IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

ANTONIO NERI DUE, 

Plaintiff, 

v. 

CAROLYN W. COLVIN, 

COMMISSIONER of Social Security 

Defendant. 

JONES, J., 

Eugene Division 

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6: l 5-CV-00049-JO 

OPINION AND ORDER 

Plaintiff Antonio Neri Due ("Due") appeals the Commissioner's decision denying his 

concunent applications for disability insurance benefits and supplemental security income under 

Titles II and XVI of the Social Security Act. The court has jurisdiction under 42 U.S.C. § 405(g). 

I affirm the Commissioner's decision. 

PRIOR PROCEEDINGS 

Due received Title XVI benefits from November 1992 until October 2003. He filed several 

subsequent unsuccessful applications under Title II and Title XVI. In his cutTent applications, Due 

alleged he became disabled on April l, 2008, primarily from mental impahments causing him to 

experience difficulty focusing, multitasking, remaining calm, and controlling anger. He also alleged 

various physical ailments. Admin. R. 19, 170. 

OPINION AND ORDER 

Case 6:15-cv-00049-JO Document 25 Filed 04/19/16 Page 1 of 16
Due satisfied the insured status requirements of the Social Security Act through September 

30, 2013, and must show that he was disabled on or before that date to prevail on his Title II claim. 

42 U.S.C. § 423(a)(l)(A); Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998). Accordingly, the 

relevant period for his Title II claim runs from April 2008 through September 2013. The relevant 

period for his Title XVI claim runs from the protective filing date of his application in June 2010 

through the date of the ALJ's decision. Admin. R. 19. 

The ALJ applied the five-step sequential disability determination process described in the 

regulations. See Bo>nn v. Yuckert, 482 U.S. 137, 140 (1987). The ALJ found Due's ability to 

perform basic work activities limited by carpal tunnel syndrome, depression, personality disorder, 

and anxiety disorder. Admin. R. 22. The ALJ found that Due failed to establish the criteria for any 

of the presumptively disabling conditions listed in Appendix 1 of 20 C.F.R. Pait 404, Subpart P 

("Listings of Impairments"). Admin. R. 22. The ALJ found that, despite his impairments, Due 

retained the residual functional capacity ("RFC") to perform work at all levels of exertion, excluding 

work that required spelling or public contact or that involved more than occasional interaction with 

co-workers. In addition, the ALJ found that Due could not perform jobs that involved exposure to 

environmental irritants such as smoke, dust, and fumes. The ALJ found Due could frequently 

engage in gripping, grasping, and fine manipulation, but could not do work that required him to 

engage in such activities constantly. Admin. R. 24. 

The vocational expert ("VE") testified that a person having Due's age, education, work 

experience, and RFC could perform the activities required in occupations such as linen sorter, circuit 

board assembler, and lot attendant, which represent hundreds of thousands of jobs in the national 

economy. Admin. R. 30, 609-611. Accordingly, the ALJ concluded that Due was not disabled 

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within the meaning of the Social Security Act. Admin. R. 31. 

STANDARD OF REVIEW 

The district court must affirm the Commissioner's decision if it is based on proper legal 

standards and the findings of fact are supported by substantial evidence in the record as a whole. 42 

U.S.C. § 405(g); Batson v. Comm 'r a/Soc. Sec. Adm in., 359 F.3d 1190, 1193 (9th Cir. 2004). Under 

this standard, the Commissioner's factual findings must be upheld if supported by inferences 

reasonably drawn from the record even if evidence exists to support another rational interpretation. 

Batson, 359 F.3d at 1193; Andrews v. Shala/a, 53 F.3d 1035, 1039-40 (9th Cir. 1995). 

DISCUSSION 

I. Claims of Error 

The claimant bears the burden of showing that the ALJ erred and that any e11'or was hmmful. 

