FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

T I N A M AR I E P O PA , Plaintiff-Appellant ,

v

. NA N CY A. B ER

R YHI LL , Acting Comm issioner of Social Security,

Defendant-Appellee. No. 15-16848

D.C. No. 2:14-cv-02681- DKD

AMENDED OPINION

Appeal from

the United States District Court f or the District of Arizona David K. Duncan, Magistrate Judge, Presiding Argued and Subm itted May 16, 2017 San Francisco, California

F iled August 18, 2017 Am ended Septem

ber 20, 2017 Before: Sidney R. Thom as, Chief Judge, Kim McLane W ardlaw, Circuit Judge, and Brian M. Morris, *

D istrict Judge. Opinion by Judge Morris

* The H onorable Brian M. Morris, United States District Judge for the District of Montana, sitting by designation.P O PA V

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SUMMARY * *

S ocial Security Benefits

In an am ended opinion, the panel reversed the district court’s decision affirm ing the Comm issioner of Social Security’s d enial of an application fo r d i s ability insurance benefits and supplem ental securi ty i ncom e benefits under Ti t les II and XVI of the Social S ecurity Act, and re mand e d for an award of benefits.

The p anel held that the a dm inistrative law judge
comm itted legal error when she failed to provide legally suffi ci e nt reasons to discount the o pinion o f exam ining psychologist Dr. Hart, who opined that claim ant likely would not m aintain regular attendance at work. The panel noted that the ALJ provided n o explanation as to why claim ant’s ability to attend church weekly in the past, shop for gr oceries, and watch television, established that she possessed the ability to
m aintain regular attendance at work.

The pane l also h eld that the ALJ failed to provide germ ane reasons to discount the o pinion of nurse practitioner Dr. Sorrell, who possessed a Ph.D. in nursing an d treated petitioner f

or m ore than two years. Th e p an el held that the fact Dr. Sorrell, an “other source,” provided inform ation in a check-box form was not a sufficient reason to reject her opinions, m

uch less a germ ane reason. The panel further held that the ALJ erred when she discounted claim ant’s o wn testim ony based on what the ALJ deem ed to be inconsistent

** This summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.P O PA V

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statem ents. Th e panel held that in this case, a single discrepancy f

ailed to justify th e wh olesale dism issal o f claim ant’s testim ony.
The panel held that the ALJ’s error in discounting the opinions of D r. H art and Dr. Sorr e l l p erm eated her hypothetical to the vocational expert r e g arding the availability of a significant num ber of jobs in the national
economy that claim ant could perform

. The panel f ound that
an award of b enefits w as warranted because in response to counsel’s q

uestions, the vocational expert stated that a person with the m oderate lim itations noted by Dr. Sorrell could not perform work that exists in significant num bers in the national economy.

C OUNSEL

Mark C aldwell (argued), Phoenix, Ari z o n a , for PlaintiffAppellant.

Michael R

. Tunick ( argued), Assistant Regional Counsel; David Morado, Regional Chief Counsel, Seattle Region X; John S. Leonardo, United States Attorn e y ; Office of the General Counsel, Social Security Administrati o n , S eattle, W ashington, for Defendant-Appellee.P O PA V

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OPINION MORRIS, District Judge:

Tina Marie Pop a appeals the district court’s decision affirming the Comm issioner o f Social Security’s denial of her application for disability insuran ce b e n efits and supplem ental security incom e benefits under Titles II and XVI of the Social Security Act. W e possess j urisdiction pursuant to 28 U.S.C. § 1291. W e reverse and rem and for an award of benefits.

I

Tina Marie Popa applied for suppl emental security incom e (“SSI”) benefits under Title XVI of the Social Sec ur i ty A ct, 42 U.S.C. § § 1381 et seq ., on May 9, 2011. Po p a alleg es disab ility d

u e to m ood disorder, bipolar disorder, anxiety, depression , a

n d chro n ic to tal-b o d

y p ain. Popa alleges
a disab ility onset d ate of Decem b er 21, 2010. The Comm issioner of Social S ecurity (“Commi s s ioner”) denied Popa’s application initially and on reconsideration.
Popa requested a hear i n g before an adm inistrative law judge (“ALJ”). Id

. The ALJ co nducted a video h earing on Ap r il 18, 2013. Popa was represented by counsel. The ALJ reviewe d th e relevant m edical evidence. The ALJ received testim ony from Popa and an im partial vocational expert. The ALJ denied Popa’s application based on her determ ination that Popa could perform jobs that exist in significant num bers in the national economy

