Lisa Baricevic v. NANCY A. BERRYHILL, Acting Commissioner Social Security

NOT FOR PUBLICATION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

-- 1 of 4 --

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

-- 2 of 4 --

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.

-- 3 of 4 --

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.

-- 4 of 4 --