* Effective March 31, 1995, the functions of the Secr etary of Health and

Human Services in social security cases were transf erred to the Commissioner of Social Security. P.L. No. 103-296. Pursuant to Fe d. R. App. P. 43(c), John J. Callahan, Acting Commissioner of Social Security, i s 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 b ecause she was the appropriate party at the time of the underlying decision.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 25 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

YUELL O. CANIDA,

Plaintiff-Appellant,

v. JOHN J. CALLAHAN, Acting Commissioner, Social Security Administration, *

Defendant-Appellee. No. 97-5032 (D.C. No. 95-CV-1231-J) (N.D. Okla.)

ORDER AND JUDGMENT **

Before TACHA, MCKAY, and BALDOCK, Circuit Judges.1 Pursuant to 28 U.S.C. § 636(c)(1), the parties cons ented to final

adjudication of this matter by the magistrate judge

. -2- After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Claimant Yuell O. Canida appeals from an order of t he magistrate judge 1 affirming the decision of the Secretary of Health a nd Human Services, denying his application for disability insurance and supple mental security income benefits. We have jurisdiction pursuant to 28 U.S.C. § 1291 a nd 42 U.S.C. 405(g), and we affirm. At the time of his administrative hearing, claimant , a fifty-two year old man, alleged disability since April 1, 1989, due to lower back pain. Although claimant had been deaf in his right ear since birth and had some left ear hearing loss, he claimed the only reason he could not work was the back pain. Concluding that claimant could perform his past rel evant work as a janitor, the administrative law judge (ALJ) found claimant not d isabled at step four of the five-step process for determining disability, see Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing the five s teps in detail).-3-

In his request for Appeals Council review, claimantsubmitted additional evidence of borderline mental retardation and depre ssion. The Appeals Council found that neither claimant’s contentions of error in the ALJ’s decision or the additional evidence of mental impairment provided abasis for review. The magistrate judge affirmed the Secretary’s decision and claimant appeals. On appeal, claimant contends that (1) the ALJ erred in finding claimant’s subjective complaints of pain to be incredible; (2) the Appeals Council erred in evaluating the evidence of claimant’s mental impair ments; (3) the ALJ’s conclusion that claimant could return to his past r elevant work as a janitor was not supported by substantial evidence; and (4) the ALJ did not adequately develop the record as to the demands of claimant’s past rel evant work as he actually performed it. We review the Secretary’s decision to determine whe ther it is supported by substantial evidence and whether the correct legal standards were applied. See Castellano v. Secretary of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). We do not, however, reweigh the evidence orsubstitute our judgment for that of the Secretary. See Hargis v. Sullivan , 945 F.2d 1482, 1486 (10th Cir. 1991). We have thoroughly reviewed the parties’ briefs andthe record on appeal, and are satisfied that claimant’s contentions of er ror have no merit. The-4-

magistrate judge thoroughly and correctly addressedthe issues raised by claimant. Therefore, we affirm for substantially the reasons stated in the magistrate judge’s Order of December 23, 1996. See Appellant’s App., Vol. I at 6-29. AFFIRMED.

Entered for the Court

Monroe G. McKay Circuit Judge