Barbara Combs v. Commissioner of Social Security , 459 F.3d 640 ( 2006 )

ROGERS, Circuit Judge.

This case presents the question of whether a change in a rule governing the adjudication of social security disability benefits claims that is applied as of its effective date to all pending cases has an impermissibly retroactive effect. In 1999 the Social Security Administration required more detailed proof of disability from obese claimants by eliminating a presumption of disability for obesity. Such presumptions govern the process of administrative adjudication. Changes to such rules, therefore, have their primary effect on claimants’ applications when the claimants appear before the agency to have their claims decided on the merits. The change in the rule is thus not impermissi-bly retroactive.

Plaintiff Barbara Combs initially filed an application for social security disability benefits in November of 1996. At that time, the Social Security Administration (SSA) afforded obese claimants a generous presumption of disability. The Social Security Commissioner deleted obesity from the list of conditions that benefit from this presumption in 1999. In 2003 Combs’ claim came before an Administrative Law Judge (ALJ) on remand from an administrative appeal. The ALJ denied her claim for benefits due in part to the deletion of this obesity listing. Combs appealed the decision administratively without success. She then filed suit in federal district court. There Combs argued that the agency had exceeded its powers granted by the Social Security Act (the Act) by applying the changed listings to her claim retroactively. The Act does not generally give the SSA the power to promulgate retroactive regulations. 42 U.S.C. § 405(a); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213 & n. 3, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988).

The district court rejected Combs’ arguments, holding that the SSA had properly determined her eligibility for benefits without analyzing the deleted listing. This appeal followed. Because the changed listing had its effect on Combs’ claim after its effective date, when Combs’ claim was administratively adjudicated, it was not im-permissibly retroactive in its effect. Moreover, the distinct court correctly concluded that the Agency’s determination in this case is supported by substantial evidence. We therefore affirm.

An understanding of the effect of the change in the regulation requires a brief look at the five-step procedure used by the SSA to determine eligibility for disability benefits. The Act entitles to benefits payments certain claimants who, by virtue of a medically determinable physical or mental impairment of at least a year’s expected duration, cannot engage in “substantial gainful activity.” 42 U.S.C. § 423(d)(1)(A). Such claimants qualify as “disabled.” Id. A claimant qualifies as disabled if she cannot, in light of her age, education, and work experience, “engage in any other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). To identify claimants who satisfy this definition of disability, the SSA uses a five-step “sequential evaluation process.” 20 C.F.R § 404.1520(a)(4). The five steps are as follows:

In step one, the SSA identifies claimants who “are doing substantial gainful activity” and concludes that these claimants are not disabled. Id. § 404.1520(a)(4)(i). If claimants get past this step, the SSA at step two considers the “medical severity” of claimants’ impairments, particularly whether such impairments have lasted or will last for at least twelve months. Id. § 404.1520(a)(4)(ii). Claimants with impairments of insufficient duration are not disabled. See id. Those with impairments that have lasted or will last at least twelve months proceed to step three.

At step three, the SSA examines the severity of claimants’ impairments but with a view not solely to their duration but also to the degree of affliction imposed. Id. § 404.1520(a) (4)(iii). Claimants are conclusively presumed to be disabled if they suffer from an infirmity that appears on the SSA’s special list of impairments, or that is at least equal in severity to those listed. Id. § 404.1520(a)(4)(iii), (d). The list identifies and defines impairments that are of sufficient severity as to prevent any gainful activity. See Sullivan v. Zebley, 493 U.S. 521, 532, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990). A person with such an impairment or an equivalent, consequently, necessarily satisfies the statutory definition of disability. For such claimants, the process ends at step three. Claimants with lesser impairments proceed to step four.

In the fourth step, the SSA evaluates claimants’ “residual functional capacity,” defined as “the most [the claimant] can still do despite [her] limitations.” 20 C.F.R. § 404.1545(a)(1). Claimants whose residual functional capacity permits them to perform their “past relevant work” are not disabled. Id. § 404.1520(a)(4)(iv), (f). “Past relevant work” is defined as work claimants have done within the past fifteen years that is “substantial gainful activity” and that lasted long enough for the claimant to learn to do it. Id. § 404.1560(b)(1). Claimants who can still do their past relevant work are not disabled. Those who cannot do their past relevant work proceed to the fifth step, in which the SSA determines whether claimants, in light of their residual functional capacity, age, education, and work experience, can perform “substantial gainful activity” other than their past relevant work. See id. § 404.1520(a)(4)(v), (g)(1). Claimants who can perform such work are not disabled. See id.; § 404.1560(c)(1). The SSA bears the burden of proof at step five. See Jones v. Comm’r ofSoc. Sec., 336 F.3d 469, 474 (6th Cir.2003).

For use at step three, the Commissioner has promulgated an extensive list of impairments. See generally 20 C.F.R. Part 404, Subpart P, Appx. 1 (2005). The list includes dozens of conditions, ranging from problems of the musculoskeletal system to skin disorders to malignant neoplastic diseases. See id. As late as 1999, obesity was a listed impairment. 20 C.F.R. Part 404, Subpart P, Appx. 1, § 9.09 (1999). The 1999 listing for obesity stated:

9.09 Obesity. Weight equal to or greater than the values specified in Table I for males, Table II for females (100 percent above desired level), and one of the following:

A. History of pain and limitation of motion in any weight-bearing joint or the lumbosacral spine (on physical examination) associated with findings on medically acceptable imaging techniques of arthritis in the affected joint or lum-bosacral spine; or

B. Hypertension with diastolic blood pressure persistently in excess of 100 mm. Hg measured with appropriate size cuff; or

C. History of congestive heart failure manifested by past evidence of vascular congestion such as hepatomegaly, peripheral or pulmonary edema; or

D. Chronic venous insufficiency with superficial varicosities in a lower extremity with pain on weight bearing and persistent edema; or

E. Respiratory disease with total forced vital capacity equal to or less than 2.0 L. or a level of hypoxemia at rest equal to or less than the values specified in Table III-A or III-B or III— C.

