* This order and judgment is not binding precedent, e xcept under the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.

** The Honorable Clarence A. Brimmer, District Judge, United States District Court for the District of Wyoming, sitting by desig nation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### July 5, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

BILL L. CARSON,

Plaintiff-Appellant,

v. JO ANNE B. BARNHART, Commissioner, Social Security Administration,

Defendant-Appellee. No. 04-7029 (D.C. No. 03-CV-165-W) (E.D. Okla.)

ORDER AND JUDGMENT *

Before HARTZ , and BALDOCK , Circuit Judges, and BRIMMER , ** District Judge.

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 argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Claimant Bill L. Carson appeals from a district court order affirming the Social Security Commissioner’s decision denying his application for disability insurance benefits under the Social Security Act. Our jurisdiction arises under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We revers e and remand for further proceedings. Mr. Carson applied for benefits in June 1999, alleg ing an inability to work since August 1, 1998, due to severe right shoulder pain, hypertension, and prostatitis. His application was ultimately deniedby an administrative law judge (ALJ) and he did not appeal that decision. Instead , he filed a second application for benefits in October 2000, again alleging he hadbeen disabled since August 1, 1998. The agency denied this second application in itially and on reconsideration. On April 23, 2002, Mr. Carson received a de novo he aring before another ALJ. The ALJ concluded, in a decision dated June 25, 200 2, that Mr. Carson suffered from severe impairments stemming from “lat e effects of musculoskeletal injuries with reconstruction of the [right] shoulde r, hypertension, and prostatitis.” Aplt. App., Vol. II at 22. Nonetheless, the ALJ fo und that Mr. Carson possessed the residual functional capacity (RFC) to perform anarrow range of light work. Although this RFC precluded Mr. Carson from perform ing any of his past relevant work, the ALJ found that it did not prevent him fro m performing other work that is available in the national economy. The ALJ ther efore denied Mr. Carson-3-

benefits at step five of the five-step sequential evaluation process. See 20 C.F.R. § 404.1520; Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (explaining five-step process). The Appeals Council denied Mr. Carson’s subsequent request for review . Mr. Carson then filed a complaint in federal distri ct court, and the parties consented to having a magistrate judge decide the c ase. On January 20, 2004, the magistrate judge entered an order affirming the ALJ ’s decision denying Mr. Carson benefits. This appeal followed. Because the Appeals Council denied review, the ALJ’ s decision is the Commissioner’s final decision for purposes of this appeal. O’Dell v. Shalala , 44 F.3d 855, 858 (10th Cir. 1994). In reviewing th e ALJ’s decision, “we neither reweigh the evidence nor substitute our judgment for that of the agency.” Casias v. Sec’y of Health & Human Servs. , 933 F.2d 799, 800 (10th Cir. 1991). Instead, “[w]e review the Commissioner’s decision to determi ne whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied.” Doyal v. Barnhart , 331 F.3d 758, 760 (10th Cir. 2003). “Substantial evidence is such re levant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id . (quotation omitted). Evidence is insubstantial “if it is overwhelmed by other evidence in the record or-4-

if there is a mere scintilla of evidence supporting it.” Bernal v. Bowen , 851 F.2d 297, 299 (10th Cir. 1988). Mr. Carson raises four issues on appeal. He contends the ALJ (1) failed to properly evaluate the opinions of Dr. Malati and Dr . Davis; (2) failed to perform a proper credibility analysis; (3) failed to identifyjobs at step five that Mr. Carson actually could perform and that were legally suffic ient to satisfy the Commissioner’s burden; and (4) reopened Mr. Carson’ s prior application for disability insurance benefits. We address each iss ue in turn.