}vfcLeod v. Astrue, 640 F.3d 881, 886-87 (9th Cir. 2011). Due contends the ALJ improperly 

discounted his credibility and the opinions of Jerome S. Gordon, Ph.D., Aajan Sattar, M.D., and 

Salvador Ortega, M.D., regarding functional limitations from his mental impairments. He contends 

these e!1'ors were hmmful because they led the ALJ to e11'oneously conclude that Due did not satisfy 

the criteria for any of the presumptively disabling mental conditions in the Listing oflmpairments 

and to assess his RFC in a manner that did not accurately reflect his limitations in mental functions. 

As a result, Due argues, the ALJ elicited testimony from the vocational expert with faulty 

hypothetical assumptions that did not accurately reflect the limitations that prevent him from 

working. 

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II. Credibility Determination 

In his written application, Due alleged that his mental impairments caused him to become 

distracted and ang1y easily, to lose focus, and to have difficulty staying on task. Due alleged he had 

constant pain in the lower back and neck made worse by walking, sitting, and bending over. He said 

he required one or two naps a day, each lasting up to 3 hours. Admin. R. 178. At the administrative 

hearing, Due testified that he had limited use of his hands, was afraid to be around other people or 

in a confined area, did not feel safe in public without his dog or his wife, and had difficulty paying 

attention, remembering things in the short te1m, and completing tasks. Admin. R. 587, 588, 593, 

598, 601, 603-04. Due said that smoke and certain odors made it difficult for him to breath. 

Admin. R. 594. 

The ALJ believed some ofDue's subjective statements. For example, the ALJ limited Due's 

RFC assessment by precluding work involving exposure to smoke or fumes to accommodate his 

alleged difficulty breathing, limiting work involving fine manipulation to accommodate his carpal 

tunnel symptoms, and limiting work involving interactions with the public and coworkers to 

accommodate his social anxiety symptoms. Admin. R. 24. The ALJ discounted Due's credibility 

to the extent he claimed that he had additional limitations in functions such as walking, bending, 

sitting, and maintaining attention and that his symptoms were so debilitating that they left him unable 

to work full time within the limitations of his RFC assessment. 

An adverse credibility determination must include specific findings supported by substantial 

evidence and a clear and convincing explanation. Carmickle v. Comm 'r, Soc. Sec. Adm in., 533 F.3d 

1155, 1160 (9th Cir. 2008); Smolen v. Chafer, 80 F.3d 1273, 1281-82 (9th Cir. 1996). The findings 

must be sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily 

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discredit the claimant's testimony. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). In 

assessing credibility, an ALJ must consider all the evidence in the case record, including the 

objective medical evidence, the claimant's treatment history, medical opinions, daily activities, work 

history, the observations of third paiiies with knowledge of the claimant's functional limitations, and 

any other evidence that bears on the consistency and veracity of the claimant's statements. 

Tommasetti, 533 F3d at 1039; Smolen, 80 F3d at 1284; Social Security Ruling 96-7p, 1996 WL 

374186, at *5. 

The ALJ' s written decision shows that he considered all the evidence pe1iaining to the proper 

factors for assessing Due's credibility. The ALJ found that the objective medical evidence did not 

support some of the limitations Due claimed. Admin. R. 22. For example, the ALJ noted that Due 

claimed limitations from low intellectual functioning but the record did not include objective 

cognitive testing and clinical observations suggested average intellectual function. Adm in. R. 277; 

294, 330. Due claimed limitations from bipolar disorder and attention deficit hyperactivity disorder, 

but these diagnoses were similarly unsupp01ied by clinical findings and appeared to be based entirely 

on his subjective histo1y. Admin. R. 22. 

Similarly, Due claimed significant physical impairments, including knee and back pain, but 

his physical examinations were typically nonnal, other than obesity and hypertension. Admin. R. 

