The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff's appeal from a decision by Defendant Social Security Administration ("the Agency"), denying her application for Supplemental Security Income ("SSI"). Plaintiff claims that the Administrative Law Judge ("ALJ") erred when he:
1) rejected the treating psychologist's opinion; 2) rejected the examining psychiatrist's opinion; 3) rejected the consulting psychologist's opinion; 4) failed to consider Plaintiff's obesity; 5) rejected the treating chiropractor's opinion; and 6) discounted Plaintiff's credibility. For the following reasons, the Court concludes that the ALJ erred and the case is remanded for further proceedings consistent with this decision.
II. SUMMARY OF PROCEEDINGS
Plaintiff applied for SSI on January 23, 2006, alleging that she had been unable to work since April 25, 2005, because of kidney cancer, gall stones, and depression. (Administrative Record ("AR") 7, 119-20, 279.) The Agency denied the application initially and on reconsideration. (AR 67-71, 75-79.) Plaintiff then requested and was granted a hearing before an ALJ. (AR 80, 88-91.) Plaintiff appeared at the hearing with counsel on December 18, 2007, but did not testify. (AR 48-63.) On February 15, 2008, the ALJ issued an unfavorable decision, finding that Plaintiff was not disabled. (AR 7-16.) Plaintiff appealed to the Appeals Council, which denied review. (AR 1-3.) She then commenced this action.
1. The ALJ's Rejection of the Treating Psychologist's Opinion In her first claim of error, Plaintiff contends that the ALJ erred when he rejected the opinion of her treating psychologist, Charles R. Shipley. (Joint Stip. at 3-4.) For the following reasons, the Court disagrees.*fn1
"By rule, the [Agency] favors the opinion of a treating physician over non-treating physicians." Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). In order to reject a treating physician's opinion in favor of a conflicting, non-treating physician's opinion, the ALJ must set forth specific and legitimate reasons, supported by substantial evidence in the record, for doing so. Id. at 632; Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).
Dr. Shipley first saw Plaintiff on May 17, 2006, and conducted hour-long therapy sessions with her every other week over the next 18 months. (AR 22-32, 243-46, 249.) The ALJ reviewed records from only two of those therapy sessions. (AR 14-15.) (It appears that the records from the other therapy sessions were not in the file at the time of the administrative hearing. (AR 14-15.)) As a result, the ALJ concluded that Dr. Shipley was not a "treating" psychologist in the usual meaning of that term. (AR 15.) Based on this fact, and the fact that the two treatment records he had reviewed from Dr. Shipley did not support Dr. Shipley's opinion, the ALJ rejected it. (AR 14-15.) This finding is not supported by the record.
In lieu of Dr. Shipley's opinion, the ALJ relied on the opinion of Dr. Malancharuvil, a non-examining, consulting psychologist who had reviewed the medical records and who testified at the administrative hearing. (AR 14.) Dr. Malancharuvil determined that Plaintiff's psychological problems were minor and did not seriously impact her ability to work. (AR 55-59.) Unfortunately, Dr. Malancharuvil was operating under the same misconception as the ALJ; Dr. Malancharuvil, too, believed that Plaintiff had not been treated by Dr. Shipley. (AR 58.) Thus, his opinion was faulty and the ALJ should not have relied on it.
Having determined that the ALJ erred, the Court must next decide whether the error was harmless. Generally speaking, an error is harmless if it is "inconsequential to the ultimate non-disability determination." See Stout v. Comm'r of Soc. Sec., 454 F.3d 1050, 1055 (9th Cir. 2006) (noting with approval the circuit's line of cases holding ALJ's error is harmless if it is "inconsequential to the ultimate non-disability determination"). The Agency argues, in essence, that the error was harmless because the additional records from Dr. Shipley do not support his opinion that Plaintiff was severely impaired. (Joint Stip. at 4-7.) It also contends that Dr. Shipley's opinion is inconsistent with the medical records from the other mental health specialists. It points out, for example, that Dr. Smith, an examining psychiatrist, found that Plaintiff was only mildly impaired. (Joint Stip. at 6.)
The Court finds the issue relatively close. Having reviewed Dr. Shipley's notes from the 33 therapy sessions, it does not appear to the Court that they support his ultimate conclusion that Plaintiff's psychiatric impairments precluded her from working. Assuming that the ALJ would have seen these records and interpreted them the way the Court has, it is likely that he would have discounted Dr. Shipley's opinion. It is also possible, however, that the ALJ would have arrived at a totally different conclusion regarding Dr. Shipley and this case had he seen the amount of therapy Plaintiff received during the relevant time period.
The same questions exist with regard to Dr. Malancharuvil's opinion. It is difficult to know whether he would have reached the same conclusion had he known that Plaintiff had undergone bi-weekly therapy sessions for 18 months during the relevant period. Where, as here, the Court is uncertain as to the impact of this evidence, it cannot conclude that the ALJ's error was "inconsequential to the ...