Id.

The Commissioner deleted listing 9.09 effective October 25, 1999, following notice and comment. 64 Fed.Reg. 46122, 46123 (Aug. 24, 1999). The Commissioner explained this decision by noting that the criteria in listing 9.09 “were not appropriate indicators of listing-level severity because they did not represent a degree of functional limitation that would prevent an individual from engaging in any gainful activity.” Id. at 46124. In its program and adjudicative experience, the SSA became convinced that the listing had “required findings of disability in some cases in which the claimants were clearly not ‘disabled’ as defined in the Act.” Id. at 46125. Although obesity was no longer a separately listed impairment under step three, the Commissioner explained that obese claimants can still prevail at step three by proving that their obesity combined with other ailments equals the severity of a different listed impairment. See id. at 46123. Indeed, the Commissioner simultaneously amended the introductory text to the musculoskeletal, respiratory, and cardiovascular systems listings to give guidance regarding obesity’s potential to combine with other impairments at step three. See id. at 46123, 46128-29.

The deletion of listing 9.09, the Commissioner stated in response to comments, would have prospective effect only. See id. at 46127. “We will not review prior allowances based on listing 9.09 under the new rules,” the agency explained. Id. The revised listings were to apply to pending applications for benefits, i.e., claims filed but not yet finally adjudicated before listing 9.09 was deleted. See Social Security Ruling, SSR 02-1 p; Titles II and XVI: Evaluation of Obesity, 67 Fed.Reg. 57859, 57863 (Sept. 12, 2002); Social Security Ruling, SSR 00-3 p; Titles II and XVI: Evaluation of Obesity, 65 Fed.Reg. 31039, 31042 (May 15, 2000) (superseded by SSR 02-1 p).

Combs first filed for disability benefits with the SSA on November 4, 1996. She alleged in her application that she had been disabled since May 30, 1996, due to a wide variety of impairments. The SSA initially denied Combs’ application in December of 1996, and upon reconsideration a few months later in February of 1997. Combs requested a hearing before an ALJ later that year in August. The ALJ denied Combs’ request for a hearing in January of 1998. Combs appealed the 1998 denial to the Appeals Council. The Council reversed the ALJ’s decision in October of 1998, granting Combs’ request for a hearing. In the subsequent hearing in March of 1999, the ALJ denied Combs’ claim under the five-step test. The ALJ did not find that Combs’ obesity and other impairments were severe enough for her to prevail at step three under listing 9.09 for obesity or any other listing. The ALJ denied her claim at step five. Combs appealed the ALJ’s decision administratively.

During the pendency of her administrative appeal, the Agency deleted listing 9.09 for obesity on October 25, 1999. The Appeals Council in March of 2000 vacated the ALJ’s 1998 denial of benefits and remanded Combs’ claim for further consideration. On remand, the ALJ in September of 2001 again at step five determined that Combs was not disabled. The ALJ observed at step three that Combs’ medically determinable “impairments do not meet or medically equal one of the listed impairments” needed for her to prevail. Admin. R. at 213. Combs appealed once again. In September of 2002, the Appeals Council vacated the ALJ’s 2001 decision and remanded the matter to a different ALJ.

This second ALJ issued a decision on February 21, 2003, denying Combs’ claim at step five. The ALJ identified Combs’ medically determinable impairments and concluded, like the previous ALJ, that they “do not meet or medically equal one of the listed impairments” that could entitle her to benefits at step three. Admin. R. at 27. Combs administratively appealed again, this time without success. The second ALJ’s 2003 denial of benefits became the Agency’s final decision.

Combs sought review of the 2003 denial of benefits in the district court below. The district court granted the SSA’s motion for summary judgment, thereby upholding the 2003 denial of benefits. In its opinion, the district court held that the agency’s determination was supported by substantial evidence. The district court also concluded that the SSA acted properly when it did not apply former listing 9.09 to Combs’ claim, because that listing had been deleted prior to the 2003 hearing.

The district court properly refused to require the SSA to apply listing 9.09, notwithstanding the fact that Combs’ claim was initially filed before the deletion of that listing. Combs argues that the application of the current version of the listing was improper because application of the current listing had a retroactive effect on Combs, by virtue of the fact that she had filed her claim before the change in the listing.

While Congress has the power to permit the SSA to promulgate retroactive regulations, Congress generally has not done so. Bowen, 488 U.S. at 213 & n. 3, 109 S.Ct. 468. Neither party in this case argues that Congress has authorized the SSA to promulgate regulations that would operate “retroactively,” where such retroactivity is of the type that would be presumed to be against the intent of Congress if the provision were contained in a statute. We accordingly assume, for purposes of our analysis of whether the regulation at issue in this case is consistent with the statute, that we are to apply the same analysis that we would apply in determining whether a statute — unless construed otherwise — operates retroactively so as to invoke the Supreme Court’s presumption against ret-roactivity. In other words, the regulations as of October 25, 1999, are consistent with the Social Security Act if they are not retroactive under the tests that the Supreme Court has used to determine whether certain unclear federal statutes operated retroactively. In Landgraf v. USI Film Products, the Court held that the application to pre-amendment activity of amendments to Title VII of the Civil Rights Act, newly providing for compensatory and punitive damages, would violate the presumption against retroactive legislation. 511 U.S. 244, 247, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Later in Republic of Austria v. Altmann, the Court held that application to pre-statute activity of exceptions to sovereign immunity contained in the 1976 Foreign Sovereign Immunities Act did not violate the presumption against retroactive legislation. 541 U.S. 677, 692-700, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004). Assuming the applicability of the Landgraf-Altmann distinction to the issue of agency power presented in this case, it is apparent that the regulatory change in this case is not impermissibly retroactive.