303, 335, 337, 341, 343, 399, 400, 401, 403, 449. Dr. Ortega believed Due's physical limitations 

derived from deconditioning. Admin. R. 27, 398. Due's treatment history reflects mostly routine 

visits and transient complaints of physical symptoms. Admin. R. 22. The ALJ c01Tectly noted that 

no provider had instructed him to limit his activities. Admin. R. 22. Indeed, the record shows that 

Due's health care providers consistently urged him to increase activity to overcome deconditioning 

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and obesity. Admin. R. 398, 404, 423. Conflicts between a claimant's subjective complaints and 

the objective medical evidence mayunde1mine the claimant's credibility. 1'1Jorgan v. Comm 'r of Soc. 

Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). 

The ALJ found that Due's treatment history showed that his mental impairments improved 

with treatment. Admin. R. 23, 26, 266-68, 404, 406. Due reported improved focus and attention 

while on medications and he terminated counseling therapy because of improvements in his 

symptoms. Admin. R. 404. The ALJ could reasonably draw an adverse inference as to the 

credibility of Due's allegations of ongoing debilitating mental impahments from such evidence of 

improvement. lvforgan v. Comm 'r, 169 F3d at 599; Tidwell v. Apfel, 161 F.3d at 601. In addition, 

impairments that are effectively controlled by medication are not disabling. Warre v. Comm 'r of 

Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). 

Due's treatment history also reflects that he failed to follow up with treatment that appeared 

to be effective. Admin. R. 26, 29. In October 2008, Due te1minated mental health treatment with 

Dr. Sattar after showing improvement on medications. There is no evidence that he attempted to 

restart treatment with Dr. Sattar or obtain a refenal from him. Admin. R. 265-268. Progress notes 

from Januaiy 2012 show that Marion County Behavioral Health Services staff refened Due to Work 

Solutions but he failed to respond when contacted for services. Admin. R. 504. In July 2012, 

Marion County Behavioral Health Services discharged him from therapy when he failed to show up 

for group and individual therapy and medication management services. He did not respond when 

staff attempted to re-engage him in services. Admin. R. 503. A claimant's unexplained failure to 

seek treatment or follow a course of treatment may cast doubt on the sincerity of his disability 

claims. Flaten v. Sec'y of Health & Human Serv., 44 F.3d 1453, 1464 (9th Cir. 1995). When a 

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Case 6:15-cv-00049-JO Document 25 Filed 04/19/16 Page 6 of 16
claimant makes subjective claims of disabling symptoms, but fails to comply with prescribed 

treatment, an ALJ may reasonably find the subjective statements unjustified or exaggerated. Orn 

v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007); Tonapetyan v. Halter, 242F.3d 1144, 1147-48 (9th Cir. 

2001). 

The ALJ also drew an adverse inference as to the credibility of Due's statements concerning 

the intensity, persistence, and limiting effects of his alleged symptoms because Due engaged in daily 

activities that showed he was not as limited as he claimed. Admin. R. 25. An ALJ may find that 

activities of daily living detract from a claimant's subjective statements when the activities contradict 

the subjective claims. Orn v. Astrue, 495 F.3d at 639. 

Due was reportedly able to clean, shop, care for his son, cook meals, mow the lawn, work 

in the yard, andindependentlyperfotmselfcare and hygiene. Admin. R. 171-173, 223. He was able 

to pay bills, count change, handle bank accounts and use a checkbook. Admin. R. 157. He emolled 

in school in 2008. Admin. R. 273. The ALJ could rationally conclude that these activities were 

inconsistent with Due's subjective claims of debilitating limitations in attention, focus, memory, 

persistence with tasks, use of his hands, walking, bending, and so forth. 

Due worked as a karaoke disc jockey and a canne1y employee and emailed in school during 

the time he claimed to have debilitating limitations in social functioning. The ALJ found that Due's 

activities such as socializing with karaoke bar patrons, attending church, talking to neighbors, and 

enjoying family gatherings suppotied an inference that, despite his limitations in social functioning, 

he remained capable of greater interactions with others than he claimed. Admin. R. 25. The ALJ 

foun~ that Due's activities, while not equivalent to full time work, showed that he retained the 

capacity to perfotm some work-like functions, such as occasional interactions with coworkers, 

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Case 6:15-cv-00049-JO Document 25 Filed 04/19/16 Page 7 of 16
frequent grasping, maintaining attention and persistence to complete tasks, and so forth. Admin. R. 

