
USCA1 Opinion

	




          November 15, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1336                                           BENIS A. COLON MARTINEZ,                                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. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                  ___________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Raymond  Riveral  Esteves and  Juan  A. Hernandez  Rivera on               _________________________      __________________________          brief for appellant.               Charles E. Fitzwilliam, United States Attorney, Jose Vazquez               ______________________                          ____________          Garcia,   Assistant  U.S.  Attorney,   and  Robert  M.  Peckrill,          ______                                      ____________________          Assistant Regional Counsel, Department of Health & Human Service,          on brief for appellee.                                  __________________                                  __________________                 Per Curiam.   We  have carefully  reviewed the  parties'                 __________            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                                         -2-            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,                       ___ _____    ____________________________________            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.                 ________                                         -3-
