
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                               UNITED STATES OF APPEALS                                FOR THE FIRST CIRCUIT                                   ________________          No. 94-1172                                 ANDRES ORTIZ ORTIZ,                                Plaintiff, Appellant,                                          v.                       SECRETARY OF HEALTH AND HUMAN SERVICES,                                 Defendant, Appellee.                                   ________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Gilberto Gierbolini, U.S. District Judge]                                   ________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                ______________________             Raymond Rivera  Esteves and Juan A.  Hernandez Rivera on  brief             _______________________     _________________________          for appellant.             Guillermo  Gil, United  States Attorney, Maria  Hortensia Rios,             ______________                           _____________________          Assistant U.S. Attorney, and  Donna McCarthy, Assistant  Regional                                        ______________          Counsel, Region  I, Department  of Health  & Human Services.,  on          brief for appellee.                                   ________________                                  September 2, 1994                                   ________________                      Per  Curiam.  Claimant,  Andres  Ortiz  Ortiz,  has                      ___________            appealed a  district court  judgment affirming a  decision of            the Secretary  of Health  and Human Services  (the Secretary)            which  denied  Ortiz's application  for  disability insurance            benefits  under the Social Security  Act, 42 U.S.C.    401 et                                                                       __            seq..   The Secretary concluded that  Ortiz was not precluded            ____            from  performing  other  substantial  gainful  activity  that            existed in the national  economy, i.e., the Secretary carried                                              ____            the  burden of  proof  at Step  5  of the  sequential  review            process.    See Goodermote  v.  Secretary of  Health  & Human                        ___ _____________________________________________            Servs., 690  F.2d 5, 7 (1st Cir. 1982).  We have reviewed the            ______            parties'  briefs and  the record  on appeal.   We  affirm the            judgment of the district court, entered on December 31, 1993,            essentially for the reasons  stated by the administrative law            judge and district court.                      1.   With respect to claimant's contention that the            ALJ,  a  lay  person,  could not  permissibly  conclude  that            claimant  retained the residual functional capacity for light            work absent an RFC evaluation from a physician, we agree with            the  district court's analysis.  Given the dearth of evidence            of  any continuing  physical  impairment, whether  claimant's            alleged pain  imposed any exertional limitation  was an issue            of credibility to be determined  under the standard set forth            in Avery v. Secretary of Health and Human Servs., 797 F.2d 19               _____________________________________________            (1st Cir. 1986).                                         -2-                      2.   Plaintiff asserts that  the ALJ  did not  give            proper  consideration to his  allegations of  disabling pain.            Such allegations of  pain must  be considered by  the ALJ  in            accordance with  Avery.  The hearing  transcript and findings                             _____            amply   demonstrate   that   the   inquiry   into  claimant s            allegations of pain conformed with Avery.                                               _____                  Judgment affirmed.                  _________________                                                                   -3-