26. Although Due's activities did not suggest he functioned without difficulty, they did contradict 

his claim of totally debilitating impahments. Accordingly, the ALJ rationally drew an adverse 

inference as to his credibility based on his daily activities. 1'1!0/ina v. As true, 647 F.3d 1104, 1113 

(9th Cir. 2012). 

The ALJ also considered Due's work history which showed he had little propensity to work 

even during periods of non-disability. Admin. R. 26, 123, 162, 462, 605. Such a work history may 

support an adverse credibility finding with respect to a claimant's professed inability to work. 

Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 

The ALJ' s findings are supp01ied by substantial evidence in the record and are sufficiently 

specific for me to conclude that the ALJ did not arbitrarily reject Due's subjective statements. His 

reasoning is clear and convincing and the credibility dete1mination will not be disturbed. 

Tommasetti, 533 F.3d at 1039; Carmickle, 533 F.3d at 1160. 

III. Opinions of Medical and Mental Health Care Providers 

Due contends the ALJ improperly discounted the findings and opinions of Drs. Sattar, 

Gordon, and 01iega in determining the severity criteria for his mental impairments for the purposes 

of the Listing of Impairments and in assessing his RFC. 

Dr. Sattar met Due on April 30, 2008, when he prepared a Psychiatric Evaluation comprised 

of an interview and mental status examination. Due complained of problems with focus, attention, 

and getting along with others. He reported a subjective history of complex psychiatric problems and 

current depressed mood. Dr. Sattar observed that Due was oriented and cooperative and maintained 

eye contact. He had fair insight, judgment, and cognition. Dr. Sattar noted no psychomotor agitation 

-8- OPINION AND ORDER 

Case 6:15-cv-00049-JO Document 25 Filed 04/19/16 Page 8 of 16
or retardation and Due demonstrated coherent and goal directed thought processes. The only 

abnonnal clinical observations Dr. Sattar noted were less than adequate hygiene and blunted or 

constricted affect. Admin. R. 271. Dr. Sattar started Due on Seroquel and in May 2008, Due 

rep01ied improved mood and sleep. Admin. R. 268. Dr. Sattar said Due appeared calm, more 

focused, and goal oriented. He then began a second medication, and in July 2008, Due reported 

further improvement in mood and focus. Admin. R. 266-267. Due then failed to return for further 

treatment with Dr. Sattar. Admin. R. 265. 

Based on his limited clinical observations and Due's subjective statements in the interview, 

Dr. Sattar diagnosed Major Depressive Disorder and PTSD based on repo1ied childhood abuse. Dr. 

Sattar assigned a global assessment of functioning ("GAF") score of 45. Admin. R. 271. The GAF 

score is an outdated measure of overall functioning used in previous editions of the Diagnostic and 

Statistical Manual of Mental Disorders ("DSM"). In the current version of the DSM (the fifth 

edition or "DSM-V") the GAF rating was dropped for lack of clarity and inconsistency in 

application, among other reasons. In the absence of a clear explanation from the clinician of a 

clinical basis for the GAF rating and the period to which it applies, it does not provide a reliable 

measure of the claimant's ability in specific mental functions over a sufficient period of time to be 

useful in a disability analysis. Due contends the ALJ failed to consider Dr. Sattar' s GAF rating. 

In fact, the ALJ did consider Dr. Sattar's GAF rating but gave it little weight. Admin. R. 26. 

