                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                         APR 26 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

LISA BARICEVIC,                                 No.    16-16850

                Plaintiff-Appellant,            D.C. No. 2:15-cv-01541-KJN

 v.
                                                MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,

                Defendant-Appellee.

                  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).
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                                     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                                   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.




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