.
P o p a req u ested that the Appeals Council rev iew th e AL J ’s decision. The Appeals Council denied Popa’s re qu es t for a review of the A LJ’s decision on O ctober 3, 2014. The ALJ’sP O PA V

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decision becam e th e f

inal d ecision of the Commissioner when the Appeals Counc i l denied review. 42 U.S.C. § 4 05(h); 20 C.F.R. § 416.1481.
Popa filed a c o m

plaint seeking judicial review of the Comm issi o n er’s final decision o n Decem ber 11, 2 014. The District Court concluded that the ALJ h ad comm itted no legal
error and that substantial e v i d e nce supported the ALJ’s decision. The District Court affirm ed the ALJ’s decision and entered judgm ent in the Comm issioner’s favor on July 21, 2015. Popa filed this tim ely appeal on September 15, 2015.

II Popa’s appeal focuses on her m ental im p airm ents that include bipolar disorder, depression, and anxiety that she claim s inhibit her ability to work. T he ALJ reviewed several
m edical evaluations o f Po p a

. State agency psychologist Ashley B

. H art, Ph.D., conducted a psychologi c al consultative exam ination of Popa on Septem ber 8, 2011. Dr. Hart diagnosed Popa wi th chronic m ood disorder. D r. Hart offered a num

ber of opinions regarding Po p a’s functional capacity that suggested that P opa could perform basic tasks, understand instructions, respond appropriately to coworkers and supervisors, m aintain socially appropriate b e havior, be
aware of n orm al hazards in th e wo rk place, and respond appropriately t o c h anges in the work place setting. D r. Hart opi n e d , however, that Popa was “not likely to m aintain regular attendance” [at work] due to [her] m ental health.”

Th e ALJ assigned “substantial w eight” to Dr. Hart’s
assessm ent, except for Dr. H art’s finding that Popa l i k e l y wou ld not m aintain regular attendance at work. The ALJ d et e rm ined that this finding by D r. Hart conflicted withP O PA V

. B ER R YHI LL 6 Popa’s “considerable activities o f dail y l iving.” T he ALJ cited three exam

p les: (1) Popa’s ability “to attend c hurch every week,” ( 2 ) Po pa’s ability to “watch[] television,” and (3) Popa’s ability to “shop[] for groceries.”

Certified Nurse Pra ctitioner Dr. T anya Sorrell, Ph.D., treated P opa for depression and m ood swings at the Arizona Counseling and Treatm ent Serv i ce b eginning in May 2011. Th e record failed to establish Dr. Sorrell’s profession al qualifications. P opa in fo rm ed the C o urt that Dr. Sorrell obtained a doctorate degree in nursing from the University o f Arizona. The Comm issioner never challenged this assertion.
Popa lived in a wom en’s shelter at the tim e that Dr. Sorrell treated her. Popa reported a h istory o f
m eth am phetam ines abuse, but she had stopped using
m etham phetam ine in Decem

b er 2010. Dr. Sorrell diagnosed Popa w ith m ood disorder. Dr. So rr ell prescribed psychiatric
m edication for B ipolar II Di s order on May 19, 2011. Dr. Sorrell continued to treat P opa for B i p o lar II Disorder through 2012.

Dr. Sorrell assessed Popa’s residual functional capacity
on October 11, 2012. D r. Sorrell com pleted a check-box form entitled “Supplem ental Questionnaire as to Residual Functional C apacity.” Dr. Sorrell checked boxes indicating: ( 1 ) that Popa had no limitations in her ability to under s t an d
an d r e m em

ber short, sim

ple instructions; (2) that Popa h ad
s light lim itations in her ability to carry o ut short, s i mp le instructions, and in her ability to interact appropriately with the public; and (3) that P opa had m oderate limitations in her ability to understand and rem em ber detailed i n s tructions,
m ake judgm ents on sim

p le work-related decision s, interact appropriately with supervisors an d co-workers, respondP O PA V

. B ER R YHI LL 7 appropriately to work pressures i n a u sual work setting, and respond ap p r o p riately to changes in a routine work setting. The Supplem ental Questionnaire define d a “m oderate” lim itation as a lim itation that “would reduce [the claim ant’s] ability to function (10% of task).”

