                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         September 9, 2005
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    CLAUDIA L. TOM,

                 Plaintiff - Appellant,

     v.                                                   No. 04-7117
                                                     (D.C. No. 04-CV-57-S)
    JO ANNE B. BARNHART,                                  (E. D. Okla.)
    Commissioner, Social Security
    Administration,

                 Defendant - Appellee.




                              ORDER AND JUDGMENT           *




Before SEYMOUR, KELLY,             and MURPHY 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

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
       Claudia Tom appeals the district court’s affirmance of a decision by the

Social Security Administration’s Commissioner that denied Tom disability

insurance benefits and supplemental security income benefits at step four of the

five-step sequential evaluation process. Tom argues that the administrative law

judge (ALJ) (1) disregarded a treating physician’s opinion; (2) failed to

adequately develop the administrative record; and (3) made an unsupported

credibility determination. We have jurisdiction over this appeal pursuant to

28 U.S.C. § 1291 and 42 U.S.C. § 405(g), and we affirm.

                        I. T HE T REATING P HYSICIAN R ULE

       An ALJ is not required to give a treating physician’s opinion controlling

weight if the opinion is not “‘well-supported by medically acceptable clinical and

laboratory diagnostic techniques’” or “consistent with other substantial evidence

in the record.”   Watkins v. Barnhart , 350 F.3d 1297, 1300 (10th Cir. 2003)

(quoting SSR 96-2p, 1996 WL 374188, at *2). But even if a treating physician’s

opinion is not entitled to controlling weight, it is still entitled to deference and

must be weighed in light of the following factors:

       “(1) the length of the treatment relationship and the frequency of
       examination; (2) the nature and extent of the treatment relationship,
       including the treatment provided and the kind of examination or
       testing performed; (3) the degree to which the physician’s opinion is
       supported by relevant evidence; (4) consistency between the opinion
       and the record as a whole; (5) whether or not the physician is a
       specialist in the area upon which an opinion is rendered; and (6)


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      other factors brought to the ALJ’s attention which tend to support or
      contradict the opinion.”

Branum v. Barnhart , 385 F.3d 1268, 1275 (10th Cir. 2004) (quoting    Watkins ,

350 F.3d at 1301); see also 20 C.F.R. §§ 404.1527(d), 416.927(d).

      Tom argues that the ALJ disregarded the medical source statement of

treating physician Victoria Pardue, D.O. Specifically, Tom challenges the ALJ’s

reliance on a consulting physician’s opinion and contests the ALJ’s

determinations that Dr. Pardue has not provided much treatment for Tom’s back

and lower extremity pain, that Dr. Pardue’s medical source statement was

inconsistent with the other medical evidence and Tom’s pre-operative activities,

and that Dr. Pardue may have responded sympathetically to Tom’s statement that

she was “considering working on getting her disability,” Aplt. App. at 189. Tom

also contends that the ALJ neither acknowledged Dr. Pardue’s comments on the

medical source statement form nor articulated the weight he afforded Dr. Pardue’s

opinion after finding it non-controlling. Finally, Tom contends that her

post-surgery back pain complaints demonstrate that the laminectomy/discectomy

performed by orthopedic specialist S. Drew Temple, M.D., failed to resolve her

back problems.

      We conclude that the ALJ did not err in rejecting Dr. Pardue’s opinion as

controlling. The limitations opined by Dr. Pardue are neither supported by

diagnostic techniques nor consistent with the substantial evidence in the record.

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Further, the ALJ’s reasons for not giving Dr. Pardue’s opinion “as much weight

as the other evidence of record,” Aplt. App. at 26, are in accordance with the

medical-opinion evaluation factors described in     Branum . We do note, however,

that the ALJ improperly questioned Dr. Pardue’s impartiality.     See Frey v. Bowen ,

816 F.2d 508, 515 (10th Cir. 1987) (stating that a physician’s tendency to

advocate a patient’s cause is generally an insufficient reason to reject that

physician’s medical opinion). Nevertheless, that error is not fatal to the ALJ’s

ultimate discounting of Dr. Pardue’s opinion, given that the ALJ articulated other

legitimate reasons to discount Dr. Pardue’s opinion.

                           II.   THE   A DMINISTRATIVE R ECORD

       Tom argues that the ALJ should have ordered a consultative examination to

assess her post-surgery limitations. Specifically, Tom asserts that there is no

evidence to support the ALJ’s findings that Tom’s surgery was successful and

involved a short convalescence. We disagree.

       An ALJ has the duty to “order a consultative exam when evidence in the

record establishes the reasonable possibility of the existence of a disability and

the result of the consultative exam could reasonably be expected to be of material

assistance in resolving the issue of disability.”   Hawkins v. Chater , 113 F.3d

1162, 1169 (10th Cir. 1997). But when, as here, the social security claimant is

represented at the hearing by counsel who fails to request a consultative exam, the


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ALJ’s duty is triggered only when the need for a consultative exam is “        clearly

established in the record.”   Id. at 1168 (emphasis added). Although a

post-surgery consultative examination might have been helpful to test the

continuing validity of Dr. Temple’s post-operative observation that Tom was “just

doing wonderfully,” we cannot conclude that the record “clearly” establishes the

need for another consultative examination,         Hawkins , 113 F.3d at 1168; cf.

Howard v. Barnhart , 379 F.3d 945, 949 (10th Cir. 2004) (concluding that the

passage of time between the consultative examination and the disability hearing

did not warrant another consultative exam to assess the claimant’s continuing

chest pain, because there was evidence that the pain was not disabling).

                                    III. C REDIBILITY

       Finally, Tom argues that the ALJ erred in finding that Tom’s “allegations

regarding her limitations are not totally credible,” Aplt. App. at 30. Credibility

determinations are peculiarly within the province of the fact-finder and will not

be disturbed when closely and affirmatively linked to substantial evidence.

Hackett v. Barnhart , 395 F.3d 1168, 1173 (10th Cir. 2005). Substantial evidence

is “more than a scintilla, but less than a preponderance,”       Sorenson v. Bowen ,

888 F.2d 706, 710 (10th Cir. 1989), and is established by “such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.”              Soliz v.

Chater , 82 F.3d 373, 375 (10th Cir. 1996) (quotation marks omitted)         . We


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conclude that the ALJ’s credibility determination is legally sound and supported

by substantial evidence.   See Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995)

(discussing the process for determining whether subjective complaints are

credible).

      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court


                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge




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