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

John J. Callahan, former Acting Commissioner of Soc ial Security, as the defendant in this action.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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 

### 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, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral-2-

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase 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 s tandards. 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 no r 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, lef t hand pain and numbness, depression, and fibromyalgia. The admini strative 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.-3-

On appeal, Ms. Komar argues that the ALJ failed to properly evaluate her pain and mental impairments and did not consider th e 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 requirement s 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 be en treated with only mild anti-depressant medications. She has had one hospi tal admission, but that was a situational episode which occurred after a fight with her boyfriend, combined with alcohol and drug use. No physician has opinedthat her mental problems present an impairment under Social Security standar ds. Ms. Komar does have a bulging disc at L4-5, but all test results are essentially normal. She has no physical restrictio ns in movement. Her physicians have not found her disabled, but have recommended that she pursue a vocation involving sedentary activities. While some physici ans have diagnosed fibromyalgia, others have questioned whether her physical symptoms are consistent with that diagnosis.-4-

The ALJ determined that Ms. Komar’s pain was not as severe as she alleged. "Credibility determinations are peculiarl y 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 allegation s 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 o r nonmedical) to obtain relief, the frequency of her medical contacts, and the natu re of her daily activities, as well as subjective measures of credibility inclu ding the consistency or compatibility of nonmedical testimony with the obje ctive medical evidence.
SeeKepler , 68 F.3d at 391. Objective evidence shows that Ms. Komar has a norma l range of motion, although at least one time she resisted the range o f motion tests in what the physician considered to be an apparent attempt to s how 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 he r physical abilities when she attended occupational rehabilitation. She was disc harged from that program when she stopped attending.-5-

While a physical therapist does not qualify as an " acceptable medical source" under the regulations, 20 C.F.R. §§ 404.151 3(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, b ut the opinion is entitled to less weight than that accorded to the opinions of a cceptable medical sources.
SeeCraig 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 determinat ion, we AFFIRM the judgment of the United States District Court fo r the Northern District of Oklahoma.

Entered for the Court

Wade Brorby Circuit Judge