The AL J assign ed D r

. S o rrell’s o p inion “reduced weight.” The ALJ failed to include the m oderate lim itations described by Dr. Sorrel l i n the hypothetical that she presented to the
v o cation al exp ert. S t ate ag en cy m edical consultant D r. Hu b ert R. Estes, M.D., reviewed Popa’s m edical records on February 6, 2 0 1 2

. Dr. Estes concluded that Popa suffered no severe m ental im

pairm ents. The ALJ assigned “significant” weight to Dr. Estes’s opinion.
Popa testified at a hearing b efore the ALJ about h er daily activities. Popa testified that she lives with her m other. Popa testified that she som etim es cooks, cleans, does dishes, and shops for groceries. Popa testified that she watches television with her m other about two hours per day. Popa testified that she does not drive because her driver’s license was suspended in 200 3. Po pa testified that she used to attend church, but stopped in 2012.

Po pa reported that she takes psychiatric m edicati o n s prescribed by Dr. Sorrell. Popa testified that the m edications
m ake her sleep a lot and that once or twi c e a week she will “sl e ep right through

. . . to the next day.” Popa testified that her m em ory was poor, and that she has a hard tim e focusing on tasks.
Popa testified about her struggles with dep r ession. Popa testified that she “suffer[s] rea l b a d w ith depression.” Popa testifi e d that she is not suicidal, but she doesn’t “care to beP O PA V

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alive.” Popa testified that she d oes n ot like being around other people.
Popa testified about her com plaints of constant full-body pain. P opa testified that o n a scale of one to ten, her average pain level is an eight or n ine with m edication. Popa testified that she can walk for about five m inutes, sit for “m aybe” o ne h o ur, and lift m aybe 20 to 30 pounds. The ALJ present e d a hypothetical q

uestion to a vocational expert. The ALJ asked the vocational expert to consider a 49-year-old p erson with a bachelor of arts degree; previous wo rk experience that was skilled and sedentary; the ability to sit for up six hours, stand for u p to six hours in an eight hour day, and to walk for up to
s ix hours in an eight hour d ay; the ability occasional ly t o stoop; the ability occasionally to lift and to carry 20 pounds; the ability frequently t o li ft and carry 10 pounds; the ability to c l i mb s tairs, but not ladders; and not the ability to kneel, crouch, and crawl. The ALJ also asked the vocational expert to assum e that the person could not per fo rm a job that requires good visual i z ation in very dim lighting, and the person m

u st av oid concentrated exposure to hum idity, he ig hts, and m oving m achinery. W ith respect to m ental lim itations, the ALJ asked the vocational expert to assum e the p erson could only “understand, rem em ber, and carry out sim p le job instru ctio n s. ” T h e v o cation al exp ert resp o n d e d th at such a hypothetical p erson would b e able to perform light, unskilled work th at exists in significant num bers in the national economy, s u ch as a janitor/cleaner, a fast food worker, and a cashier.
Popa’s counsel also presented a hypothetical question to the v o c ational expert. Popa’s counsel asked the vocational expert whether th e person described by the ALJ could perform work that existed in significant num bers in theP O PA V

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n atio n al econom

y, if that person also p ossessed the “m o d erate lim itations” noted by Dr. S orrell, and those m o derate lim itations would cause the person to be “off task 1 0 percent” of the tim e. The vocational expert responded that “if the p erson is off task six m inutes out of every hour,” sh e c o u l d not perform work that exists in significant num bers in the national economy b ecause the person “wou l d not be
com petitively employable.”

The ALJ issued a written decision denyi n g Popa’s disability benefits. The ALJ determi n ed that Popa suffered from the following severe im pairm ents: vision im

pairm ent, peripheral neuropathy, obesity, b ipolar disorder, depression, and anxiety. Th e ALJ concluded, however, that Popa’s im pairm ent s d i d not m eet or equal an im pairm ent listed in 20 C.F.R. Part 404, Subpart P, Ap p e n d ix 1. The ALJ determ ined th at P o pa possessed the residual functional capacity to perform light wo rk as defined in 20 C.F.R. § 416.967(b), subject to the m ental lim itation that Popa could only “understand, re me m ber and carry out sim

ple job instructions.” The ALJ acknowledged that Popa could not perform any o f h e r prior work. The ALJ determ ined, however, that P opa could work as a janitor/cleaner, fast food worker, an d cashier, or perform other jobs that existed in significant num

bers in the n ation al economy, b ased on a hypothetical that the ALJ posed to the vocational expert.