I. Opinions of Treating and Examining Physicians Mr. Carson first asserts that the ALJ improperly re jected the opinions of his treating physician, Dr. Malati, and an examining physician, Dr. Davis, without pointing to any contradictory medical evidence in t he record. He also asserts that the ALJ improperly rejected his treating physician’ s opinion without “‘providing specific, legitimate reasons’ for doing so.” Aplt. Opening Br. at 23 (quoting Doyal , 331 F.3d at 764). A treating source opinion is to be given controllin g weight only if it is “well-supported by medically acceptable clinical an d laboratory diagnostic techniques and is not inconsistent with the other s ubstantial evidence in [the] record.” 20 C.F.R. § 404.1527(d)(2); see also Watkins v. Barnhart , 350 F.3d 1297, 1300 (10th Cir. 2003) (outlining framework fo r ALJ’s controlling weight-5-

determination); Langley v. Barnhart , 373 F.3d 1116, 1119 (10th Cir. 2004) (stating that “an ALJ must give good reasons . . . for the weight assigned to a treating physician’s opinion, that are sufficientlyspecific to make clear to any subsequent reviewers the weight the adjudicator gav e to the treating source’s medical opinion and the reason for that weight”) (q uotations omitted, alteration in original); Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004) (explaining that treating physician’s opinion is generally enti tled to greater weight than examining physician’s opinion). Contrary to Mr. Carson’s understanding, the ALJ in this case did not reject the opinions of Dr. Malati and Dr. Davis. Rather, the ALJ declined to give either doctor’s opinion controlling weight. In so doing, the ALJ explained that he did “not give much weight to the limitations Dr. Malati and Dr. Davis assessed [to be] flowing from” the diagnoses of “reconstruction of the shoulder times two, prostatitis and hypertension” because, after thorou ghly reviewing and recounting the record evidence, the ALJ found their opinions t o be based on exaggerated symptoms related to them by Mr. Carson. Aplt. App. , Vol. II at 29 (emphasis added); see also id. at 205-06 (demonstrating Dr. Davis’s reliance upon Mr. Carson’s views of his ailments). Therefore, th e ALJ gave “more weight to the opinion of Dr. Nichols,” another examining phys ician, whose opinion was1 See Aplt. App., Vol. II at 157 (Dr. Nichols’s notes regarding x-rays of

Mr. Carson’s right shoulder, and Dr. Nichols’s opin ion that “conservative type management” with “a course of physical therapy” would be appropriate); id. at 359-60 (doctor notes regarding CT of Mr. Carson’s abdomen due to elevated liver enzymes and doctor’s “impression” of “small renal c yst, otherwise, negative CT”); id. at 331 (letter to Dr. Malati stating that MRI of M r. Carson’s right shoulder, besides showing post-operative change, wa s “otherwise unremarkable”). -6- “supported by x-rays, computed tomography (CT), andmagnetic resonance imaging (MRI).” Id . at 29 1 Having meticulously examined the record, and viewin g it in its entirety, Williams , 844 F.2d at 750, we conclude that the ALJ, in eva luating the opinions of Dr. Malati and Dr. Davis, considered the appropr iate factors, gave good reasons for the weight he assigned the physicians’ opinions, and adequately explained his reasoning. See Watkins , 350 F.3d at 1300-01. We therefore concur with the district court’s determination that the AL J did not commit reversible error in evaluating these doctors’ opinions. II. Credibility Analysis Mr. Carson next argues that the ALJ failed to prope rly evaluate, under 20 C.F.R. § 404.1529(c), Mr. Carson’s allegations o f totally disabling pain, and failed to discuss all of the pertinent factors. We disagree. As we have often stated, “[c]redibility determinati ons are peculiarly the province of the finder of fact, and we will not ups et such determinations when supported by substantial evidence.” Diaz v. Sec’y of Health & Human Servs .,2 Albeit, at the third prong of the analysis, the ALJ found that the objective

