* Effective March 31, 1995, the functions of the Secretary of Health and

Human Services in social security cases were transferred to the Commissioner of

Social Security. P.L. No. 103-296. Pursuant to Fed. R. App. P. 43(c), Shirley S.

Chater, Commissioner of Social Security, is substituted for Donna E. Shalala,

Secretary of Health and Human Services, as the defendant in this action. 

Although we have substituted the Commissioner for the Secretary in the caption,

in the text we continue to refer to the Secretary because she was the appropriate

party at the time of the underlying decision. 

** This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

UNITED STATES COURT OF APPEALS

Filed 10/9/96

FOR THE TENTH CIRCUIT

ROBERT D. NOLLEN,

Plaintiff-Appellant,

v.

SHIRLEY S. CHATER,

Commissioner, Social Security

Administration,*

Defendant-Appellee.

No. 95-5226

(D.C. No. 94-C-91-W)

(N.D. Okla.)

ORDER AND JUDGMENT**

Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.
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After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34 (f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

Plaintiff Robert D. Nollen appeals from an order of the district court that

affirms the decision of the Secretary of Health and Human Services to deny him

social security disability benefits. Plaintiff claims she has been disabled since

February 26, 1990, due to injuries to his sinuses, back, neck, and upper

extremities caused after a hot asphalt lugger exploded near him. The

administrative law judge (ALJ) denied benefits at step five of the five-part

sequential process for determining disability. See Williams v. Bowen, 844 F.2d

748, 750-52 (10th Cir. 1988)(discussing five-step process). The ALJ determined

that although plaintiff could not return to his past work as a roofer, he retained

the residual functional capacity (RFC) to perform light work limited by reduced

range of motion in his neck, pain in his shoulders and hands, and hearing loss. 

Based on the testimony of a vocational expert, the ALJ concluded there were jobs

plaintiff could perform within those limitations and he was not disabled. The

Appeals Council denied review, making the ALJ's determination the final decision

of the Secretary. 
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We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291 to

review the Secretary's decision to determine only whether it is supported by

substantial evidence and whether the correct legal standards were applied. See

Goatcher v. United States Dep’t of Health & Human Servs., 52 F.3d 288, 289

(10th Cir. 1995). Substantial evidence “is such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Richardson v. Perales,

402 U.S. 389, 401 (1971)(quotation and citation omitted). Evidence is not

substantial if it is overwhelmed by other evidence or is mere conclusion. 

Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). We may not

reweigh the evidence or substitute our judgment for that of the Secretary. Kelley

v. Chater, 62 F.3d 335, 337 (10th Cir. 1995). 

On appeal, plaintiff contends the ALJ: (1) improperly disregarded and

mischaracterized evidence; (2) improperly discounted plaintiff’s allegations of

chronic pain; (3) improperly disregarded the findings of plaintiff’s consultative 

physicians; (4) failed to properly evaluate all of plaintiff’s nonexertional

impairments; and (5) failed to demonstrate there are a significant number of jobs

plaintiff can perform within his RFC. 

As far as we can tell from the record on appeal, plaintiff did not raise his 

fifth issue in the district court. It is counsel’s responsibility to point out in the

record where each issue was raised and ruled on. 10th Cir. R. 28.2(b). Because it
1 The parties consented to disposition of this case by the magistrate judge. 

See 28 U.S.C. § 636(c)(3).

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appears this issue was not raised below, we will not consider it on appeal. Crow

v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994).

We have reviewed the arguments properly raised in light of the record on

appeal, and are not persuaded by plaintiff’s claims of error. The magistrate

judge1 carefully addressed all of these arguments, and we affirm for substantially

the same reasons as set forth in the magistrate judge’s order filed on August 25,

1995. 

The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED.

Entered for the Court

2

Michael R. Murphy

Circuit Judge