qualifies as disabled within the meaning of the Social
Security Act. See Batson v. Comm’r of Soc. Sec. Admin.,
359 F.3d 1190, 1194 (9th Cir. 2004); 20 C.F.R. § 416.920.
The five steps address the following issues: (1) whether the
claimant presently works in substantial gainful activity;
(2) whether the claimant’s impairment, or a combination of
impairments, qualifies as severe; (3) whether the impairment,
or combination of impairments, equals an impairment listed
in the regulations; (4) whether the claimant’s residual
functional capacity allows her to perform her past relevant
work; and (5) whether significant numbers of jobs exist in the
national economy that the claimant can perform. See Keyser
v. Comm’r of Soc. Sec. Admin., 648 F.3d 721, 724–25 (9th
Cir. 2011).
In considering whether an applicant qualifies as disabled,
an ALJ may reject the uncontradicted medical opinion of an
examining psychologist only if the ALJ provides “clear and
convincing” reasons supported by substantial evidence in the
record. Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995).
An ALJ may discount the opinion of an “other source,” such
as a nurse practitioner, if she provides “reasons germane to
each witness for doing so.” Molina v. Astrue, 674 F.3d 1104,
1111 (9th Cir. 2012). The ALJ committed legal error when
she failed to provide legally sufficient reasons to discount the
opinions of examining psychologist Dr. Hart, and when she
failed to provide germane reasons to discount the opinions of
treating nurse practitioner Dr. Sorrell. The ALJ rejected Dr.
Hart’s opinion that Popa was “not likely to maintain regular
attendance [at work] due to [her] mental health.” The ALJ
POPA V. BERRYHILL 11
stated that Dr. Hart’s opinion lacked “substantial weight,”
and, as a result, declined to include the limitation described
by Dr. Hart in the hypothetical that she presented to the
vocational expert.
The ALJ determined that Dr. Hart’s opinion conflicted
with Popa’s “considerable activities of daily living.”
Specifically, the ALJ cited as conflicts Popa’s ability to
“attend church every week,” Popa’s ability to “watch[]
television,” and Popa’s ability to “shop[] for groceries.” No
medical evidence in the record contradicts Dr. Hart’s opinion.
Dr. Estes simply opined that Popa suffered no severe
impairments. Dr. Estes’s opinion of no severe impairments
does not necessarily conflict with Dr. Hart’s opinion
regarding Popa’s minimal limitations that would affect
Popa’s ability to maintain regular attendance at work.
The ALJ failed to provide clear and convincing reasons
supported by substantial evidence for rejecting Dr. Hart’s
opinion that Popa likely would not maintain regular
attendance at work. Lester, 81 F.3d at 830. The ALJ simply
stated conclusions that do not constitute the type of
substantial evidence necessary to overcome Dr. Hart’s
opinion. The ALJ stated that Dr. Hart’s opinion conflicted
with Popa’s “considerable activities of daily living.” The
activities cited by the ALJ were not inconsistent with
regularly attending a full-time job. Furthermore, the ALJ
provided no explanation as to why Popa’s ability to attend
church weekly in the past, shop for groceries, and watch
television, establish that Popa possesses the ability to
maintain regular attendance at work. Finally, the ALJ ignored
entirely Popa’s uncontradicted testimony that she had stopped
attending church in 2012.
12 POPA V. BERRYHILL
In this regard, the ALJ also discounted Popa’s own
testimony based on what the ALJ deemed to be inconsistent
statements. Popa testified that she does not drive because her
driver’s license had been suspended in 2003. Popa told Dr.
Hart that “[s]he does drive.” The ALJ cites to no other alleged
inconsistencies in Popa’s testimony. An ALJ may consider
inconsistent statements by a claimant in assessing her
credibility. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th
Cir. 2001). A single discrepancy fails, however, to justify the
wholesale dismissal of a claimant’s testimony. See Robbins
v. Soc. Sec. Admin., 466 F.3d 880, 883–84 (9th Cir. 2006).
The ALJ similarly failed to explain her decision to assign
“reduced weight” to Dr. Sorrell’s opinions regarding Popa’s
moderate limitations in five functional areas. Dr. Sorrell
opined that Popa suffered moderate limitations, defined as off
task 10 percent of the time. The ALJ failed to include the
moderate limitations described by Dr. Sorrell in the
hypothetical that she presented to the vocational expert.