An ALJ may discount a medical opinion for clear and convincing reasons supp01ied by substantial 

evidence or, if the opinion is contradicted by other medical opinions, for specific and legitimate 

reasons. Tommassetti, 533 F.3d at 1041; Thomas, 278 F3d at 957. Here, the ALJ found that Due's 

reported activities showed that he functioned at a higher level than a GAF rating of 45 would 

-9- OPINION AND ORDER 

Case 6:15-cv-00049-JO Document 25 Filed 04/19/16 Page 9 of 16
suggest. In addition, he cotTectly found that Dr. Sattar's GAF rating was premised on Due's 

subjective statements. Admin. R. 26. Indeed, other than the subjective statements from Due's 

interview, Dr. Sattar provided only the umemarkable clinical findings described previously and did 

not identify any specific functional limitation or work-related activity that Due could no perform. 

Admin. R. 271. An ALJ need not accept the opinion of a treating physician that is brief, conclusory, 

and inadequately suppo1ied by clinical findings. Bayliss v. Barnhart, 427F.3d1211, 1216 (9th Cir. 

2005). In addition, an ALJ may reject a treating physician's opinion ifit is based to a large extent 

on a claimant's self-rep01is that have been properly discounted as incredible. Tommassetti, 533 F.3d 

at 1041. Accordingly, the ALJ did not elT by discounting Dr. Sattar's GAF score. 

In July 2009, Dr. Gordon performed a consultative Psychodiagnostic Evaluation in which he 

interviewed Due and did a mental status examination. Due told Dr. Gordon that he liked to be 

around people generally, but prefened to be left alone when he felt depressed. He said that when 

compliant with medications he was organized and could get things done in a timely fashion. Dr. 

Gordon found Due oriented and aware of cunent and past presidents. Due struggled somewhat with 

a simple task used to assess attention and concentration but completed the task adequately. He also 

perfo1med adequately on an informal assessment of memory. Admin. R. 329. Based on these 

umemarkable clinical findings and Due's subjective history, Dr. Gordon diagnosed PTSD, ADHD, 

bipolar disorder, and obsessive -compulsive disorder. Dr. Gordon assigned a GAF rating of 40. 

Admin. R. 330. 

The ALJ gave Dr. Gordon's GAF rating little weight for the same reasons that he discounted 

Dr. Sattar' s GAF rating. Admin. R. 29. That is, the ALJ found the level of impairment suggested 

by such a low GAF rating unsupp01ied by Dr. Gordon's clinical findings in the examination. As 

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Case 6:15-cv-00049-JO Document 25 Filed 04/19/16 Page 10 of 16
noted previously, an ALJ need not accept the opinion of an examining physician that is conclusory 

and unsuppmied by clinical findings. Bayliss, 427 F.3d at 1216. In the absence of clinical findings, 

it is reasonable to infer that the ALJ relied primarily on the subjective histo1y Due presented in the 

interview. For example, Due contends that Dr. Gordon found that he was "marginally functional," 

but Dr. Gordon based this finding on Due's subjective repo1i that he needed reminders to take care 

of his hygiene needs. An ALJ may properly discount the opinion of an examining psychologist if 

it is premised on the subjective repo1is ofa claimant who lacks credibility. Tommassetti, 533 F.3d 

at 1041. In addition, the ALJ found that Due's activities showed thathe functioned at ahigher level 

than a GAF rating of 40 would suggest. Admin. R. 29. Like Dr. Sattar, Dr. Gordon failed to identify 

any specific area of functional incapacity or any work-related activity that Due would not be able to 

perfo1m. Accordingly, the ALJ did not err in his evaluation of Dr. Gordon's report. 

Due established care with Dr. 01iega in September 2009 fortreatment of a bout ofbronchitis. 

