FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TINA MARIE POPA,

Plaintiff-Appellant,

v.

NANCY A. BERRYHILL, Acting

Commissioner 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

for the District of Arizona

David K. Duncan, Magistrate Judge, Presiding

Argued and Submitted May 16, 2017

San Francisco, California

Filed August 18, 2017

Amended September 20, 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

In an amended opinion, 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

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

** 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

statements. The panel held that in 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 PlaintiffAppellant.

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 tomood 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 reviewthe 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 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

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 supervisors and co-workers, respond
POPA V. BERRYHILL 7

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 assignedDr. 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 agencymedical 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

testified that she is not suicidal, but she doesn’t “care to be
8 POPA V. BERRYHILL

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; 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

perform work that existed in significant numbers in the
POPA V. BERRYHILL 9

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 SecurityAdministration has established a fivestep 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 consistent 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. This court’s precedents require that the ALJ

provide “germane reasons” to reject Dr. Sorrell’s opinions.

See Molina, 674 F.3d at 1111. 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 as part of Dr. Sorrell’s

assessment of Popa’s residual capacity.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 checkbox form under these circumstances. Id. Simply put, the fact

Dr. Sorrell, an “other source,” provided information in a 

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

activities included “attend[ing] church every week” and

“shop[ping] for groceries.” The ALJ fails to explain,
14 POPA V. BERRYHILL

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.