Carson v. Barnhart

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 5, 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

BILL L. CARSON,

Plaintiff-Appellant,

v. No. 04-7029
(D.C. No. 03-CV-165-W)
JO ANNE B. BARNHART, (E.D. Okla.)
Commissioner, Social Security
Administration,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before HARTZ , and BALDOCK , Circuit Judges, and BRIMMER , ** 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

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This order and judgment is not binding precedent, except under the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.
**
The Honorable Clarence A. Brimmer, District Judge, United States District
Court for the District of Wyoming, sitting by designation.
 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 reverse and remand for further

proceedings.

Mr. Carson applied for benefits in June 1999, alleging an inability to work

since August 1, 1998, due to severe right shoulder pain, hypertension, and

prostatitis. His application was ultimately denied by 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 had been disabled since August 1,

1998. The agency denied this second application initially and on reconsideration.

On April 23, 2002, Mr. Carson received a de novo hearing before another ALJ.

The ALJ concluded, in a decision dated June 25, 2002, that Mr. Carson

suffered from severe impairments stemming from “late effects of musculoskeletal

injuries with reconstruction of the [right] shoulder, hypertension, and prostatitis.”

Aplt. App., Vol. II at 22. Nonetheless, the ALJ found that Mr. Carson possessed

the residual functional capacity (RFC) to perform a narrow range of light work.

Although this RFC precluded Mr. Carson from performing any of his past relevant

work, the ALJ found that it did not prevent him from performing other work that

is available in the national economy. The ALJ therefore denied Mr. Carson

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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 district court, and the parties

consented to having a magistrate judge decide the case. 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 the 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 determine 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 relevant 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

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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 identify jobs at step five that Mr. Carson

actually could perform and that were legally sufficient to satisfy the

Commissioner’s burden; and (4) reopened Mr. Carson’s prior application for

disability insurance benefits. We address each issue in turn.

I. Opinions of Treating and Examining Physicians

Mr. Carson first asserts that the ALJ improperly rejected the opinions of his

treating physician, Dr. Malati, and an examining physician, Dr. Davis, without

pointing to any contradictory medical evidence in the 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 controlling weight only if it is

“well-supported by medically acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the other substantial 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 for ALJ’s controlling weight

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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 sufficiently specific to make clear to any

subsequent reviewers the weight the adjudicator gave to the treating source’s

medical opinion and the reason for that weight”) (quotations omitted, alteration in

original); Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004) (explaining

that treating physician’s opinion is generally entitled 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 thoroughly reviewing and recounting

the record evidence, the ALJ found their opinions to 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, the ALJ gave “more weight to

the opinion of Dr. Nichols,” another examining physician, whose opinion was

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“supported by x-rays, computed tomography (CT), and magnetic resonance

imaging (MRI).” Id. at 29 1

Having meticulously examined the record, and viewing it in its entirety,

Williams , 844 F.2d at 750, we conclude that the ALJ, in evaluating the opinions

of Dr. Malati and Dr. Davis, considered the appropriate 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 ALJ did not commit reversible

error in evaluating these doctors’ opinions.

II. Credibility Analysis

Mr. Carson next argues that the ALJ failed to properly evaluate, under

20 C.F.R. § 404.1529(c), Mr. Carson’s allegations of totally disabling pain, and

failed to discuss all of the pertinent factors. We disagree.

As we have often stated, “[c]redibility determinations are peculiarly the

province of the finder of fact, and we will not upset such determinations when

supported by substantial evidence.” Diaz v. Sec’y of Health & Human Servs .,

1
See Aplt. App., Vol. II at 157 (Dr. Nichols’s notes regarding x-rays of
Mr. Carson’s right shoulder, and Dr. Nichols’s opinion 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 cyst, otherwise, negative
CT”); id. at 331 (letter to Dr. Malati stating that MRI of Mr. Carson’s right
shoulder, besides showing post-operative change, was “otherwise unremarkable”).