medical evidence did not “closely corroborate or co rrelate with the claimant’s subjective complaints.” Aplt. App., Vol. II at 28. -7- 898 F.2d 774, 777 (10th Cir. 1990); see also Casias , 933 F.2d at 801 (“We defer to the ALJ as trier of fact, the individual optimal ly positioned to observe and assess witness credibility.”). We set out the fram ework for analyzing claims of disabling pain long ago, in Luna v. Bowen , 834 F.2d 161, 163-65 (10th Cir. 1987). The ALJ must consider (1) whether the medical evide nce establishes a pain producing impairment; (2) if so, whether there is at least a loose nexus between the impairment and the claimant’s subjective compla ints of pain; and (3) if so, whether, considering all of the evidence, both obje ctive and subjective, the claimant’s pain is disabling. Id . Once it is determined that a claimant has an impairment capable of producing pain, the ALJ must then consider his subjective complaints of pain and decide whether they are credible. See Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995). Here, the ALJ noted the general regulations and lawgoverning assessments of pain and concluded that Mr. Carson established apain-producing impairment by objective medical evidence. Although not explic it, it appears that the ALJ also found a loose nexus between Mr. Carson’s subjective allegations and his impairment. 2 Thus, the ALJ found Mr. Carson at least partiallycredible. But at the third prong of the analysis, the ALJ did not fi nd Mr. Carson’s pain to be-8-

totally disabling. Rather, the ALJ found that “the pain experienced by the claimant is limiting but when compared with the tot al evidence, not severe enough to preclude all types of work.” Aplt. App., Vol. I I at 27. In finding Mr. Carson’s pain only “limiting,” the A LJ properly considered factors pertinent to deciding, at the third prong, whether Mr. Carson’s complaints of severe pain were credible: the medication Mr. C arson takes for pain, the alleged effect of Mr. Carson’s symptoms on the acti vities of daily living and basic task performance, and the consistency of his subjec tive complaints with the objective medical evidence. See Huston v. Bowen , 838 F.2d 1125, 1132 (10th Cir.1988) (listing possible factors ALJ may c onsider at the third prong);
Luna , 834 F.2d at 165-66 (same). In so doing, the ALJ closely and affirmatively linked his finding that Mr. Carson did not suffer f rom totally disabling pain to substantial evidence in the record. See Hamlin v. Barnhart , 365 F.3d 1208, 1220 (10th Cir. 2004). For example, the ALJ highlighted Mr. Carson’s testi mony that he did not take narcotic pain medication. Aplt. App., Vol. II at 26-27; see also id. at 71 (“I try not to take a lot of pain medicine. I take Mot rin things like that, after – if I’ve had problems with my shoulder. It seems to do prob ably as well as any pain medication.”); Luna , 834 F.2d at 165 (observing that “one who needs on ly aspirin surely feels less pain than the one requiring a muc h stronger drug”). The ALJ-9-

also observed that although Mr. Carson did not do dishes, dust, sweep, vacuum, or make his bed, he did belong to the Elks Lodge, attend church, and report that he could walk a half-mile a day. These activities, th e ALJ found, “are not indicative of his complaints of totally disabling pain.” Aplt . App., Vol. II at 28. Further, the ALJ found that plaintiff’s subjective allegations did not closely correlate with the physical findings and supporting clinical data. For instance, Dr. Nichols noted that Mr. Carson had been managed conservatively and should engage in physical therapy, and Dr. Peterson found that Mr. Carson had an “excellent range of motion of his cervical spine,” he had “no reflex or motor abnormalities in either upper extremity,” and an ex amination of his right shoulder “revealed no atrophy.” Id. At the same time, the ALJ found, Mr. Carson’s “description of the severity of the pain has been s o extreme as to appear implausible.” Id. And despite Mr. Carson’s assertion, the ALJ did noterr by failing to “discuss all of the factors” identified in Luna . Aplt. Opening Br. at 30. An ALJ is not required to step through “a formalistic fact or-by-factor recitation of the evidence.” Qualls v. Apfel , 206 F.3d 1368, 1372 (10th Cir. 2000). “So long a s the ALJ sets forth the specific evidence he relies on in evaluating the claimant’s credibility,” which the ALJ in this case did, “the dictates of Kepler are satisfied.” Id. The ALJ’s credibility findings are closely and af firmatively linked to-10-

substantial evidence. Having examined the record a s a whole, we agree with the district court’s determination that the ALJ did noterr in his credibility analysis.