As Landgraf teaches, not all statutes raise retroactivity concerns. “A statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute’s enactment ....” 511 U.S. at 269, 114 S.Ct. 1483; Campos v. INS, 16 F.3d 118, 122 (6th Cir.1994); Patel v. Gonzales, 432 F.3d 685, 690 (6th Cir.2005). The application of law existing at the time of decision does not violate the presumption against retroactivity unless the statute in question has retroactive effects. Landgraf, 511 U.S. at 269-70, 114 S.Ct. 1483; Patel, 432 F.3d at 690. A statute has retroactive effects if the statute

attaches new legal consequences to events completed before its enactment. The conclusion that a particular rule operates “retroactively” comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event.... [Fjamiliar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance.

Landgraf, 511 U.S. at 270, 114 S.Ct. 1483.

The factors articulated in Landgraf — fair notice, reasonable reliance, and settled expectations — weigh against finding a retroactive effect. See id. at 269-70, 114 S.Ct. 1483. It can hardly be argued that claimants become obese or otherwise become impaired in reliance on the availability of the presumption in the listing. Nor is there any indication that they file them claims, or decide what to put in their claims, based on how the agency determines whether they meet the statutory requirements for disability eligibility. Similarly, claimants have no settled expectation that the agency will use one as opposed to another algorithm for determining whether the statutory requirements are met. Finally, there is no basis for claimants to argue that they need “fair notice” of a change in the step three presumptions.

This analysis tracks precisely the reasoning of our recent decision in Patel v. Gonzales. In that case we dealt with two versions of a statutory provision for discretionary waiver of removal of relatives of U.S. citizens. The older version applied to parents, spouses, or children of U.S. citizens; the newer version did not apply to parents. We held that the newer version applied to the Patels, even though they fraudulently entered the United States (i.e., committed the acts that formed the basis for their removal) before the change in the statute. Application of the later version of the statute was not impermissi-bly retroactive because

The factors articulated in Landgraf— fair notice, reasonable reliance, and settled expectations — weigh against finding a retroactive effect. In likelihood, Petitioners did not enter the United States through fraud in reliance on the availability of the discretionary waiver. Nor did Petitioners have a settled expectation, given the fact that Petitioners’ son was not a naturalized citizen in 1993, that they would receive a discretionary waiver based on their relationship with their son. Finally, unless Petitioners had notice of the waiver in the first place, they cannot rely on the argument that they need “fair notice” of the change.

Patel, 432 F.3d at 691 (citation omitted). It is less likely that Combs became impaired in reliance on the unamended listing than that the Patels entered the United States fraudulently in reliance on the availability of a discretionary waiver.¹ It is less apparent that Combs had a settled expectation that a certain procedure would apply to her in the determination of her disability than that the Patels had a settled expectation that their son would become a U.S. citizen, thereby entitling them to seek a waiver. And finally, there is no more basis for saying Combs needed “fair notice” of the listing change than for saying the Patels needed notice of the change in the availability of a discretionary waiver. Our decision in Patel thus strongly supports our conclusion that the listing change was not impermissibly retroactive with respect to Combs.

Moreover, the Supreme Court in Land-graf and Altmann, and our court in Patel, have recognized that changes to procedural rules generally do not have retroactive effect because procedural rules regulate secondary as opposed to primary conduct. See Landgraf, 511 U.S. at 275, 114 S.Ct. 1483; Altmann, 541 U.S. at 693, 124 S.Ct. 2240; Patel, 432 F.3d at 690. In contrast, rules that deprive persons of vested substantive rights may have retroactive effects if applied to conduct occurring prior to their enactment. See Landgraf, 511 U.S. at 272, 114 S.Ct. 1483, Altmann, 541 U.S. at 693, 124 S.Ct. 2240; Patel, 432 F.3d at 690. Thus, the Supreme Court has distinguished between provisions involving the right to a jury and the lifting of sovereign immunity as being on the non-substantive side of the line, while the addition of new elements of damages are on the substantive side of the line. See Altmann, 541 U.S. at 696, 124 S.Ct. 2240 (foreign sovereign immunity); Landgraf, 511 U.S. at 280-81, 114 S.Ct. 1483 (right to a jury trial is procedural but new right to compensatory and punitive damages is substantive). Applying this distinction, the change in step three is more procedural than substantive in nature. The ultimate criteria of disability eligibility are not changed. Instead, a presumption designed for administrative workability was changed to conform agency determinations more closely with the statutory requirements. While the change may be outcome-determinative for some claimants, the same can be said for a jury trial right or the lifting of an immunity. The difference has to do with whether there is a change in substantive obligation as opposed to a change in the way in which the same obligation is adjudicated. In that light, the change in administrative presumption in step three is more like the latter. The substantive requirements for disability eligibility have not changed, only the way in which the agency goes about determining whether they are present. Doubtless there are situations in which a procedural rule will have such substantive effects, see Landgraf, 511 U.S. at 275 n. 29, 114 S.Ct. 1522 (“[n]or do we suggest that concerns about retroactivity have no application to procedural rules”), but the modification of the step three listing does not fall on the substantive side of the distinction.

Our conclusion is buttressed by the requirement — suggested in Landgraf and emphasized in Altmann — that we focus on the “relevant conduct regulated by the [legislative provision]” to determine whether the provision is impermissibly retroactive. In Landgraf, the Supreme Court explained that “[t]he conclusion that a particular rule operates ‘retroactively’ comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event.” 511 U.S. at 270, 114 S.Ct. 1483 (emphasis added). The Altmann Court focused on this aspect of the Landgraf analysis. It reasoned that the past event relevant to whether a limitation on foreign sovereign immunity was retroactive was the claim of immunity, not the underlying government action that was the basis for the lawsuit. See Altmann, 541 U.S. at 697-98, 124 S.Ct. 2240. The Foreign Sovereign Immunities Act was intended to change the framework for determining liability of foreign states, more than the substantive content of that liability. See id. In making this analysis the Court quoted with approval the following passage from Justice Scalia’s Landgraf concurrence:²

The critical issue, I think, is not whether the rule affects ‘vested rights,’ or governs substance or procedure, but rather what is the relevant activity that the rule regulates. Absent clear statement otherwise, only such relevant activity which occurs after the effective date of the statute is covered. Most statutes are meant to regulate primary conduct, and hence will not be applied in trials involving conduct that occurred before their effective date. But other statutes have a different purpose and therefore a different relevant retroactivity event.

