                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                       February 4, 2015

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
ZARA D. TARPLEY,

             Plaintiff-Appellant,

v.                                                         No. 14-1110
                                                 (D.C. No. 1:12-CV-03242-WJM)
CAROLYN W. COLVIN, Acting                                   (D. Colo.)
Commissioner of Social Security,

             Defendant-Appellee.


                            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 five-

step 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
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 fast-

food 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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