III. Step Five of the Sequential Evaluation After finding that Mr. Carson’s RFC precluded him f rom performing any of his past relevant work, the ALJ moved to step five, where the burden of proof shifted to the Commissioner “to show that the claim ant retain[ed] sufficient RFC to perform work in the national economy, given [his ] age, education, and work experience.” Hackett v. Barnhart , 395 F.3d 1168, 1171 (10th Cir. 2005). Relying on testimony from a vocational expert (VE), the ALJ found that Mr. Carson could perform the following jobs in the national economy: the unskilled light job of food service worker; the unskilled sedentary job of bench assembly; the unskilled sedentary job of surveillance monitor; and the unsk illed sedentary job of information clerk. Mr. Carson contends that none o f the jobs relied on by the ALJ satisfies the Commissioner’s burden at step fiv e. We agree, and therefore we reverse and remand for further proceedings. The ALJ found that despite his impairments, Mr. Car son had the RFC to do the following basic work activities: lift and/or carry 20 pounds occasionally and 10 pou nds frequently; stand and/or walk 6 hours out of an 8 hour workday for 30 minutes at a time, sit for 6 hours out of an 8 hour workday fo r one hour at a time, occasionally climb, bend, stoop, squat, kneel , crouch and crawl. He can occasionally reach with his right upper extr emity and would be slightly limited in reference to fingering, feel ing and gripping. He3 U.S. Dep’t of Labor, Employment & Training Admin., Dictionary of

Occupational Titles (4th ed. 1991). -11- should avoid cold temperatures, unprotected heights , fast and dangerous machinery, and rough uneven surfaces. He would also require easy accessibility to rest rooms and low no ise. Aplt. App., Vol. II at 29. Mr. Carson argues that several of the jobs relied on by the ALJ do not fit this RFC. Specifically, he cont ends that although the VE identified the job of food service worker as one Mr . Carson could perform if he had a less restrictive RFC, the VE testified that i f Mr. Carson had the more restrictive RFC actually found by the ALJ, he wouldnot be able to perform this job. Mr. Carson also argues that the bench assembl y and information clerk positions, as described in the Dictionary of Occupational Titles (DOT), 3 require frequent reaching. Because he is right-handed and the ALJ found he could do only “occasional[] reach[ing] with his right upper extremity,” Aplt. App., Vol. II at 29, he contends that he could not perform the be nch assembly and information clerk jobs. In addition, Mr. Carson argues that the job of surv eillance monitor does not satisfy the Commissioner’s step-five burden because 1) he cannot perform it, 2) it does not exist in significant numbers in the nation al economy, and (3) it is a sedentary job, and under the medical-vocational gui delines (“grids”) he is-12-

presumed disabled if he is limited to unskilled sedentary work. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 201.14. In her brief on appeal, the Commissioner concedes that the ALJ erred when he found that Mr. Carson could perform the unskille d light job of food service worker. Aplee. Br. at 17. The Commissioner argues that the ALJ’s denial of benefits is nonetheless supportable, because the other jobs the ALJ relied on satisfy the Commissioner’s burden. We turn, then, to Mr. Carson’s challenges to the remaining jobs. In her responses to the ALJ’s hypothetical question s, the VE identified several categories of jobs Mr. Carson could performnotwithstanding the limitations found by the ALJ. The VE did not, howe ver, specify which jobs listed in the DOT fit the categories she described. Our r eview shows that the DOT lists five different jobs that are designated “bench asse mbler.” DOT, Vol. II, #706.481-010; id. #706.684-022; id. #706.684-042; id. #727.684-026; id. #729.384-026. The DOT describes four of these jobs as light and one as medium; none is described as sedentary. Id. #706.684-022 (light); id. #706.684-042 (light); id. #727.684-026 (light); id. #729.384-026 (light); id. #706.481-010 (medium). The Selected Characteristics of Occupations , a companion to the DOT, provides that three of the light jobs and the mediu m job require frequent reaching,-13-