Id. at 697 n. 17, 124 S.Ct. 2240 (quoting Landgraf, 511 U.S. at 291, 114 S.Ct. 1483 (Scalia, J., concurring in judgment)).

A focus on the “relevant activity” in this case leads inexorably to the conclusion that the change in the regulation was not impermissibly retroactive. The relevant activity is the agency application of the five-step procedure, not the date when claimant asserts that disability started, or the date the claim is filed. This is because it is the application of the five-step process that the regulatory change is directed toward, not the substantive basis for disability eligibility. In other words, the regulatory change had no retroactive effect because the presumption defined by the listing is a rule of adjudication and therefore has its effect on claims at the time of adjudication.

The October 1999 listing did not operate retroactively here because, as part of step three in the sequential evaluation process, it regulated only the process of adjudicating social security disability benefits claims — i.e., adjudicatory conduct — -and the adjudicatory conduct regulated here took place years after these listings went into effect when Combs’ claim was finally adjudicated by the SSA.

The entire five-step sequential evaluation process has been designed to regulate adjudicatory conduct for the purpose of making adjudication of claims efficient and flexible. Step three regulates a narrow category of adjudicatory conduct, also to promote adjudicatory efficiency. See Bowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). Step three governs the organization of evaluation of proof of listed impairments that, if supplied, renders entitlement to benefits a foregone conclusion. See id. (noting that step “three streamlines the decision process by identifying those claimants whose medical impairments are so severe that it is likely they would be found disabled regardless of their vocational background.”) (emphasis added); Sullivan v. Zebley, 493 U.S. 521, 532, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990) (observing that the regulations “set the medical criteria defining the listed impairments at a higher level of severity than the statutory standard”). Step three effectively allows the SSA to skip the extensive and costly factual inquiry of steps four and five in obvious cases. See Yuc-kert, 482 U.S. at 153,107 S.Ct. 2287. As a tool for efficient and organized administrative adjudication, step three regulates the orderly evaluation and presentation of proof of listed impairments. Changes to these listings consequently have their effect on benefits applications when claimants reach step three in the process of adjudicating their claims.

A rule regulating the evaluation and presentation of proof does not normally operate retroactively if it is applied to pending cases. The SSA may freely change rules that purely govern the conduct of adjudication, without fear of retroactive effect, if those changes apply only to pending cases. Naturally, if the SSA had attempted to retry cases that had been adjudicated previously, that might be a different story. But that did not happen here. The application of the October 1999 listing to Combs’ claim was prospective.

Our upholding of the application of the revised listing to pending applications is supported by the unpublished opinion, albeit cursory in this regard, of the Seventh Circuit in Barthelemy v. Barnhart, 107 Fed.Appx. 689, 693 (7th Cir.2004).

We recognize that several district court cases and one unpublished circuit court opinion have stated or assumed that applying the October 1999 listing to pending claims has an impermissibly retroactive effect. Nash v. Apfel, 215 F.3d 1337, 2000 WL 710491 (10th Cir. June 1, 2000), 2000 U.S.App. LEXIS 12030 ; Cherry v. Barnhart, 327 F.Supp.2d 1347 (N.D.Okla.2004); Portlock v. Barnhart, 208 F.Supp.2d 451 (D.Del.2002); Kokal v. Massanari, 163 F.Supp.2d 1122 (N.D.Cal.2001). The reasoning of these cases is not compelling.

The Tenth Circuit’s opinion in Nash is not compelling for several reasons. The unpublished opinion devotes several sentences to the requirement that the SSA regulations not be retroactive, but assumes without explanation that the change in the listing is impermissibly retroactive. See 2000 WL 710491, at *1-*2, 2000 U.S.App. LEXIS 12030, at *4-*6. There is no discussion of what past event the change in the regulation relates to, for purposes of drawing the Landgraf-Altmann distinction. Moreover, in Nash the old listing had not been repealed at the time of the agency adjudication, and was only repealed during the pendency of judicial review. See id. In addition, the Tenth Circuit upheld the denial of disability even under the old listing, thus further lessening any precedential weight of the Tenth Circuit opinion. See id. 2000 WL 710491, at *3, 2000 U.S.App. LEXIS 12030, at *8-*10.

Kokal and Portlock, two district court opinions, rely upon the assertion that “Plaintiffs rights would be substantively altered if the revision to 20 C.F.R. pt. 404, subpt. P, app. 1 [deleting listing 9.09] was deemed applicable to pending claims, because the revised regulation would raise the bar on proof of disability based on obesity.” Kokal, 163 F.Supp.2d at 1131; see also Portlock, 208 F.Supp.2d at 461-62 (following Kokal). While deletion of listing 9.09 indeed requires more detailed proof with respect to obese claimants, that fact as explained above does not establish that their rights have been “substantively altered.” The SSA deleted listing 9.09 precisely because some clearly non-disabled obese claimants were getting benefits to which they were not entitled. See 64 Fed.Reg. at 46125. By reducing the number of erroneous benefits awards to non-disabled people, the SSA has restricted no actual substantive rights.

The actual substantive right to benefits derives from the Act’s definition of disability, not step three. Combs does not argue that deleting listing 9.09 created a conflict between the Act’s definition of disability and the sequential evaluation process. Such a conflict might result if deleting listing 9.09 truly altered claimants’ substantive rights to benefits, but instead it provides a more accurate way of determining the substantive right to benefits resulting from obesity. For this reason, Kokal and Portlock are not persuasive.

In harmony with Kokal, the district court in Cherry concluded that applying the October 1999 listing to pending claims has a retroactive effect on claimants who filed their claims before the new listing became effective. 327 F.Supp.2d at 1358-59. The Cherry court said that the past “act” to which the changed listing attached new legal consequences “is the filing of a claim.” Id. at 1358. The Cherry court identified no new legal consequences that the October 1999 listing attached to the “act” of filing a claim. A change in step three requiring more detailed proof simply does not attach new legal consequences to the act of filing a claim.

