UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

ZARA D. TARPLEY, 

 Plaintiff-Appellant, 

v. 

CAROLYN W. COLVIN, Acting 

Commissioner of Social Security, 

 Defendant-Appellee. 

No. 14-1110 

(D.C. No. 1:12-CV-03242-WJM) 

(D. Colo.)

 

ORDER AND JUDGMENT*

 

Before LUCERO, GORSUCH, and MORITZ, Circuit Judges. 

 

 Zara Tarpley applied for disability benefits claiming she couldn’t work due to 

back, knee, and wrist pain, fibromyalgia, and depression. At step four of the fivestep sequential evaluation process followed in these cases, an administrative law 

judge determined that Ms. Tarpley retained the residual functional capacity for light 

 *

 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. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 4, 2015

Elisabeth A. Shumaker 

Clerk of Court

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work, including her past jobs as cashier and fast-food worker. See Wall v. Astrue, 

561 F.3d 1048, 1052 (10th Cir. 2009) (explaining the five-step process). In the 

alternative, the ALJ found at step five that Ms. Tarpley’s residual functional capacity 

permitted her to perform a number of other jobs that exist in significant numbers in 

the national economy. After the ALJ denied her claim, the Appeals Council and the 

district court affirmed in turn. The district court found that the ALJ erred at step four 

because Ms. Tarpley didn’t have a strong record of past work as a cashier or fastfood worker, but it agreed with the ALJ’s step-five ruling that Ms. Tarpley could 

perform several jobs that exist in significant numbers. It is this ruling Ms. Tarpley 

now challenges. 

The ALJ took evidence from Ms. Tarpley’s treating physicians, Dr. 

Christopher Smith and Dr. Dexter Koons. Dr. Smith explained his view that Ms. 

Tarpley could lift and carry twenty pounds; could sit for four hours and stand for four 

hours in a workday; and could rarely stoop, squat, crawl, or kneel. Dr. Koons stated 

his judgment that Ms. Tarpley could lift and carry ten pounds; sit for thirty minutes at 

a time and four hours total; stand for twenty minutes at a time and two hours total; 

and that she should never stoop, squat, crawl, or kneel. 

The ALJ discussed all the medical records produced by Dr. Smith and Dr. 

Koons and concluded that none supported the severity of the impairments they found. 

The ALJ gave no weight to Dr. Smith’s opinion because it was “not supported by the 

records in evidence as a whole” or “Dr. Smith’s own clinical records.” The ALJ also 

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afforded no weight to Dr. Koons’s opinion because “Dr. Koons’[s] own records do 

not support the level of severity he alleges.” Instead, the ALJ afforded significant 

weight to the opinion of Dr. Ian Happer, an agency physician. In Dr. Happer’s 

opinion, Ms. Tarpley could lift twenty pounds occasionally and ten pounds 

frequently; could sit for six hours or stand for six hours in a workday; should never 

climb ladders, ropes, or scaffolds; could occasionally stoop, crouch, and climb ramps 

and stairs; could frequently balance, kneel, and crawl; and should avoid concentrated 

exposure to extreme cold. The ALJ explained his judgment that Dr. Happer’s 

opinion was “well supported” by the medical records. 

Ms. Tarpley argues that the ALJ erred in rejecting her treating physicians’ 

views. But we must affirm an ALJ’s decision if substantial evidence — “more than a 

scintilla, but less than a preponderance” — exists to support it. Lax v. Astrue, 489 

F.3d 1080, 1084 (10th Cir. 2007). And that much exists here. As to her back 

impairments, the lack of relevant medical evidence to support a treating physician’s 

opinion is among the factors an ALJ is expressly permitted to consider when 

assessing a medical opinion. See 20 C.F.R. § 416.927(c)(3). Likewise, although the 

existence or severity of fibromyalgia may not be determinable by objective medical 

tests, this court has suggested that the physical limitations imposed by the condition’s 

symptoms can be objectively analyzed. See, e.g., Gilbertson v. Allied Signal, Inc., 

328 F.3d 625, 627 n.1 (10th Cir. 2003); see also Boardman v. Prudential Ins. Co. of 

Am., 337 F.3d 9, 17 n.5 (1st Cir. 2003). And, as the ALJ found, very little in Dr. 

