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FRAGA v. SULLIVAN

May 17, 1993

VIRGINIA FRAGA, Plaintiff,
v.
LOUIS SULLIVAN, Secretary of Health & Human Services, Defendant.


VUKASIN, JR.


The opinion of the court was delivered by: J.P. VUKASIN, JR.

INTRODUCTION

 Plaintiff's motion for summary judgment is before this court pursuant to section 205 (g) of the Social Security Act (the "Act"), 42 U.S.C. ┬ž 405 (g), following the final decision of the Secretary of Health and Human Services (the "Secretary").

 BACKGROUND

 Plaintiff filed her application for Social Security and SSI disability benefits on November 2, 1987. At that time she was 56 years of age. Today, plaintiff, who has an eleventh-grade education, is in her early sixties and is still seeking relief. Plaintiff has consistently testified that because of pain associated with a degenerative disc condition in her back, she is unable to perform sedentary work, including her prior occupation as an envelope stuffer.

 Plaintiff has exhausted her administrative remedies, including obtaining additional medical findings as ordered by this court. The Administrative Law Judge (ALJ), based upon his review of medical testimony, rejected plaintiff's claims based upon her complaints of pain and her inability to sit for prolonged periods of time, and held that plaintiff was capable of performing sedentary work. The ALJ's decision became the final decision of the defendant (Secretary) on June 1, 1992. Plaintiff now seeks redress in this court.

 SCOPE OF ADMINISTRATIVE REVIEW

 This court must find that the final decision of the defendant was supported by substantial evidence and that the denial of benefits was free of legal error. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). Substantial evidence means "more than a mere scintilla," but "less than a preponderance," and is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971).

 Additionally, this court must consider the administrative record "as a whole, weighing evidence that undermines as well as evidence that supports the secretary's decision." Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991).

 DISCUSSION

 Plaintiff moves for summary judgment and an order awarding benefits, asserting that the undisputed medical facts demonstrate that she is "disabled" within the meaning of the Act, and that she is unable to perform any form of sedentary work. Defendant contends that plaintiff is able to perform sedentary work based upon an analysis of his own medical advisor's findings, and that plaintiff should be denied benefits.

 I. UNCONTRADICTED MEDICAL TESTIMONY

 Plaintiff stopped working in September of 1986 as a result of severe back pain and subsequently sought the care of a physician. After numerous medical examinations, plaintiff's doctor, Dr. John L. Zeller, diagnosed lower back pain as a result of a degenerative disc and joint disease.

 Defendant contends that the medical testimony of Dr. Zeller is to be given little evidentiary weight because he is not board certified. Nevertheless, defendant's own medical advisor, Dr. Louis Lesko (who is board certified), concurred in finding ...


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