The Appeals Council d eclined to review the ALJ’s disability determ ination. Popa appealed to the United States District Court for the District of Arizona, which affirm ed the ALJ’s denial of disability. Popa now appeals.P O PA V

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III

T h e S o cial S ecu

rity A dmin istration has established a f iv estep sequential process to determ ine whether an ap plicant quali fi es as disabled within the m eaning of the Social Se cur i ty A ct. See Batson v. Comm’r of Soc. Sec. Admin. , 359 F.3d 1190, 1194 (9th C ir. 2004); 20 C.F.R. § 416.920. The five steps address th e fo l lowing issues: (1) whether the claim ant presently works in substantial gainful activity; (2) whether the claim ant’s im p airm ent , or a com

bination o f im pairm ents, qualifies as severe; (3) whether the im pairm ent,
or com bination of im

pairm ents, equ a l s an im

pairm ent listed in the regulations; (4) wh e ther the claim ant’s residual functional capacity allows her to perform her past rel ev ant work; and (5) whether significant num bers of jobs exist in the national economy that the claim ant can perform

. See Keyser
v. Comm’r o

f S oc. Sec. Admin. , 648 F.3d 721, 724–25 (9th Cir. 2011).

In considering whether an applicant qualifies as disabled,
an ALJ m ay reject the uncontradicted m edical opinion of an exam ining p sy c hologist only if the A LJ provides “clear and convincing” reasons supported b y substantial evidence in the record. L ester v. Chater , 8 1 F.3d 821, 830–31 (9th Cir. 1995). An ALJ m ay discount the o pinion of an “other source,” such
as a nurse practitioner, if she p rovides “reasons germ ane to each witness for doing so.” Molina v. A strue , 674 F.3d 1104, 1111 (9th Cir. 2012 ). The A LJ comm itted legal error when she f ailed to provide legally sufficient reasons to discount the opinions of exam ining psychologist Dr. Hart , and when she failed to p rovide germ ane reasons to discount the opinions o f treating nurse practitioner Dr. Sorrell. The ALJ r ejected Dr. Hart’s opinion that Popa was “not likely to m aintain regular attendance [at work] due to [her] m ental health.” The ALJP O PA V

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stated that Dr

. Hart’s opinion lacked “substantial weight,”
an d , as a result, declined to include the lim itation descri b e d by Dr. Hart in the hypothetical that she pr e s e nted to the vocational expert.

The ALJ determ ined that Dr. Hart’s opinion conflicted with Popa’s “considerable activit i e s of daily living.” Specifically, the ALJ cited as conflicts Po p a ’ s ability to “attend church every week,” Popa’s ability to “watch[] television,” and Popa’s ability to “shop[] for gro c e r ies.” No
m edical evidence in t

h e record contradicts Dr. Hart’s opinion. Dr. Estes sim

ply opined th at Popa suffered no severe im pairme nt s

. Dr. Estes’s opinion of no severe im pairm ents does not necessar i ly c onflict w ith Dr. Hart’s opinion regarding Popa’s m inim al lim itations that would affect Popa’s ability to m aintain regular attendance at work.

The ALJ failed to provide c lear and convincing reasons supported by substant i al evidence for rejecting Dr. Hart’s opinion that Popa li k el y would not m aintain regular attendance at work. Lester , 81 F .3d at 830. The ALJ sim ply st at e d conclusions that do not constitute the type o f substantial evidence necessary to o vercom e Dr. Hart’s opinion. Th e ALJ stated that Dr. Hart’s opinion conflicted with P o p a ’ s “considerable activities of daily living.” The activities cited by the ALJ were not consistent with regularly attending a full-tim e job. F urtherm ore, the ALJ provided no explanation as to why P opa’s ability to attend church weekly in the past, shop for groceries, and watch television, establish that Popa possesses the ability to m aintain regular attendance at work. F inally, the ALJ i gnored entirely Popa’s uncontradicted testim ony that she had stopped attending church in 2012.P O PA V

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In this regard, the ALJ also disc o unted Popa’s o wn testim ony b ased on what the ALJ dee m ed to be inconsistent statem ents. Popa testified that she does not drive because her driver’s license had been suspended in 2003. Popa t o l d Dr. Hart that “[s]he does drive.” The ALJ cites to no other alleged i nconsistencies in Popa’s testim ony. An ALJ m ay conside r inconsistent statem ents by a claim ant in assessing her credibility. Tonapetyan v. Halter , 242 F.3d 1144, 1148 (9th Cir. 2001). A single discrepancy fails, however, to justify the wholesale dism issal of a claim ant’s testim ony. See Robbins
v. Soc. Sec. Admin. , 466 F.3d 880, 8 83

– 84 (9th Cir. 2006). The ALJ sim ilarly failed to expla i n her decision to assign “reduced weight” to D r. Sorrell’s opinions regarding Popa’s
m oderate lim itations in five functional areas. Dr. Sorrell opined that P opa suffered m o d erate lim itations, defined as off task 10 percent of the ti me

. Th e ALJ failed to include the
m oderate lim itations describe d by Dr. Sorrell in the hypothetical that she presented to the vocational expert.