and the remaining light job requires constant reach ing. U.S. Dep’t of Labor, Employment & Training Admin., Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles Part A (1993), at 284 (DOT #706.684-022) (frequent); id. (DOT #706.684-042) (frequent); id. at 189 (DOT #729.384-026) (frequent); id. at 188 (DOT #706.481-010) (frequent); id. at 189 (DOT #727.684-026) (constant). An activity or cond ition is considered “constant” when it exists two-thirds or more of the time; it is considered “frequent” when it exists from one-third to two-thi rds of the time; and it is considered “occasional” when it exists up to one-third of the time. Id. , App. C, at C-3. It appears from the ALJ’s decision that he fo llowed these definitions in making his RFC findings. See Aplt. App., Vol II at 27 (explaining that “occasional” bending, squatting, kneeling, or crouching meant “up to 

### a on a given work day”). On its face, the VE’s testimony that Mr. Carson cou ld perform bench assembly jobs conflicts with the DOT’s descriptions of those jobs. None of the bench assembly jobs described in the DOT is sedentary and all require at least frequent reaching; Mr. Carson, who is right-handed, can reach only occasionally with his right upper extremity.
In Haddock v. Apfel , 196 F.3d 1084, 1091 (10th Cir. 1999), we held that “the ALJ must investigate and elicit a reasonable e xplanation for any conflict4 The Commissioner argues that there is no conflict b etween the DOT and the

VE’s testimony because the VE reduced the number of available bench assembly jobs by half to accommodate Mr. Carson’s limited ab ility to reach. We are not persuaded. The ALJ asked the VE a hypothetical que stion involving an individual capable of performing medium, light or sedentary wo rk with a variety of limitations. The VE identified the sedentary job o f bench assembly as one such a person could perform. The ALJ then modified this hypothetical question by adding a variety of other limitations, one of which was the limitation to only occasional reaching with the right upper extremity. In response to this new hypothetical question, the VE testified that the nu mber of bench assembly jobs the person could perform would be reduced by half. She did not indicate which of the additional limitations caused this reduction. As Mr. Carson notes, it is just as likely that one of the other additional limitations –such as the need for a sit/stand option–necessitated the reduction. In any event, amere reduction in the number of available jobs when all of the jobs ostensibly r equire frequent reaching does not eliminate the apparent conflict with the DOT no r obviate the need for an adequate explanation under Haddock. -14- between the Dictionary and expert testimony before the ALJ may rely on the expert’s testimony as substantial evidence to suppo rt a determination of nondisability.” See also Soc. Sec. Rul. 00-4p, 2000 WL 1898704, at *2 (2000 ). The ALJ here neither acknowledged any conflict betw een the DOT and the VE’s testimony nor elicited an explanation for the confl ict. Therefore, as a matter of law, the ALJ was not entitled to rely on the VE’s i dentification of bench assembly jobs to support the Commissioner’s burden at step five. 4 A similar problem exists with the information clerkjobs. The DOT lists five jobs that fall within the category of informat ion clerk. Two of these are light jobs, and three are sedentary. DOT, Vol. I, #237.367-018 (light); id. #249.467-010 (light); id. #237.267-010 (sedentary); id. #237.367-022 (sedentary);-15-

id. #237.367-046 (sedentary). All but two of the jobs , both sedentary, require frequent reaching. Compare Selected Characteristics at 336 (DOT #237.367-046) (frequent reaching), id. at 333 (DOT #249.467-010) (same), and id. at 336 (DOT #237.367-018) (same), with id. at 336 (DOT #237.367-022) (occasional reaching), and id. (DOT #237.267-010) (same). Of the two jobs that r equire only occasional reaching, one has a specific vocational preparation (SVP) level of 4 and the other has an SVP of 5. DOT, #237.367-022 (SVP 4); id. #237.267-010 (SVP 5). As Mr. Carson notes, however, the VE testified that al l the information clerk jobs she was describing had an SVP level of 2. Aplt. App., Vol. II at 77. So either the VE did not have either of these particular jobs in min d when she testified, or her testimony is again in conflict with the DOT. Witho ut an adequate exploration and explanation of any conflict between the DOT and the VE’s testimony, the ALJ was not entitled to rely on the VE’s identification of information clerk jobs to support the Commissioner’s burden at step five. We turn, then, to the job of surveillance monitor, the only other job identified by the VE as one that Mr. Carson could p erform. The VE described the position as an unskilled sedentary one with an SVP of 2. She testified that there are 700 such jobs in Oklahoma and 57,000 across the nation. Mr. Carson raises several challenges to the ALJ’s reliance on this jo b.-16-