The application of the revised listing to claims filed before the change is accordingly not retroactive in a way that would make the regulation beyond the authorized rulemaking power of the Commissioner.³

Finally, the district court correctly held that the record as a whole contains substantial evidence supporting the second ALJ’s denial of Combs’ benefits claim. Combs argues, however, that the ALJ gave too little force to the reports of Combs’ primary treating specialist, Dr. James Templin, and was too trusting of “non-examining state agency physicians” whose reports date back to 1996 and 1997.

The ALJ stated, “[u]pon reviewing all of the evidence of the record, the undersigned Administrative Law Judge concludes that claimant is not disabled within the meaning of the Social Security Act.” Admin. R. at 22. The ALJ found that Combs still had the residual functional capacity to perform light and sedentary work, her impairments notwithstanding. See Admin. R. at 26, 27. The ALJ based much of his decision on the 2001 ALJ’s recitation of the medical evidence, see Admin. R. at 23, which relied on the examinations and opinions of Dr. Anthony Uy, a state agency physician consultant. See Admin. R. at 209-10 (relying on Dr. Uy), 469-76 (Dr. Uy’s findings). The ALJ stated that he “substantially concurs with, adopts, and incorporates by reference the recitation of the medical evidence contained in the decision dated September 21, 2001.” Admin. R. at 23. The ALJ also noted that Combs had supplied some new evidence of disability.

Dr. Uy found that Combs could lift and carry up to 20 pounds frequently, could stand or walk for up to 6 hours, and could sit without medical limitation. See Admin. R. at 474. Dr. Uy also found that Combs was capable of climbing and balancing frequently. See Admin. R. at 475. When the ALJ incorporated the 2001 ALJ’s recitation of the evidence, he incorporated the 2001 ALJ’s rationale discounting Dr. Templin’s residual functional capacity determination. See Admin. R. at 205-07. In October of 1997, according to the 2001 ALJ, Dr. Templin in effect found that Combs could not perform any gainful work, not even sedentary work. See Admin. R. at 206. Specifically, the 2001 ALJ related that Templin precluded Combs from

any lifting and limited standing and walking to two-and-a-half hours total of an eight-hour workday with only 30 minutes uninterrupted. She could only sit a total of four hours and only one hour at any one time. Nor could she ever climb, balance, stoop, crouch, kneel or crawl. Reaching and handling were affected and [Templin] precluded [Combs] from pushing and pulling on an incline or over rough terrain.... [Templin also] restricted] her from working in humidity or with vibration.

Admin. R. at 206 (emphasis in original). By virtue of his incorporation of the 2001 ALJ’s recitation of the evidence into his own determination, the ALJ agreed with the 2001 ALJ that others of Dr. Templin’s many medical assessments of Combs were inconsistent with this assessment, and that Dr. Templin was therefore less than credible. See Admin. R. at 206. For example, the 2001 ALJ noted that in other residual functional capacity assessments in 1999 and 2000, Dr. Templin said that Combs could lift or carry up to 20 pounds. See Admin R. at 206 (2001 ALJ’s comments), 434 (Templin report dated July 22, 2000), 461 (Templin report dated January 6, 1999). The 2001 ALJ noted further that although Dr. Templin had said that Combs should not sit for more than one hour at a time, Combs “nonetheless engages in such sedentary activities as ‘spending] the day’ watching television.” Admin. R. at 206 n.5. The 2001 ALJ also noted that Dr. Templin’s medical assessments “do not withstand the test of objective and clinical findings.” Admin. R. at 207.

At step five of the sequential evaluation process, the ALJ relied on expert testimony and concluded that Combs could perform a significant number of jobs in the economy. See Admin R. at 26-27; Bom v. Sec’y of Health and Human Servs., 923 F.2d 1168, 1174 (6th Cir.1990). In a 1999 hearing vocational expert testimony indicated that a hypothetical person with Combs’ characteristics could do light or sedentary work as an information clerk, general office clerk, or security monitor. See Admin R. at 90-91. In a 2001 hearing, a vocational expert stated that someone with attributes like Combs’ could work as a service station attendant or cafeteria attendant. Admin. R. at 116-17. In a 2003 hearing, a vocational expert testified that a hypothetical person like Combs could work as an assembler of parts and components, and as a weigher, measurer, and inspector. Admin. R. at 162. Based on such testimony, the ALJ found that Combs’ impairments permitted her “to perform a significant range of light work.” Admin. R. at 25, 27. The ALJ concluded that Combs was not under a disability as defined in the Act. See Admin R. at 28.

Combs objects mainly to the ALJ’s discounting of Dr. Templin’s residual functional capacity determination and his crediting of Dr. Uy’s assessment. Given the lack of objective evidence of disability in Dr. Templin’s reports and the ALJ’s other observations, the ALJ could discount his opinion. As we held in Bogle v. Sullivan, 998 F.2d 342, 347-48 (6th Cir.1993), a social security ALJ may properly discount a treating physician’s opinion of disability: “[t]his court has consistently stated that the Secretary is not bound by the treating physician’s opinions, and that such opinions receive great weight only if they are supported by sufficient clinical findings and are consistent with the evidence.”

There is substantial evidence in the record as a whole to support the ALJ’s determination that Combs is not disabled.

For the foregoing reasons, the district court’s judgment is affirmed.

GILMAN, Circuit Judge, concurring in the judgment.

“Any test of retroactivity,” the Supreme Court has acknowledged, “will leave room for disagreement in hard cases.” Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S.Ct. 1483 (1994). As the four opinions produced today demonstrate, this is such a case. The case is made even more unique by the lengthy administrative proceedings required to adjudicate Barbara Combs’s application for disability benefits. Had her claim been decided in the normal course, the process would have ended before the rule change, and there would have been no controversy over which rule to apply.