The ALJ afforded “reduced weight” to Dr. Sorrell’s
opinions for the following reasons: (1) Dr. Sorrell produced
her opinion regarding Popa’s moderate limitations in a form
“consisting largely of checked boxes without further
explanation;” (2) the “severity” of the limitations conflicted
with other medical evidence in the record; (3) Dr. Sorrell’s
opinions conflicted with Popa’s daily activities; and (4) Dr.
Sorrell’s findings possibly resulted from sympathy.
We pause to note that Dr. Sorrell possesses a Ph.D in
nursing. The Social Security regulations provide an out-dated
view that consider a nurse practitioner as an “other source.”
Molina, 674 F.3d at 1111. The record indicates that Dr.
Sorrell served as Popa’s primary care medical provider on a
regular basis for more than two years. Dr. Sorrell started
POPA V. BERRYHILL 13
seeing Popa in May of 2010 and continued these
examinations through the administrative hearing. No other
medical professional actually treated Popa. Dr. Hart
conducted a single examination and Dr. Estes simply
reviewed Popa’s medical records. The ALJ’s decision to
disregard Dr. Sorrell’s testimony makes little sense in light of
the prominent role that Dr. Sorrell played in Popa’s medical
treatment. The Social Security regulations require that the
ALJ provide “germane reasons” to reject Dr. Sorrell’s
opinions. The ALJ failed to provide “germane reasons.”
The ALJ instead justified her decision to discount Dr.
Sorrell’s opinions due to the fact that Dr. Sorrell listed her
opinions on a check-box form provided by the Commissioner
as part of Dr. Sorrell’s assessment of Popa’s residual
capacity. The Commissioner, however, provided the check-
box form. More importantly, Dr. Sorrell had treated Popa as
her primary care medical provider for nearly 18 months by
the date of the residual capacity assessment. Notwithstanding
the ALJ’s access to Popa’s treatment records, the ALJ failed
to provide germane reasons to discount Dr. Sorrell’s opinions
due to her use of a check-box form provided by the
Commissioner under these circumstances. See Molina,
674 F.3d at 1111. Simply put, the fact Dr. Sorrell, an “other
source,” provided information in a Commissioner-supplied
check-box form provides no reason to reject her opinions,
much less a germane reason.
The ALJ next discounted Dr. Sorrell’s opinions because
they conflicted with other medical evidence in the record. In
particular, the ALJ compared Dr. Sorrell’s finding of
moderate limitations with Dr. Hart’s finding of minimal
limitations. The ALJ provided little illumination of this
alleged contrast other than repeating that Popa’s daily
14 POPA V. BERRYHILL
activities included “attend[ing] church every week” and
“shop[ping] for groceries.” The ALJ fails to explain,
however, why moderate limitations would prevent Popa from
attending church and shopping for groceries. The ALJ
ignored Popa’s testimony that she had stopped attending
church in 2012. Lastly, the ALJ noted her suspicion that Dr.
Sorrell’s opinions may have derived from “sympathy” for
Popa. The ALJ offered no facts to support her suspicion. An
ALJ “may not assume that doctors routinely lie in order to
help their patients collect disability benefits.” Lester, 81 F.3d
at 832.
IV
The ALJ improperly discounted the opinions of Dr. Hart
and Dr. Sorrell. The ALJ’s error in discounting these opinions
permeated her hypothetical to the vocational expert regarding
the availability of a significant number of jobs in the national
economy that Popa could perform. Popa’s counsel asked the
vocational expert whether the hypothetical person described
by the ALJ could perform work that existed in significant
numbers in the national economy, if that person also had the
“moderate limitations” noted by Dr. Sorrell. Popa’s counsel
explained that those moderate limitations would cause the
person to be “off task 10 percent” of the time. The vocational
expert responded that “if the person is off task six minutes out
of every hour,” she could not perform work that exists in
significant numbers in the national economy because the
person “would not be competitively employable.” Thus, there
is no need for further proceedings. We reverse and remand
for an award of benefits.
REVERSED; REMANDED for an award of benefits.