First, Mr. Carson argues that he cannot perform the job if it requires report writing because, as he testified, he cannot write e asily due to the effects of his shoulder impairment on his right hand. The ALJ, ho wever, did not find any limitation on Mr. Carson’s ability to write and he did not include any such limitation in the hypothetical questions he posed t o the VE. Because there was no conflict between the ALJ’s RFC findings and the wri ting requirements of the job identified by the VE, the ALJ did not err in this r espect in relying on the job of surveillance monitor to support the Commissioner’s burden. Next, Mr. Carson contends that there are not a sign ificant number of surveillance monitor jobs in Oklahoma. The Commiss ioner is entitled to deny benefits to a social security claimant if he finds that the claimant can “engage in . . . substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). For purposes of the statute, “‘work which exists in the national economy’ means work which exists in significant num bers either in the region where [the claimant] lives or in several regions of the country.” Id. The VE testified that there are 700 surveillance monitor j obs in Oklahoma that Mr. Carson could perform. In his district court brief, Mr. Carson argued that 700 jobs was not a significant number, but on appeal he concedes that “[i]t is clear that 650 to 900 jobs are . . . considered to be numerous enoughto satisfy the requirement that-17-

jobs be available in ‘significant numbers.’” Aplt. Opening Br. at 42 (citing Trimiar v. Sullivan , 966 F.2d 1326, 1330 (10th Cir. 1992)). Nonetheless, he argues that there are not actually a significant number of surveillance monitor jobs in Oklahoma based on the recent case of Allen v. Barnhart , 357 F.3d 1140, 1144 (10th Cir. 2004), in which a VE testified that there were 100 surveillance monitor jobs in Oklahoma thatthe claimant in that case could perform. Mr. Carson argues that there cannotbe 700 surveillance monitor jobs available in Oklahoma at the same time that th ere are only 100 surveillance monitor jobs available, and he contends that there are not actually a significant number of these jobs available in Oklahoma. He urg es us to remand this case for further development of the factors discussed in Trimiar , as we did in Allen , 357 F.3d at 1144, 1146. The simple answer to Mr. Carson’s argument is that a VE’s testimony about how many surveillance monitor jobs are available th at some other claimant can perform with that claimant’s RFC is not relevant to the question whether the VE in this case identified a significant number of surveillance monitor jobs that Mr. Carson can perform with his RFC. The VE here t estified that there are 700 surveillance monitor jobs in Oklahoma that Mr. Cars on can perform. Although this number is substantially less than the total nu mber of regional jobs in all four categories originally cited by the ALJ, we could up hold the denial of benefits5 As Mr. Carson notes, the same is true of all the un skilled sedentary jobs the

VE identified; none can support a finding that he i s not disabled. -18- based on Mr. Carson’s ability to perform this singl e category of jobs if it were otherwise legally adequate. But Mr. Carson’s final challenge to the ALJ’s step five findings demonstrates that our reliance on thi s job would not be legally sound.At the time he filed for disability benefits, as we ll as at the time the ALJ issued his decision, Mr. Carson was closely approac hing advanced age, he had a twelfth grade education, and he had no transferable skills. The grids provide that such an individual is considered disabled if he canperform only sedentary work. 20 C.F.R., Pt. 404, Subpt. P, App. 2, Rule 201.14; see also id. § 201.00(g). Although the ALJ found that Mr. Carson could perform a narrow range of light work, the surveillance monitor job that the VE identified is sedentary. Because the grids provide that Mr. Carson is disabled even if he can perform a full range of unskilled sedentary work, he argues that the ALJ ’s finding that he can perform a particular unskilled sedentary job–surveillance m onitor–cannot support a finding that he is not disabled. 5 Mr. Carson did not raise this argument in the distr ict court. Ordinarily, we will not consider an argument raised for the first time on appeal. See Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994). This rule is not without exceptions,-19-

