UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DANNY RAY FERGUSON, No. 21-35412

Plaintiff-Appellant, D.C. No. 2:19-cv- 01845-MC v. MARTIN J. O’MALLEY, OPINION Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding

Argued and Submitted April 21, 2023 Portland, Oregon

Filed March 14, 2024 Before: Johnnie B. Rawlinson, Carlos T. Bea, and Jennifer Sung, Circuit Judges.

Opinion by Judge Sung; Dissent by Judge Rawlinson 2 FERGUSON V. O’MALLEY

SUMMARY *

Social Security

The panel reversed the district court’s judgment affirming the Commissioner of Social Security’s denial of claimant’s application for disability benefits, and remanded to the district court with instructions to remand to the administrative law judge (“ALJ”) to reconsider the credibility of claimant’s headache symptom testimony. The panel held that the ALJ failed to provide clear and convincing reasons for rejecting claimant’s symptom testimony regarding the severity of his headaches. The ALJ impliedly found that claimant’s medically determinable impairments could reasonably be expected to cause his headaches. However, in evaluating the medical evidence, the ALJ failed to specify which of claimant’s symptoms were, in the ALJ’s view, inconsistent with the record evidence. The panel rejected the Commissioner’s argument, not asserted by the ALJ, that a claimant must provide independent medical evidence to establish the severity of headaches. The ALJ’s reference to the purported inconsistency between claimant’s headache testimony and his daily activities was not a specific, clear, and convincing reason to discount claimant’s headache testimony because there was no such inconsistency.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. FERGUSON V. O’MALLEY 3

Because the ALJ did not consider Ferguson’s conservative treatment when it discounted his subjective symptom testimony, the district court erred when it affirmed the ALJ’s decision on that ground. Judge Rawlinson dissented because the majority opinion fails to apply the substantial evidence standard of review in evaluating the ALJ’s decision, rewrites the facts, and fails to properly credit the evidence that supports the ALJ’s decision.

COUNSEL Alyson R. Young (argued) and Kevin Kerr, Kerr Robichaux & Carroll, Portland, Oregon, for Plaintiff-Appellant. Daniel P. Talbert (argued), Special Assistant United States Attorney, Social Security Administration, Office of the General Counsel, San Francisco, California; Frederick D. Fripps, Special Assistant United States Attorney; Willy Le, Acting Regional Chief Counsel, Seattle Region X; Renata Gowie, Civil Division Chief; Scott E. Asphaug, Acting United States Attorney; Social Security Administration, Office of the General Counsel, Seattle, Washington; Kevin C. Danielson, Assistant United States Attorney, United States Department of Justice, United States Attorney’s Office, Portland, Oregon; for Defendant-Appellee. 4 FERGUSON V. O’MALLEY

OPINION SUNG, Circuit Judge:

Danny Ray Ferguson seeks judicial review of a denial of Social Security benefits. The district court affirmed the denial of benefits, and Ferguson timely filed this appeal. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s order. Smartt v. Kijakazi, 53 F.4th 489, 494 (9th Cir. 2022) (citation omitted). The only issue pre