                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           AUG 3 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    MILDRED C. SLOAN,

                Plaintiff-Appellant,

    v.                                                   No. 98-6453
                                                     (D.C. No. 97-CV-887)
    KENNETH S. APFEL, Commissioner,                      (W.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before ANDERSON and KELLY , Circuit Judges, and           BROWN , ** Senior
District Judge.



         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




*
      This order and judgment is not binding precedent, except under the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.
**
      Honorable Wesley E. Brown, Senior District Judge, United States District
Court for the District of Kansas, sitting by designation.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

       This is the second time the denial of plaintiff’s application for disability

insurance benefits has come before this court. Our order and judgment filed on

July 7, 1994, detailed the circumstances surrounding plaintiff’s application, her

medical history, and the medical and non-medical evidence,     Sloan v. Shalala ,

No. 93-6314, 1994 WL 325416 (10th Cir. July 7, 1994), and we will not repeat

those details here. We previously reversed the district court’s affirmance of the

Commissioner’s denial of benefits and remanded the case with instructions to

remand to the Commissioner for proper evaluation of various medical opinions,

particularly the opinions of Dr. Evans. The ALJ, upon the Appeals Council’s

remand, took additional evidence and conducted supplementary hearings, and

once again denied plaintiff’s application for disability benefits at step five of the

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

1988). That denial became the final decision of the Commissioner when the

Appeals Council declined to assume jurisdiction. Plaintiff again appealed the

denial of benefits, and the district court adopted the magistrate judge’s findings

and recommendation and affirmed the Commissioner’s decision.

       Plaintiff appeals the district court’s affirmance of the Commissioner’s

denial of her application. She argues that the Commissioner applied incorrect


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legal standards in that he failed to properly weigh and consider her treating

physician’s opinion that she is totally disabled. We review the record to

determine whether substantial evidence supports the Commissioner’s decision and

whether he correctly applied the applicable legal standards.      See James v. Chater ,

96 F.3d 1341, 1342 (10th Cir. 1996). We affirm.

         Plaintiff argues that, after our remand on this issue, the ALJ improperly

found that Dr. Evans was not plaintiff’s treating physician and that he erred in not

according Dr. Evans’ opinion, as a treating physician, more weight than the other

physicians’ opinions. We need not determine whether the ALJ was correct in

finding that Dr. Evans was not “a ‘treating physician’ as used in the rules.”

Appellant’s App. Vol. I at 50. Regardless of whether the ALJ considered

Dr. Evans a treating physician, the ALJ did apply the proper legal standards and

analysis relative to a treating physician in deciding that Dr. Evans’ opinion was

entitled to no more weight as a treating physician than the other physicians’

opinions. In our remand, we directed that the Commissioner should consider

and apply the factors set forth in 20 C.F.R. § 404.1527(d), which he did.     See also

Goatcher v. Department of Health & Human Servs.         , 52 F.3d 288, 290 (10th Cir.

1995).

         In applying the correct legal standards and analysis, the ALJ found that

Dr. Evans saw plaintiff five times at the behest of plaintiff’s attorney and that the


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visits were more in the nature of evaluations for litigation purposes than for

treatment. The ALJ also found that Dr. Evans’ ultimate statement that plaintiff

was totally disabled was inconsistent with the objective medical evidence

resulting from his evaluations. Further, one of Dr. Evans’ written opinions was

that plaintiff was disabled to the extent that she could no longer perform her past

work. This opinion was consistent with the ALJ’s finding that, although plaintiff

could no longer perform her past work, she retained the residual functional

capacity to perform other work available in the national economy. In addition

to being internally inconsistent with his own medical and testimonial evidence,

Dr. Evans’ opinion of total disability was inconsistent with the objective medical

evidence and the opinions of other physicians. Finally, the ALJ recognized that

Dr. Evans was an orthopedic specialist, as was Dr. McCown, who originally

treated plaintiff when she suffered the injuries to her back and knee and who

released her to return to work.

      The Commissioner applied the correct legal standards in this case, and the

record contains substantial evidence supporting his decision. Consequently, we

AFFIRM the district court’s judgment.

                                                    Entered for the Court


                                                    Paul J. Kelly, Jr.
                                                    Circuit Judge


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