Admin. R. 403. At a follow up in October 2009, Due repmied a subjective history of sleep apnea, 

ADHD, bipolar disorder, and depression, but Dr. Ortega noted that his physical examination was 

nmmal and his mood appeared euthymic. Admin. R. 401. Due next saw Dr. Ortega in December 

2009 to request documentation confirming a diagnosis of bipolar disorder so that Due could receive 

public services. Dr. 01iega observed that Due had a normal physical examination and that his mood 

appeared to be stable without emotional !ability. Nevertheless, despite the absence of clinical 

findings to support a diagnosis of bipolar disorder, Dr. 01iega prepared the documentation Due 

requested to help him get services. Admin. R. 400. In Janumy 2010, Due next saw Dr. 01iega for 

a routine follow up. Again, Due's physical examination was n01mal and Dr. 01iega found his mood 

euthymic. Admin. R. 399. 

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Case 6:15-cv-00049-JO Document 25 Filed 04/19/16 Page 11 of 16
In April 2010, Dr. Ortega completed a Medical Opinion worksheet provided by Due's 

attorney. Admin. R. 422-29. In contemporaneous progress notes, Dr. 01iega said he filled out this 

paperwork to support Due's disability claim based on Due's self assessment and information. 

Admin. R. 398. On the worksheet, Dr. Ortega confirmed that he had provided primmy care for nonmental health concerns, such as hypertension, sleep apnea, and bronchitis. For clinical findings, Dr. 

Ortega noted only that Due appeared to be in pain when bending over. Dr. Ortega opined that Due 

would not experience difficulty, from a physical standpoint, working full time. He suggested Due's 

physical limitations derived from deconditioning and would improve with increased activity and 

exercise. Admin. R. 423-24, 427. Dr. 01tega indicated limitations in postural activities, but 

reiterated that these derived from deconditioning and body habitus and were suppo1ted by subjective 

information provided by Due. Admin. R. 427. 

The ALJ gave the limitations in Dr. Ortega's worksheet little weight because they were based 

on subjective info1mation provided by Due and not on objective medical evidence or clinical 

observations. This is a proper basis for discounting a treating physician's opinion. Tommassetti, 533 

F.3d at 1041. In addition, the ALJ found the limitations in Dr. Ortega's opinion unsupported by his 

own treatment records and inconsistent with Due's activities, reports of improvement on 

medications, and failure to mention the limitations in subsequent treatment visits for routine medical 

matters. Admin. R. 27. The ALJ's reasoning for discounting Dr. Ortega's opinion are clear and 

convincing and amply supported by the record. 

IV. Listings of Impairments 

The Commissioner acknowledges that certain conditions are so severe as to preclude 

substantial gainful activity. If the claimant can show by medical evidence that he suffers from such 

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Case 6:15-cv-00049-JO Document 25 Filed 04/19/16 Page 12 of 16
a condition, the claimant will be presumed to be disabled without fmiher inquiry. Tackett v. Apfel, 

180 F.3d 1094, 1099 (9th Cir. 1999); 20 C.F.R. §§ 404.1524(d)(l), 416.924(d)(l). The 

presumptively disabling conditions and the criteria for establishing each are set forth in the 

regulatory Listing ofimpairments. 

For mental impairments, each listing includes a set of diagnostic criteria in paragraph A and 

a set of severity ratings for impairment-related functional limitations in paragraph B. An individual 

meets the criteria of a listed impaitment when the criteria of both paragraphs A and B are satisfied. 

Listing ofimpaitments § 12.00(A). The ALJ found that Due met the diagnostic criteria for Listing 

12.04 Affective Disorders, 12.06 Anxiety-related Disorders, and 12.08 Personality Disorders. 

Admin. R. 22. To satisfy the paragraph B criteria for any of these listings, the claimant must show 

two of the following: marked restriction of activities of daily living, marked difficulties in 

maintaining social functioning, marked difficulties in concentration, persistence, or pace, and 

repeated episodes of decompensation, each of extended duration. Listing of Impairments§ 12.00(C). 

The claimant bears the burden of specifying how her condition satisfies the criteria for any condition 

in the Listing ofimpaitments. Burch v. Barnhart, 400 F.3d 676, 682-683 (9th Cir. 2005); Lewis v. 