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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 optimally positioned to observe and

assess witness credibility.”). We set out the framework 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 evidence establishes a pain

producing impairment; (2) if so, whether there is at least a loose nexus between

the impairment and the claimant’s subjective complaints of pain; and (3) if so,

whether, considering all of the evidence, both objective 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 law governing assessments

of pain and concluded that Mr. Carson established a pain-producing impairment

by objective medical evidence. Although not explicit, 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 partially credible. But at

the third prong of the analysis, the ALJ did not find Mr. Carson’s pain to be

2
Albeit, at the third prong of the analysis, the ALJ found that the objective
medical evidence did not “closely corroborate or correlate with the claimant’s
subjective complaints.” Aplt. App., Vol. II at 28.

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totally disabling. Rather, the ALJ found that “the pain experienced by the

claimant is limiting but when compared with the total evidence, not severe enough

to preclude all types of work.” Aplt. App., Vol. II at 27.

In finding Mr. Carson’s pain only “limiting,” the ALJ properly considered

factors pertinent to deciding, at the third prong, whether Mr. Carson’s complaints

of severe pain were credible: the medication Mr. Carson takes for pain, the

alleged effect of Mr. Carson’s symptoms on the activities of daily living and basic

task performance, and the consistency of his subjective complaints with the

objective medical evidence. See Huston v. Bowen , 838 F.2d 1125, 1132

(10th Cir.1988) (listing possible factors ALJ may consider 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 from 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 testimony 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 Motrin things like that, after – if I’ve

had problems with my shoulder. It seems to do probably as well as any pain

medication.”); Luna , 834 F.2d at 165 (observing that “one who needs only aspirin

surely feels less pain than the one requiring a much stronger drug”). The ALJ

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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, the 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 examination 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 so extreme as to appear

implausible.” Id.

And despite Mr. Carson’s assertion, the ALJ did not err 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 factor-by-factor recitation of the

evidence.” Qualls v. Apfel , 206 F.3d 1368, 1372 (10th Cir. 2000). “So long as

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 affirmatively linked to

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substantial evidence. Having examined the record as a whole, we agree with the

district court’s determination that the ALJ did not err in his credibility analysis.

III. Step Five of the Sequential Evaluation

After finding that Mr. Carson’s RFC precluded him from 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 claimant 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 unskilled sedentary job of

information clerk. Mr. Carson contends that none of the jobs relied on by the

ALJ satisfies the Commissioner’s burden at step five. We agree, and therefore we

reverse and remand for further proceedings.

The ALJ found that despite his impairments, Mr. Carson had the RFC to do

the following basic work activities:

lift and/or carry 20 pounds occasionally and 10 pounds 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 for one hour at a
time, occasionally climb, bend, stoop, squat, kneel, crouch and crawl.
He can occasionally reach with his right upper extremity and would
be slightly limited in reference to fingering, feeling and gripping. He

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 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 noise.

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 contends 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 if Mr. Carson had the more

restrictive RFC actually found by the ALJ, he would not be able to perform this

job. Mr. Carson also argues that the bench assembly 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 bench assembly and information

clerk jobs.

In addition, Mr. Carson argues that the job of surveillance 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 national economy, and (3) it is a

sedentary job, and under the medical-vocational guidelines (“grids”) he is

3
U.S. Dep’t of Labor, Employment & Training Admin., Dictionary of
Occupational Titles (4th ed. 1991).

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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 unskilled 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 questions, the VE identified

several categories of jobs Mr. Carson could perform notwithstanding the

limitations found by the ALJ. The VE did not, however, specify which jobs listed

in the DOT fit the categories she described. Our review shows that the DOT lists

five different jobs that are designated “bench assembler.” 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 medium job require frequent reaching,

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and the remaining light job requires constant reaching. 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 condition 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-thirds 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 followed 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 could 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 explanation for any conflict

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between the Dictionary and expert testimony before the ALJ may rely on the

expert’s testimony as substantial evidence to support a determination of

nondisability.” See also Soc. Sec. Rul. 00-4p, 2000 WL 1898704, at *2 (2000).

