Andres Ortiz Ortiz, Plaintiff, Appellant, v. Secretary of Health and Human Services, Defendant, Appellee, 34 F.3d 1065 (1st Cir. 1994)

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. 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.