                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 03 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

JOHNNY D. AMARO,                                 No. 12-17634

              Plaintiff - Appellant,             D.C. No. 2:12-cv-00213-FJM

 v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security Adiministration,

              Defendant - Appellee.


                   Appeal from the United States District Court
                             for the District of Arizona
               Frederick J. Martone, Senior District Judge, Presiding

                       Argued and Submitted May 13, 2015
                            San Francisco, California

Before: KOZINSKI, PAEZ, and CLIFTON, Circuit Judges.

      Johnny Amaro appeals the district court’s judgment affirming the decision

of an administrative law judge (“ALJ”) denying his application for Disability

Insurance Benefits and Supplemental Security Income. We reverse and remand for

further proceedings.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       Because the ALJ found that a medically determinable impairment could

reasonably be expected to cause Amaro’s symptoms, he could only reject Amaro’s

testimony regarding the severity of those symptoms if he offered “specific, clear

and convincing reasons for doing so.” See Lingenfelter v. Astrue, 504 F.3d 1028,

1036 (9th Cir. 2007) (citation and internal quotation marks omitted). In finding

that a claimant is not credible, an ALJ may consider (among other factors) the

objective medical evidence. See Valentine v. Comm’r Social Sec. Admin., 574 F.3d

685, 693 (9th Cir. 2009); SSR 95-5p. However, a claimant “need not produce

objective medical evidence of the pain or fatigue itself, or the severity thereof.”

Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).

      Here, the ALJ concluded that Amaro’s testimony was inconsistent with the

objective medical evidence, because the record showed 1) “conservative, routine

care . . . with no requests for change,” 2) “[p]hysical examinations [that] were

largely normal,” and 3) MRIs and X-rays showing “mild” and “normal” results.

The ALJ did not cite to any record evidence to sustain the first reason, and

substantial evidence does not support it. Instead, the record shows an aggressive

treatment regimen, in which three separate physicians treated Amaro with

immuno-suppressants that can cause dangerous side effects, with the exception of a

period during which Amaro developed a severe kidney infection and lesions,


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apparently due in part to his use of these drugs. Once recovered, Amaro was

eventually placed again on the same treatment regimen, because the less dangerous

treatment option, Prednisone, had not effectively controlled his symptoms. And,

his treating physicians attempted multiple times1 to place Amaro on Rituxan, a

drug which may only be used once other, less severe treatment options have failed.

      Nor does substantial evidence support the ALJ’s conclusion regarding

Amaro’s physical examinations. Dr. Chhaya observed tenderness, swelling,

decreased range of motion, and warmth in Amaro’s right elbow; tenderness and

decreased range of motion in both wrists (because they are fused); a decreased

range of motion and a swan neck deformity in both of his fifth digits; tenderness,

swelling, and “bogginess” in the majority of his phalanges, as well as a boutonierre

deformity in two; and “digital contractures” as well as tenderness in his foot digits.

      In reaching his conclusion with respect to the X-ray and MRI results, the

ALJ did not note that the X-rays in the record showed arthritis and deformities in

Amaro’s hands, fusion in Amaro’s wrists and, later, abnormalities in his hips.

Additionally, while the MRI results did show “mild” results, they, like the X-rays,

supported a diagnosis of rheumatoid arthritis. In discrediting Amaro’s testimony

regarding the severity of his symptoms because the MRIs and X-rays showed


      1
          Amaro’s insurance appears to have refused to cover Rituxan.
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“mild” erosions and synovitis, the ALJ essentially required Amaro to provide

“objective medical evidence of the pain or fatigue itself, or the severity thereof.”

See Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (quoting Smolen, 80

F.3d at 1282). The ALJ did not otherwise sufficiently support his adverse

credibility finding with specific, clear and convincing reasons.

      The ALJ also erred in failing to give sufficient weight to the opinion of

Amaro’s treating physician, Dr. Chhaya, because he failed to provide “specific and

legitimate reasons that are supported by substantial evidence in the record” for

discrediting Dr. Chhaya’s opinion in favor of the examining physician’s opinion.

See Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995).

      An examining physician’s contradictory opinion can constitute substantial

evidence only if it relies on “independent clinical findings that differ from the

findings of the treating physician.” Orn v. Astrue, 495 F.3d 625, 632 (9th Cir.

2007) (quoting Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985)). A

contradictory opinion by a non-examining physician, by itself, does not constitute

substantial evidence. Lester, 81 F.3d at 831. None of the non-treating physicians’

opinions here constitutes substantial evidence, because two were from non-

examining physicians, and because the one contradictory examining physician’s

opinion, Dr. Young’s, did not offer a different diagnosis and was not based on


                                           4
objective medical tests that Dr. Chhaya did not consider. See Orn, 495 F.3d at 632.

In fact, Dr. Young did not review the X-rays of Amaro's hands and spine before

providing his examining physician’s opinion.

      Substantial evidence does not support the ALJ’s conclusion that Dr.

Chhaya’s opinion was inconsistent with her own treatment notes. Dr. Chhaya’s

treatment notes reflect thorough physical examinations, revealing tenderness,

swelling, decreased range of motion, warmth, bogginess, deformities, and fusion of

Amaro’s wrist joints, as well as an aggressive treatment regimen intended to

address his unabated symptoms. The ALJ did not otherwise provide specific,

legitimate reasons supported by substantial evidence for his determination that Dr.

Chhaya’s opinion was due “little weight.”

      The district court is directed to remand this case to the Commissioner for

further proceedings consistent with this disposition.

      REVERSED AND REMANDED.




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