* Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for

John J. Callahan, former Acting Commissioner of Social Security, as the

defendant in this action.

** This order and judgment is not binding precedent, except under the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

F I L E D

United States Court of Appeals

Tenth Circuit

JAN 9 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JACQUELYN M. KOMAR,

Plaintiff-Appellant,

v.

KENNETH S. APFEL, Commissioner,

Social Security Administration,*

Defendant-Appellee.

No. 97-5125

(D.C. No. 95-CV-320-W)

(N.D. Okla.)

ORDER AND JUDGMENT**

Before BRORBY, BARRETT, and BRISCOE, Circuit Judges.

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

ordered submitted without oral argument.

Plaintiff Jacquelyn M. Komar appeals from an order of the district court

affirming the Commissioner’s determination that she is not entitled to disability

benefits. We affirm.

We review the Commissioner’s decision to determine whether his factual

findings were supported by substantial evidence in light of the entire record and

to determine whether he applied the correct legal standards. See Castellano v.

Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994).

Substantial evidence is “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Id. (quotations omitted). In the course of

our review, we may “neither reweigh the evidence nor substitute our judgment for

that of the agency.” Casias v. Secretary of Health & Human Servs., 933 F.2d 799,

800 (10th Cir. 1991).

Ms. Komar alleged disability due to back, neck, left hand pain and

numbness, depression, and fibromyalgia. The administrative law judge (ALJ)

determined that Ms. Komar was not disabled at step five of the five-step

sequential process, see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.

1988), finding that she could perform less than the full range of light work.
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On appeal, Ms. Komar argues that the ALJ failed to properly evaluate her

pain and mental impairments and did not consider the vocational impact of those

impairments on her ability to work. Ms. Komar also asserts the ALJ erroneously

relied on the findings of a physical therapist who is not a recognized acceptable

medical source under the regulations and the ALJ improperly evaluated her

credibility and did not comply with the requirements for evaluating pain as set

forth in Kepler v. Chater, 68 F.3d 387 (10th Cir. 1995).

The record supports the ALJ’s determination that Ms. Komar’s mental

impairment is not disabling. Her depression has been treated with only mild

anti-depressant medications. She has had one hospital admission, but that was

a situational episode which occurred after a fight with her boyfriend, combined

with alcohol and drug use. No physician has opined that her mental problems

present an impairment under Social Security standards.

Ms. Komar does have a bulging disc at L4-5, but all test results are

essentially normal. She has no physical restrictions in movement. Her physicians

have not found her disabled, but have recommended that she pursue a vocation

involving sedentary activities. While some physicians have diagnosed

fibromyalgia, others have questioned whether her physical symptoms are

consistent with that diagnosis.
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The ALJ determined that Ms. Komar’s pain was not as severe as she

alleged. "Credibility determinations are peculiarly the province of the finder

of fact, and we will not upset such determinations when supported by substantial

evidence," Diaz v. Secretary of Health & Human Servs., 898 F.2d 774, 777

(10th Cir. 1990).

The ALJ adequately evaluated Ms. Komar’s allegations of pain. 

Ms. Komar established that she suffers from a pain-producing impairment. 

Therefore, the ALJ was required to consider her complaints of pain by evaluating

her use of pain medication, her attempts (medical or nonmedical) to obtain relief,

the frequency of her medical contacts, and the nature of her daily activities,

as well as subjective measures of credibility including the consistency or

compatibility of nonmedical testimony with the objective medical evidence. 

See Kepler, 68 F.3d at 391.

Objective evidence shows that Ms. Komar has a normal range of motion,

although at least one time she resisted the range of motion tests in what the

physician considered to be an apparent attempt to show herself as having less

physical capacity than she actually had. She takes no medication aside from using

Valium at night. She also showed improvement in her physical abilities when she

attended occupational rehabilitation. She was discharged from that program when

she stopped attending.
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While a physical therapist does not qualify as an "acceptable medical

source" under the regulations, 20 C.F.R. §§ 404.1513(a), 416.913(a), physical

therapists do qualify as "other sources," id. §§ 404.1513(e), 416.913(e). As such

a physical therapist’s opinion can be considered, but the opinion is entitled to

less weight than that accorded to the opinions of acceptable medical sources. 

See Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996). Thus, the ALJ did not err

in considering the physical therapist’s opinion in conjunction with the opinions of

acceptable medical sources. The record contains no indication that the ALJ relied

solely on the physical therapist’s opinion.

Finding no reversible error in the ALJ’s determination, we AFFIRM

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

of Oklahoma.

Entered for the Court

Wade Brorby

Circuit Judge