As luck would have it, however, the rule as applied to Combs’s claim did change in the middle of the game. The Commissioner’s decision to apply the new rule has prompted my colleagues, almost seven years after that change, to spar at length over whether it was substantive or procedural in nature. Of the two positions articulated on that issue, I find Judge Clay’s dissent and Judge Griffin’s separate opinion more persuasive than the lead opinion in explaining why a shift in the burden of proof, or analogous changes that directly affect a party’s prospects for success on the merits, are substantive rather than procedural. In particular, I find both persuasive and apposite the D.C. Circuit’s decision in National Mining Association v. Department of Labor, 292 F.3d 849 (D.C.Cir.2002) (per curiam), a case that counsel for the Commissioner was unable to distinguish at oral argument and that the lead opinion unconvincingly attempts to explain away. Lead Op. at 650-51 n.3.

I also believe, however, that both the lead opinion and the dissent have failed to see the forest for the trees by allowing these labels — substantive and procedural — to dictate the outcome of this appeal. See Lead Op. at 649 (“The substantive requirements for disability eligibility have not changed, only the way in which the agency goes about determining whether they are present.”); Dissent at 671-72 (“Because the deletion of Listing 9.09 was a substantive change, our analysis should be concluded[.]”). The Supreme Court has cautioned against basing a finding that a particular change in the law operates retrospectively on the particular label attached to that change. See Martin v. Hadix, 527 U.S. 343, 359, 119 S.Ct. 1998, 144 L.Ed.2d 347 (1999) (“When determining whether a new statute operates retroactively, it is not enough to attach a label Ce.g., ‘procedural,’ ‘collateral’) to the statute[.]”).

Heeding that warning, I cannot agree with the dissent that applying the new rule to Combs’s application is impermissibly retroactive simply because the legal change is more substantive than procedural in nature. Nor do I find persuasive the argument that Combs “planned for the possibility of becoming disabled in reliance on the disability benefits scheme available at the time,” or that “her disability planning would have been significantly different” had she known about possible changes in the rules. Dissent at 674-75.

At the same time, I remain unconvinced by key aspects of the lead opinion, including its reliance on Republic of Austria v. Altmann, 541 U.S. 677, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004), and its conclusion that the relevant date for retroactivity purposes is “the time of adjudication.” See Lead Op. at 619. I find more compelling the decision in National Mining Association, 292 F.3d at 860, where the D.C. Circuit considered the relevant date to be the date when the miners’ disability claims were filed. The lead opinion also minimizes the impact of deleting the obesity listing by coining a new phrase, “adjudicatory conduct,” which it says is all that the regulatory change affected. Lead Op. at 619. Although I do not understand the lead opinion to be carving out an entire category of agency activity immune from retroactivity concerns, I still cannot join the lead opinion in creating a new concept whose scope and significance are unclear. Finally, for the reasons explained in Judge Clay’s dissent, I do not believe that the remedy proposed by Judge Griffin in his separate opinion is viable under the governing Social Security regulations. Dissent at 672 n.5.

I am thus left with the Supreme Court’s general guidance from Landgraf. There, the Court cited with approval Justice Story’s description of an impermissibly retroactive statute as one that “takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability.” Landgraf 511 U.S. at 269, 114 S.Ct. 1483 (citations and quotation marks omitted); id. at 280, 114 S.Ct. 1483 (explaining that a court deciding a retroactivity question must ask whether applying the new statute or regulation “would impair rights a party possessed when he acted, increase his liability for past conduct, or impose new duties with respect to transactions already completed”). Deciding whether “a statute operates ‘retroactively’ is not always a simple or mechanical task,” the Court advised, and courts should make the retroactivity determination by taking into account “familiar considerations of fair notice, reasonable reliance, and settled expectations.” Id. at 268, 270, 114 S.Ct. 1483.

I concur in the judgment affirming the decision below principally because I am not convinced that applying the new rule to Combs’s claims for benefits impaired any “vested right” that Combs may have had, increased her liability “for past conduct,” or “impose[d] new duties” on her with respect to a completed transaction. See id. at 269, 280, 114 S.Ct. 1483 (citation and quotation marks omitted). The First Circuit, under similar circumstances, held that “the mere filing of an application is not the kind of completed transaction in which a party could fairly expect stability of the relevant laws as of the transaction date.” Pine Tree Med. Assocs. v. Sec. of Health and Human Servs., 127 F.3d 118, 121 (1st Cir.1997). In Pine Tree Medical Associates, the plaintiff, a provider of healthcare services, requested that a government agency designate a town as a “medically underserved population,” or MUP. Id. at 120. Healthcare providers that serve MUPs may be eligible “for substantial, cost-based reimbursement under Medicare and Medicare programs.” Id. The agency altered the guidelines used to make the MUP determination after the provider had submitted an application but before the agency had ruled on the application. Using the new guidelines to evaluate the provider’s request, the agency then denied the application. Id.

The First Circuit found no retroactivity problem with the use of the new guidelines, squarely rejecting “the proposition that filing an application with an agency essentially fixes an entitlement to the application of those substantive regulations in force on the filing date.” Id. at 122 (emphasis in original). I would follow this reasoning and reject Combs’s retroactivity challenge on the ground that she had no settled expectation — let alone a vested right — in the use of the “substantive regulations in force” when she filed her disability claim. See id. The fact that the change may have been fatal to the success of her claim does not alter the conclusion that Combs had no right to expect that filing an application would freeze the law in its then-current state.

In my view, there is a faint yet discernible line that separates Pine Tree Medical Associates and the present case on the one hand from cases like Landgraf and National Mining Association on the other. That line is the one between (1) applying a new statute or regulation that might deny an applicant benefits being sought from a governmental body, and (2) applying a new statute or regulation that imposes liability on a private party that the party would not have incurred under existing law. Thus, the Supreme Court in Landgraf held that a statutory provision awarding compensatory damages could not be applied “to events antedating its enactment.” 511 U.S. at 283, 114 S.Ct. 1483. The Court reasoned that such damages “affeet[ed] the liabilities of defendants” for past conduct and constituted “the type of legal change that would have an impact on private parties’ planning.” Id. at 282, 114 S.Ct. 1483.

