Popa v. Berryhill

• Citation: 872 F.3d 901
• Decision Date: 18 August 2017
• Docket Number: No. 15-16848.,15-16848.
• Parties: Tina Marie POPA, Plaintiff–Appellant, v. Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

872 F.3d 901

Tina Marie POPA, Plaintiff–Appellant,
v.
Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant–Appellee.

No. 15-16848.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 16, 2017 San Francisco, California
Filed August 18, 2017
Amended September 20, 2017

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.

Before: Sidney R. Thomas, Chief Judge, Kim McLane Wardlaw, Circuit Judge, and

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Brian M. Morris,^** District Judge.

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 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.

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Hart conflicted with 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 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 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

872 F.3d 905

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