NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LISA BARICEVIC, 

Plaintiff-Appellant, 

 v. 

NANCY A. BERRYHILL, Acting 

Commissioner Social Security, 

Defendant-Appellee.

No. 16-16850 

D.C. No. 2:15-cv-01541-KJN 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Kendall J. Newman, Magistrate Judge, Presiding

Submitted April 23, 2018**

Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges. 

Lisa Baricevic appeals the district court’s judgment affirming the 

Commissioner of Social Security’s denial of Baricevic’s application for disability 

insurance benefits and supplemental security income under Titles II and XVI of the 

Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. We review de 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

APR 26 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 16-16850 

novo, Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015), and we affirm.

Because Dr. O’Brien’s opinion contradicted Dr. Siy’s opinion regarding 

Baricevic’s functional limitations, the ALJ was required to provide specific and 

legitimate reasons to reject Dr. Siy’s opinion. See Garrison v. Colvin, 759 F.3d

995, 1012 (9th Cir. 2014). First, the ALJ properly rejected Dr. Siy’s opinion 

because the limitations in the opinion were not supported by Dr. Siy’s own 

objective findings, including incomplete evidence of fibromyalgia tender points 

and Dr. Siy’s notes indicating that he only “suspect[ed]” that Baricevic had 

fibromyalgia. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). 

Second, the ALJ reasonably rejected Dr. Siy’s opinion as inconsistent with other 

evidence in the medical record showing only mild tenderness in Baricevic’s left 

shoulder, left shoulder pain explained by a rotator cuff injury, and no history of 

tenderness in other parts of the body. See id. Third, the ALJ properly rejected Dr. 

Siy’s opinion regarding Baricevic’s functional limitations as inconsistent with 

Baricevic’s treatment history showing inconsistent evaluation and treatment for 

pain, and pain largely controlled by therapy and medication. See Revels v. 

Berryhill, 874 F.3d 648, 657 (9th Cir. 2017) (reasoning that the longitudinal 

treatment record is relevant to assessing functional limitations arising from 

fibromyalgia). Fourth, substantial evidence supports the ALJ’s conclusion that Dr. 

Siy’s opinion relied on Baricevic’s subjective complaints. See Tommasetti, 533 
3 16-16850 

F.3d at 1041 (explaining that the ALJ may reasonably reject a treating physician’s 

opinion that relies on the claimant’s self-reports).

The ALJ provided several clear and convincing reasons to discredit 

Baricevic’s testimony regarding the intensity and limiting effects of her symptoms: 

Baricevic’s history of conservative treatment for left shoulder pain; substantial 

gaps in Baricevic’s treatment history; and the effectiveness of treatment at 

reducing Baricevic’s symptoms. See Molina v. Astrue, 674 F.3d 1104, 1112 (9th 

Cir. 2012) (explaining that the ALJ may reject claimant testimony regarding the 

severity of symptoms based on an unexplained or inadequately explained failure to 

seek treatment); Tommasetti, 533 F.3d at 1040 (concluding that the ALJ properly 

discredited claimant testimony regarding severity of symptoms based on 

effectiveness of treatment); Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) 

(including conservative treatment record in the reasons that the ALJ may properly 

rely on to discredit claimant testimony). Baricevic fails to explain how her 

fibromyalgia diagnosis was relevant to her failure to seek pain treatment, and fails 

to cite any legal authority requiring the ALJ to inquire regarding any gaps in her 

treatment. See Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (interpreting SSR 

96-7p) (requiring the ALJ to consider any explanation in the record for a failure to 

seek treatment). Any error in relying on additional reasons to discredit Baricevic’s 

testimony was harmless. See Molina, 674 F.3d at 1115.
4 16-16850 

Substantial evidence supports the ALJ’s conclusion that Baricevic had no 

functional limitations arising from irritable bowel syndrome. See id. at 1111 

(explaining that this court must uphold the ALJ’s decision when substantial 

evidence supports the ALJ’s findings).

AFFIRMED.