The ALJ afforded “reduced weight” to Dr. S orrell’s opinions for th e following reasons: (1) Dr. Sorrell produced her opinion regarding Popa’s m oderate limitations in a form “cons isting largely of checked boxes without further explanation;” (2) the “severity” of the limitations conflicted with o ther m edical evidence in th e record; (3) Dr. S orrell’s opinions conflicted with Popa’s daily activities; and (4) Dr. Sorrell’s findings possibly resulted fromsym pathy.

W e pause to note that D r. Sorrell possesses a Ph.D in nursing. T he Social Security regulations p rovide an out-dated
v ie w that consider a nurse practitioner as an “other source.” Molina , 674 F .3d at 1111. The record indicates th at Dr

. Sorrell served as Popa’s prim ary care m edical provider on a regular basis for m ore than two years. Dr. Sorr e l l s t artedP O PA V

. B ER R YHI LL 13 seeing Popa in May of 2 010 and continued th e se exam inations through the administrative h e aring. No other
m edical professional actually tre at e d Popa. Dr. Hart conducted a single examination and Dr. Estes sim ply revie wed Popa’s m edical records. The ALJ’s d ecision to disregard Dr. Sorrell’s testim o ny m akes little sense in light o f the prom inent role that Dr. Sorrell played in Popa’s m edical treatm ent. T his court’s prec ed ents require that the ALJ provide “germ ane reasons” to reject Dr. Sorrell’s o pinions. S ee Molina , 6 74 F.3d at 1111. The ALJ failed to p r o v i d e “germ ane reasons.”

The ALJ instead justified h er decision to discount Dr. Sorrell’s opinions due to the fact that Dr. S orrell listed her opinions on a check-box form as part o f D r. S orrell’s
assessment o f Popa’s residu al cap acity

. Mo re im p o rtan tly , D r. Sorrell h ad treated Popa as her prim ary care m edical provider for nearly 18 m o nths b y the date o f the residual capacity
assessm ent. Notwithstanding the ALJ’s a c c ess to Popa’s treatm ent records, the A LJ failed to provide germ ane reasons to discount Dr. So rre l l’s opinions due to her use of a checkbox form under these circum stances. Id. Sim ply put, the fact Dr. Sorrell, an “other sour ce,” p rovided inform ation in a check-box form provides no reason to reject h er o pinions,
m uch less a germ ane reason.
The ALJ next discounted Dr. Sorrell’s opinions because they conflicted with other m edical evidence in the record. In particular, the ALJ co mp ared Dr. Sorrell’s finding o f
m oderate limitations with Dr. Hart’s finding of minim al lim itations. The ALJ provided little illumination of this alleged contrast other than repeating that Popa’ s daily act i v i ties included “attend[ing] church every week” and “shop[p i n g] for groceries.” The A LJ fails to explain,P O PA V

. B ER R YHI LL 14 however, why m oderate lim itations would prevent Popa from attending c hurch and shopping for groceries. The ALJ ignored Popa’s testim ony that she h a d stopped attending church in 2012. Lastly, the A LJ noted her suspicion that Dr. So rrell’s opinions m ay have derived from “sym pathy” fo r Popa. The ALJ offered no facts to support her suspicion. An ALJ “m ay not assum e that doctors routinely l i e i n o rder to help their patients collect disability b enefits.” Lester , 81 F.3d at 832.

IV

The ALJ im

properly discounted the opinions of D r. Hart and Dr. Sorrell. The ALJ’s error in discounting these o p inions perm eated her hypothetical to the vocational expert regarding the availability of a significant num ber ofjobs in the national
economy that Popa could perform

. Popa’s counsel asked the vocational expert whether the hypothetical person described by the ALJ could p e rform work that existed in significant
num bers in the national economy, if that person also had the “m oderate li mi t ations” noted by Dr. Sorrell. Popa’s counsel explained that those m od e rate lim itations would cause the person to be “off task 10 percent” o f the tim e. The vocational expert responded that “if the person is off task six m inutes out of every hour,” she could not p er fo rm work that exists in significant num

bers in the n ational economy b ec ause the person “would not be com p etitively em

ployable.” Thus, there is no need for further proceedings. W e reverse and rem and for an award of benefits.
REVERSED; REMANDED for an award of benefits.