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Smith’s or Dr. Koons’s medical records suggests that Ms. Tarpley is as disabled as 

either Dr. Smith or Dr. Koons claimed. To the contrary, examination records suggest 

that Ms. Tarpley enjoys a full range of motion in her joints, possesses normal 

strength, and walks and moves without much difficulty. Other evidence in the 

medical records suggests that Ms. Tarpley has been able to care for her personal 

needs, do household chores, and go shopping. The ALJ, moreover, noted evidence 

showing that medication alleviates Ms. Tarpley’s symptoms to a great degree, that 

Dr. Koons has encouraged her to remain active, and that Ms. Tarpley indeed stays 

active with friends and family. We do not question that a factfinder may have 

decided differently than the ALJ did about the weight her treating physicians’ 

opinions deserve. But neither can we say that the ALJ wanted for substantial 

evidence to support the judgment he did reach. 

Ms. Tarpley suggests that the ALJ committed a separate error in failing to state 

explicitly whether or not he intended to give controlling weight to her physicians’ 

opinions before proceeding to find that they were entitled to no weight. But any 

imaginable oversight on this score is clearly harmless because the ALJ’s ruling 

unambiguously demonstrates that he declined to give the opinions controlling weight 

and, as we’ve explained, he had substantial evidence to support that decision. See 

Fischer-Ross v. Barnhart, 431 F.3d 729, 733-34 (10th Cir. 2005). Ms. Tarpley’s 

citation to Krauser v. Astrue, 638 F.3d 1324 (10th Cir. 2011), doesn’t compel a 

different result. That case involved an ALJ who determined that a treating 

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physician’s opinion was not entitled to controlling weight but then neglected to 

decide whether it was entitled to at least some weight. See id. at 1330-31. Here the 

situation is reversed — the ALJ didn’t expressly say he wasn’t affording the opinions 

controlling weight but did adequately explain why they were entitled to no weight 

and did so in a manner entitled to our deference.

 Finally, Ms. Tarpley argues that the ALJ erred in affording significant weight 

to the opinion of a nontreating agency physician, Dr. Happer, because he didn’t 

review later opinions issued by Dr. Smith or Dr. Koons or subsequent medical 

records. The governing and unchallenged regulation states that the weight an ALJ 

may give to the opinions of nonexamining sources “depend[s] on the degree to which 

they provide supporting explanations for their opinions,” and that an ALJ should 

“evaluate the degree to which these opinions consider all of the pertinent evidence in 

[a] claim, including opinions of treating and other examining sources.” 20 C.F.R. 

§ 416.927(c)(3). In our case, the ALJ found that Dr. Happer’s opinion was “well 

supported by the evidence of record.” Indeed, Dr. Happer’s view jibed with records 

showing that Ms. Tarpley has full range of motion in all joints and in her spine, can 

walk without difficulty, and has full use of her extremities. The evidence Dr. Happer 

discussed in his assessment, moreover, included Dr. Koons’s examination notes, Dr. 

Smith’s diagnosis and prescription, and the results of a consulting examination by 

another agency physician. As the ALJ thoroughly reviewed, too, nothing in the later 

medical records Ms. Tarpley cites supports the disabling limitations found by Dr. 

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Smith and Dr. Koons or a material change in Ms. Tarpley’s condition that would 

render Dr. Happer’s opinion stale. In fact, records after Dr. Happer’s review show 

that Ms. Tarpley continued to remain active with her friends and family, successfully 

treat her pain with medication, and have normal physical and mental examinations. 

Again, we can imagine a factfinder reaching a different view about how much weight 

to give Dr. Happer’s assessment, but on this record we cannot say this factfinder 

lacked for evidence in reaching the decision he did. 

 Affirmed. 

 Entered for the Court 

 Neil M. Gorsuch 

 Circuit Judge 

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