however, and in unusual circumstances we will exerc ise our discretion to consider an argument not raised in the district court. See Lyons v. Jefferson Bank & Trust , 994 F.2d 716, 721 (10th Cir. 1993) (citing examples of exceptions). The argument Mr. Carson raises is purely a legal one, and its resolution is clear. Moreover, the Commissioner has raised no objection to the claim’s being raised for the first time on appeal. Under these circumst ances, rather than deem the matter waived, we will consider the legal infirmityof the ALJ’s ruling. Because the surveillance monitor job is a sedentary one, we cannot uphold the ALJ’s denial of benefits based on Mr. Carson’s ability to perform that job. For all the reasons discussed above, it was not pro per for the ALJ to rely on any of the jobs he recited in his decision to suppo rt a step-five finding that Mr. Carson was not disabled. We must therefore rev erse and remand for further proceedings so that the ALJ can properly determine through additional VE testimony if there are, in fact, any unskilled ligh t jobs in the national economy that Mr. Carson could perform. We note that while this case has been pending in federal court, Mr. Carson has turned fifty-five andis now a person of advanced
age. See 20 C.F.R. § 404.1563(e). As such, he is now consi dered disabled under the grids even if he can perform a full range of ei ther unskilled light or sedentary work. Id. , Pt. 404, Subpt. P., App. 2, Rule 202.06 (light), Rule 201.06 (sedentary).-20- IV. Reopening of Prior Claim Mr. Carson’s final argument on appeal relates to hi s earlier application for disability benefits filed in June 1999. An ALJ den ied that application on June 24, 2000, and Mr. Carson did not appeal that decision. Instead, he filed the current application in October 2000. In his final argument–which does not so much challenge the ALJ’s decision as seek a declaration of the legal effect of that decision–Mr. Carson contends that the ALJ effected a de facto reopening of his earlier application by considering medical evidence from the prior application period without expressly applying the doctrine of r es judicata to the prior application. The regulations permit the Commissioner to reopen adecision on a previous application for any reason within twelve m onths of the date of notice of the initial determination and to reopen within fouryears of the date of notice of the initial determination for good cause. 20 C.F.R . § 404.988(a), (b). When the ALJ reconsiders the merits of an application that w as previously denied, “the application is considered reopened as a matter of a dministrative discretion, and subject to judicial review to the extent it has been reopened.” Robertson v. Sullivan , 979 F.2d 623, 625 (8th Cir. 1992). Here, the ALJ asked Mr. Carson’s attorney at the be ginning of the hearing if there was any reason to reopen the decision on the prior application, and the-21-

attorney said there was not. The ALJ did not menti on the prior application thereafter or suggest in his decision that he was r econsidering that application on the merits. Mr. Carson argues that the ALJ nonetheless effected a de facto reopening by considering medical evidence that Mr. Carson presented from the period covered by the prior application. We have p reviously rejected the argument that “an examination of medical evidence f rom earlier adjudicated periods somehow reopens [the previously rejected claim],” Hamlin , 365 F.3d at 1215 n.8, and we do so again here. See also Burks-Marshall v. Shalala , 7 F.3d 1346, 1348 (8th Cir. 1993) (noting that ALJ did noteven mention previous application in his decision and holding that “the m ere allowance of evidence from the earlier applications, without more, cannot be c onsidered a reopening of the earlier case”) (cited with approval in Hamlin ).
V. Conclusion The ALJ erred in relying on any of the four jobs he cited in denying benefits to Mr. Carson at step five. Therefore, we must REVERSE the denial of benefits and REMAND this action to the district cou rt with directions to remand-22-

it to the Commissioner for further proceedings cons istent with this order and judgment.

Entered for the Court

Bobby R. Baldock Circuit Judge