Similarly, the D.C. Circuit in National Mining Association declared impermissi-bly retroactive one regulation that created a rebuttable presumption in favor of the applicant and another that expanded the scope of the employers’ liability “by making more dependents and survivors eligible for benefits.” 292 F.3d at 865-868. The former regulation increased the likelihood that mining companies would be held liable for past conduct, whereas the latter altered the amount that the companies would be required to pay in the event that they were found liable. See id. Like the statutory provisions at issue in Landgraf, therefore, the regulations both increased the mining companies’ potential liability for past conduct and impacted the companies’ planning by altering the cost/benefit calculus of operators and insurers. To put the issue in Landgraf’s parlance, the regulations “attache[d] new legal consequences to events completed before [their] enactment.” 511 U.S. at 270, 114 S.Ct. 1483.

In both Pine Tree Medical Associates and in the present case, in contrast, the change in the administrative regulations did not impose any kind of liability on either the healthcare provider or Combs, respectively. What the healthcare provider lost was a more favorable regulatory scheme that might have increased its chances of securing reimbursement, just as Combs lost a provision that might have entitled her to a conclusive finding of disability. Both of these parties, in other words, saw a more favorable regulation replaced with one that, while still permitting them to prove their entitlement to the requested funds, made their eventual success less likely. Awareness that the law might change during the application process, however, would not have dissuaded either applicant from seeking the benefits in the first place. That is to say, the possibility of change did not “impact” the “parties’ planning.” Landgraf, 511 U.S. at 282, 114 S.Ct. 1483.

I also do not believe that the rule change in the present case, or the one in Pine Tree Medical Associates, “attache[d] new legal consequences” to completed events. See id. at 270, 114 S.Ct. 1483. The applications for prospective governmental benefits in these cases simply do not constitute “completed events” that engender any justifiable reliance on then-existing regulations. When Combs sought disability benefits, and when Pine Tree sought MUP status, the “legal consequence” of applying was either the grant or denial of the requested benefit. After the change in the law, the legal consequences remained exactly the same — ’the applicant either received or was denied the sought-after benefit. This stands in clear contrast to the examples of Landgraf (having to pay compensatory damages for past acts of discrimination) and National Mining Association (having to pay a larger number of beneficiaries), where the companies faced new kinds of liabilities for conduct undertaken before the passage of the laws at issue.

I recognize that the line that I have drawn is not perfect and that, like all such lines in the retroactivity context, it is susceptible to breaking down in extreme cases. See Landgraf, 511 U.S. at 270, 114 S.Ct. 1483 (noting that “[a]ny test of retro-activity ... is unlikely to classify the enormous variety of legal changes with perfect philosophical clarity”). One can imagine a scenario where an applicant for disability benefits organizes her proof around a controlling regulation, the administrative hearing is conducted pursuant to that regulation, and then the regulation changes before a decision is issued solely because the ALJ is a particularly slow drafter. Under those circumstances, the applicant may well have a “settled expectation” in an administrative decision rendered pursuant to the former regulation. But the present case, although difficult, does not raise the more complicated issues that might arise from an agency’s unreasonable and/or deliberate delay in resolving an application.

In sum, I agree with the lead opinion that the “familiar considerations of fair notice, reasonable reliance, and settled expectations” cut against finding that the application of the new obesity standard to Combs’s case was impermissibly retroactive. See Landgraf, 511 U.S. at 270, 114 S.Ct. 1483; Lead Op. at 646-47 & n. 1. Combs could not have had a “settled expectation” that the law would remain the same indefinitely, since almost every change in the law — as the Court has noted — is detrimental to some person’s interests. See Landgraf, 511 U.S. at 269 n. 24, 114 S.Ct. 1483 (giving examples of “uncontroversially prospective statutes” that “unsettle expectations and impose burdens on past conduct”). And although Combs undoubtedly relied on the availability of disability benefits when she submitted her application, the rule change did not deprive her of the ability to prove entitlement to those benefits, even if it did make her success less likely. In the end, I cannot say that the fact that the rule change adversely affected Combs’s chances of prevailing converted an otherwise permissible application of the current law into an impermissible one.

This last point — that applying the current law to pending cases is the rule rather than the exception — is the final consideration that informs my resolution of this case. We should not forget that at the heart of Landgmf is an attempt to reconcile two general principles of law that seemingly point in opposite directions: (1) that “a court should ‘apply the law in effect at the time it renders its decision,’ ” id. at 264, 114 S.Ct. 1483 (quoting Bradley v. School Bd. of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974)); and (2) that “ ‘congressional enactments and administrative rules will not be construed to have retroactive effect unless them language requires this result,’ ” id. (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988)).

As I read Landgmf, the Court resolved “the apparent tension” inherent in these principles by instructing that the current law be applied unless that law would have an impermissible retroactive effect as that concept is defined by the Court’s cases. Id. at 264, 114 S.Ct. 1483 (citation and quotation marks omitted); see id. at 269, 114 S.Ct. 1483 (emphasizing that “[a] statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute’s enactment ----”) (citation omitted). That is, application of the current law is the default position from which courts should stray only if one of the narrow fairness-based criteria set forth in Land-gmf is satisfied. See Patel v. Gonzales, 432 F.3d 685, 691 (6th Cir.2005) (“Courts should apply the law in effect at the time of the decision, unless such law has a retroactive effect on the parties.”).

I would also note that Combs would hardly be complaining if Listing 9.09 had first come into existence after she had filed her application and while her case was still pending. Cf. United States v. Real Prop, in Section 9, Town 29 North, Range 1 West Township of Charlton, 241 F.3d 796, 799-800 (6th Cir.2001) (applying to a pending case a new statute that increased the government’s burden of proof in civil forfeiture proceedings). Applying the current law, in other words, leads to consequences that are far from universally negative. In addition to the other reasons set forth above, therefore, I believe that the sound practice of generally applying current law to pending cases tips the balance in favor of the ALJ’s decision in the context of this admittedly close case.