The ALJ here neither acknowledged any conflict between the DOT and the VE’s

testimony nor elicited an explanation for the conflict. Therefore, as a matter of

law, the ALJ was not entitled to rely on the VE’s identification of bench assembly

jobs to support the Commissioner’s burden at step five. 4

A similar problem exists with the information clerk jobs. The DOT lists

five jobs that fall within the category of information 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);

4
The Commissioner argues that there is no conflict between 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 ability to reach. We are not
persuaded. The ALJ asked the VE a hypothetical question involving an individual
capable of performing medium, light or sedentary work with a variety of
limitations. The VE identified the sedentary job of 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 number 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, a mere reduction in the number
of available jobs when all of the jobs ostensibly require frequent reaching does
not eliminate the apparent conflict with the DOT nor obviate the need for an
adequate explanation under Haddock.

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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 require 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 all 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 mind when she testified, or her

testimony is again in conflict with the DOT. Without 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 perform. 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 job.

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 First, Mr. Carson argues that he cannot perform the job if it requires report

writing because, as he testified, he cannot write easily due to the effects of his

shoulder impairment on his right hand. The ALJ, however, 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 to the VE. Because there was no

conflict between the ALJ’s RFC findings and the writing requirements of the job

identified by the VE, the ALJ did not err in this respect in relying on the job of

surveillance monitor to support the Commissioner’s burden.

Next, Mr. Carson contends that there are not a significant number of

surveillance monitor jobs in Oklahoma. The Commissioner 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 numbers 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 jobs 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 enough to satisfy the requirement that

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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 that the claimant in that case

could perform. Mr. Carson argues that there cannot be 700 surveillance monitor

jobs available in Oklahoma at the same time that there 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 urges 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 that 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 testified that there are 700

surveillance monitor jobs in Oklahoma that Mr. Carson can perform. Although

this number is substantially less than the total number of regional jobs in all four

categories originally cited by the ALJ, we could uphold the denial of benefits

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based on Mr. Carson’s ability to perform this single 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 this job would not be legally

sound.

At the time he filed for disability benefits, as well as at the time the ALJ

issued his decision, Mr. Carson was closely approaching 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 can perform 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 monitor–cannot support a

finding that he is not disabled. 5

Mr. Carson did not raise this argument in the district 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,

5
As Mr. Carson notes, the same is true of all the unskilled sedentary jobs the
VE identified; none can support a finding that he is not disabled.

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however, and in unusual circumstances we will exercise 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 circumstances, rather than deem the

matter waived, we will consider the legal infirmity of 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 proper for the ALJ to rely on

any of the jobs he recited in his decision to support a step-five finding that

Mr. Carson was not disabled. We must therefore reverse and remand for further

proceedings so that the ALJ can properly determine through additional VE

testimony if there are, in fact, any unskilled light 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 and is now a person of advanced

age. See 20 C.F.R. § 404.1563(e). As such, he is now considered disabled under

the grids even if he can perform a full range of either unskilled light or sedentary

work. Id. , Pt. 404, Subpt. P., App. 2, Rule 202.06 (light), Rule 201.06

(sedentary).

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 IV. Reopening of Prior Claim

Mr. Carson’s final argument on appeal relates to his earlier application for

disability benefits filed in June 1999. An ALJ denied 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 res judicata to the prior

application.

The regulations permit the Commissioner to reopen a decision on a

previous application for any reason within twelve months of the date of notice of

the initial determination and to reopen within four years 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 was previously denied, “the

application is considered reopened as a matter of administrative 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 beginning of the hearing

if there was any reason to reopen the decision on the prior application, and the

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attorney said there was not. The ALJ did not mention the prior application

thereafter or suggest in his decision that he was reconsidering 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 previously rejected the

argument that “an examination of medical evidence from 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 not even mention previous

application in his decision and holding that “the mere allowance of evidence from

the earlier applications, without more, cannot be considered 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 court with directions to remand

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it to the Commissioner for further proceedings consistent with this order and

judgment.

Entered for the Court

Bobby R. Baldock
Circuit Judge

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