Apfel, 236 F.3d 503, 514 (9th Cir. 2001). 

The ALJ considered all of the evidence relating to the degree of limitation Due expei·ienced 

in each of the B criteria functional areas and made specific findings as required by the regulations. 

The ALJ found that Due had no restriction in activities of daily living, moderate difficulties in social 

functioning, mild difficulties with regard to concentration, persistence, or pace, and no episodes of 

decompensation. Admin. R. 23. 

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Due relied on the opinions of Drs. Sattar and Gordon to challenge the ALJ's B-criteria 

findings. His argument cannot be sustained, however, because the ALJ properly discounted those 

opinions as described previously. Furthermore, neither Dr. Sattar nor Dr. Gordon made specific 

findings regarding Due's functional capacity in any of the B criteria categories of function. 

Accordingly, even if the ALJ had credited their opinions, they would not have shown that Due has 

marked impainnent in any category of function. 

Although Due urges the court to accept a different interpretation of the evidence, the ALJ' s 

conclusions were based on inferences reasonably drawn from substantial evidence in the record and 

the court is not free to substitute a different interpretation. Batson, 359 F.3d at 1193; Andrews, 53 

F.3d at 1039-40. Due did not meet his burden to show that he had functional limitations sufficient 

to satisfy the paragraph B criteria for any mental condition in the Listing of Impaitments. 

VI. RFC Assessment 

Due restates the same arguments to challenge the ALJ' s RFC assessment, viz. that the ALJ 

failed to properly evaluate the medical opinions and improperly interpreted the evidence of his daily 

activities. The ALJ considered all the evidence of functional limitations and reached an RFC 

assessment based on the limitations supported by the record as a whole. The ALJ is not required to 

incorporate additional limitations he found unsupported by the record or supported only by 

discredited evidence. Batson, 359 F3d at 1197-98; Osenbrockv. Apfel, 240 F3d 1157, 1163-65 (9th 

Cir 2001); 1\!Jagallanes v. Bowen, 881 F2d 747, 756-57 (9th Cir. 1989). Accordingly, the ALJ did 

not e11' in his RFC assessment. 

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VII. Step Five Vocational Evidence 

At step five, the Commissioner must show that work exists in the national economy that can 

be performed by a person with the claimant's RFC. Andrews, 53 F.3d at 1043. The Commissioner 

can satisfy this burden by eliciting the testimony of a vocational expert with a hypothetical question 

that sets f01ih all of the claimant's limitations. The assumptions in the hypothetical question must 

be supported by substantial evidence. Andrews, 53 F.3d at 1043. 

Here the ALJ elicited testimony based on the RFC assessment described above which 

contained the limitations the ALJ found credible and supp01ied by substantial evidence. Bayliss, 427 

F.3d at 1217-8. Admin. R. 24. The VE testified that a person with Due's RFC could perform the 

activities and functions required in unskilled occupations such as linen so1ier, circuit board 

assembler, and lot attendant. These occupations represent thousands of jobs locally and nationally. 

The ALJ relied on that testimony to conclude that Due retained the RFC to perfo1m work that exists 

in significant numbers in the national economy. Admin. R. 24. 

Due argues that the VE' s testimony has no evidentiary value because the hypothetical did not 

include all of his limitations. Due's argument must fail because his challenges to the ALJ's 

evaluation of the evidence have no merit. The ALJ properly included the limitations he found 

supported by the record and excluded limitations supported only by discredited evidence. While the 

evidence in the record may be susceptible to an interpretation more favorable to Due, that is not a 

basis to ove1iurn the ALJ's decision. Batson, 359 F.3d at 1193; Andrews, 53 F.3d at 1039-40. 

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CONCLUSION 

For the foregoing reasons, the Commissioner's final decision is AFFIRMED. 

DATED this (tl°'t day of April, 2016. 

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