Because I do not believe that applying the new obesity standard to Combs’s application was impermissibly retroactive, and because substantial evidence in the record supports the decision of the ALJ, I concur in the judgment reached in the lead opinion. I do not, however, agree with key aspects of the lead opinion’s analysis and would therefore enter judgment only on the strength of the reasons set forth above.

1 . We draw this comparison to show that our decision comports with our reasoning in Patel, not to attribute central significance to the question of whether or not claimants become disabled in reliance upon social security listings. In any event, it cannot be that the listing change is impermissibly retroactive because claimants base their insurance planning (as opposed to their becoming disabled) on the presumptions contained in disability listings. If so, the old listing would have to apply to disability applicants who engaged in such planning before the listing was changed. We do not understand Combs to be arguing for such deep rigidity in the listings. Instead, Combs argues for application of the old listing to claims filed, before the effective date of the new listing. Any argument that the old listing applies to claims of persons who could have based their insurance planning on the old listing would effectively preclude (at least for many, many years) any listing change that does not benefit claimants. The argument thus proves too much.

2 . It is true that courts have, in contexts quite distinct from the retroactivity inquiry at issue in this case, regarded burden of proof as "substantive.” As Altmann makes clear, a statute that has been held to be substantive in one context is not thereby made substantive for retroactivity purposes. The Court's prior holding that the Foreign Sovereign Immunities Act is substantive for purposes of jurisdiction did not mean that it was also substantive for retroactivity purposes. See Altmann, 541 U.S. at 695-96, 124 S.Ct. 2240. Thus the cases cited in the dissents regarding the substantive nature of burdens of proof for other-than-retroactivity analysis are of little relevance to a retroactivity analysis. See Raleigh v. Ill. Dep't of Revenue, 530 U.S. 15, 20-21, 120 S.Ct. 1951, 147 L.Ed.2d 13 (2000) (federal vs. state law under the Bankruptcy Act); Dick v. N.Y. Life Ins. Co., 359 U.S. 437, 446, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959) (federal vs. state law in a diversity case under Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)); Cent. Vt. Ry. Co. v. White, 238 U.S. 507, 511-12, 35 S.Ct. 865, 59 L.Ed. 1433 (1915) (federal vs. state law under Federal Employers' Liability Act); Blue Diamond Coal Co. v. United Mine Workers of Am., 436 F.2d 551, 563 (6th Cir.1970) (federal vs. state law under the Labor Management Relations Act); Allentown Mack Sales & Serv., Inc. v. N.L.R.B., 522 U.S. 359, 378, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998) (dictum regarding power of National Labor Relations Board to make policy by means of rulemaking rather than adjudication); Dir., Office of Workers' Comp. Programs, Dep’t of Labor v. Greenwich Collieries, 512 U.S. 267, 271, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994) (whether burden of proof is a "technical or formal rule of procedure” under the Longshore and Harbor Workers' Compensation Act and therefore exempt from the requirements of the Administrative Procedure Act).

There are, it might also be added, other-than-retroactivity contexts where burden of proof is deemed "procedural,” such as ordinary conflict-of-laws practice in the several states. See Restatement (Second) of Conflict of Laws §§ 133-34 (1971); see, e.g., Md. Cas. Co. v. Williams, 377 F.2d 389, 394 (5th Cir.1967); Gold Fields Am. Corp. v. Aetna Cas. & Sur. Co., 173 Misc.2d 901, 661 N.Y.S.2d 948, 949 (N.Y.Sup.Ct.1997); Abalene Pest Control Serv., Inc. v. Orkin Exterminating Co., 196 Ga.App. 463, 395 S.E.2d 867, 869 (1990); Waite v. Krug Baking Co., 20 Conn.Supp. 382, 136 A.2d347, 348 (1957).

3 . The opinion of the D.C. Circuit in National Mining Association v. Department of Labor, does not compel a different result. That case held that an administratively promulgated regulation creating a rebuttable presumption in favor of claimants seeking black lung benefits could not be applied to pending cases due to its impermissibly retroactive effect. See 292 F.3d 849, 865 (D.C.Cir.2002) (per cu-riam). The presumption operates retroactively because it "changes the outcome for cases that have already been filed in the Sixth Circuit and any other circuit that would have rejected” the presumption but for the regulation. See id. "Our holding,” the National Mining court concluded, "prevents the Secretary [of Labor] from imposing the presumption, in the form of a new regulation, on all of the other circuits for cases that were filed before the regulations were promulgated.” Id. (emphasis added).

First, the National Mining opinion applied the old presumption only to claims filed before the change, and explicitly rejected the possibility of applying the old presumption to claims filed after the effective date, id. at 861, notwithstanding any prior decisions regarding the purchase of insurance. Thus, the case cannot reasonably be read to require non-retroactivity of regulatory changes on a theory of reliance-based planning. See note 1, supra.

Second, the standard applied by the D.C. Circuit in National Mining court is not supported by either Supreme Court or Sixth Circuit precedent. The National Mining court held that "where a rule changes the law in a way that adversely affects [a party's] prospects for success on the merits of the claim, it may operate retroactively even if designated procedural by the Secretary.” Nat’l Mining, 292 F.3d at 860 (internal quotation marks omitted). The Supreme Court has never articulated such a standard, nor has this court. The change in the Foreign Sovereign Immunities Act adversely affected Austria’s prospects for success in Altmann, and the statutory change in Patel adversely affected the Patels' prospects for success. Yet neither provision was impermissibly retroactive.

Third, notwithstanding National Mining, this court in a subsequent unpublished case has already applied the black lung presumption to pending cases and acknowledged that Sixth Circuit case law inconsistent with the presumption was thereby superseded. See Glen Coal Co. v. Dir., Office of Workers’ Compensation Programs. U.S. Dep’t of Labor, 77 Fed.Appx. 878, 883-84 (6th Cir.2003). Although Glen Coal did not explicitly consider retroactivity issues, it nevertheless applied the presumption to a pending case. See id.