Colon Martinez v. SHHS ( 1993 )

USCA1 Opinion

          November 15, 1993
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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          No. 93-1336

            


                               BENIS A. COLON MARTINEZ,

                                Plaintiff, Appellant,

                                          v.

                       SECRETARY OF HEALTH AND HUMAN SERVICES,

                                 Defendant, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO


                    [Hon. Hector M. Laffitte, U.S. District Judge]
                                              ___________________
                                  ___________________

                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
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                                 ___________________

               Raymond  Riveral  Esteves and  Juan  A. Hernandez  Rivera on
               _________________________      __________________________
          brief for appellant.
               Charles E. Fitzwilliam, United States Attorney, Jose Vazquez
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          Garcia,   Assistant  U.S.  Attorney,   and  Robert  M.  Peckrill,
          ______                                      ____________________
          Assistant Regional Counsel, Department of Health & Human Service,
          on brief for appellee.



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                 Per Curiam.   We  have carefully  reviewed the  parties'
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            briefs and the record on  appeal.  Although contrary evidence

            was presented, we find that substantial evidence supports the

            finding  that the claimant  retained the mental  and physical

            capacity to  perform the  easy to  learn, routine,  unskilled

            jobs as determined by the  Secretary.  We affirm the judgment

            of the district court substantially for the reasons stated in

            the  magistrate judge's opinion  dated January 22,  1993, and

            the district court's opinion dated March 8, 1993.

                 We add  only the  following comments.   First,  claimant

            contends  that the  ALJ  erred  in  finding  that  claimant's

            condition does not qualify as a listed impairment pursuant to

            20  C.F.R. Part  404,  Subpt.  P, App.  1,    12.05C  (Mental

            Retardation).   Two  examining  psychologists  did find  that

            claimant had a verbal IQ of 68.   However, a verbal IQ of 68,

            standing  alone,  does  not  rise to  the  level  of severity

            required  to establish  a disorder  under section 12.05C.   A

            claimant at that IQ level must also show "a physical or other

            mental impairment  imposing additional and  significant work-

            related limitation of function."   20 C.F.R. Part 404, Subpt.

            P, App. 1,    12.05C.   Viewing  the record as  a whole,  and

            giving  due  weight  to  the  ALJ's  evaluation  of  witness'

            credibility and to his resolution of conflicts in the medical

            evidence, we  find  that substantial  evidence  supports  the

            conclusion that claimant  did not establish that  his hearing



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            impairment,  and/or anxiety  disorder  imposes additional  or

            significant  work-related  limitations of  function so  as to

            satisfy the second prong of section 12.05C.

                 Second,  claimant's assertion  that the  ALJ disregarded

            his subjective complaints  of severe physical pain  is belied

            by  the  record.    The  ALJ  properly  considered  not  only

            claimant's allegations  of pain  but his  prior work  record,

            information from  examining physicians  and claimant's  daily

            activity.  See Avery v. Secretary of Health & Human Services,
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            797 F.2d  19,  23 (1st  Cir.  1986).   On  the basis  of  all

            relevant evidence, the  ALJ supportably found that  there was

            no indication  that  claimant  suffered  sufficient  pain  to

            prevent or limit him from performing routine work activities,

            provided that  those activities  did not  involve working  on

            unprotected heights,  being around moving machinery  or being

            in the presence of loud noises.  

                 Affirmed.
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