                                    RECOMMENDED FOR FULL-TEXT PUBLICATION
                                         Pursuant to Sixth Circuit Rule 206
                                                 File Name: 05a0114p.06

                           UNITED STATES COURT OF APPEALS
                                            FOR THE SIXTH CIRCUIT
                                              _________________


                                                         X
                                   Plaintiff-Appellant, -
 BARBARA COMBS,
                                                          -
                                                          -
                                                          -
                                                               No. 04-5275
          v.
                                                          ,
                                                           >
 COMMISSIONER OF SOCIAL SECURITY,                         -
                                  Defendant-Appellee. -
                                                         N
                         Appeal from the United States District Court
                       for the Eastern District of Kentucky at Lexington.
                      No. 03-00240—Jennifer B. Coffman, District Judge.
                                              Argued: February 2, 2005
                                        Decided and Filed: March 9, 2005
                     Before: COLE and CLAY, Circuit Judges; HOOD, District Judge.*
                                                 _________________
                                                       COUNSEL
ARGUED: Timothy N. Despotes, Richmond, Kentucky, for Appellant. Jason P. Peck, SOCIAL
SECURITY ADMINISTRATION, Atlanta, Georgia, for Appellee. ON BRIEF: Timothy N. Despotes,
Richmond, Kentucky, for Appellant. Joseph P. Palermo, III, Dennis R. Williams, Mary Ann Sloan, Douglas
Wilson, Reginald Speegle, SOCIAL SECURITY ADMINISTRATION, Atlanta, Georgia, for Appellee.
                                                 _________________
                                                     OPINION
                                                 _________________
       CLAY, Circuit Judge. Plaintiff Barbara Combs (“Combs”) appeals from the January 7, 2004
judgment of the United States District Court for the Eastern District of Kentucky, granting summary
judgment to Defendant Commissioner of Social Security (“the Commissioner”), and affirming Defendant’s
determination that Plaintiff is not entitled to disability insurance benefits. Because we hold that the
Commissioner improperly evaluated Combs’ claim under a new agency regulation promulgated while
Combs’ claim was pending, we REVERSE the district court’s judgment, VACATE the Commissioner’s
decision and REMAND Combs’ claim for further evaluation consistent with this opinion.




   *
    The Honorable Denise Page Hood, United States District Judge for the Eastern District of Michigan, sitting by designation.


                                                             1
No. 04-5275            Combs v. Commissioner of Social Security                                          Page 2


                                            BACKGROUND
       A.      Procedural History
       Combs first applied for disability insurance benefits on November 4, 1996. After an initial
administrative denial, Combs requested a hearing before an Administrative Law Judge (“ALJ”) in August
1997. That request was denied in January 1998; however, upon review, the agency’s appeals council
determined that the denial of Combs’ request for a hearing was improper. Combs had her first hearing
before an ALJ in February 1999, at which time her claim was denied due to the ALJ’s finding that Combs
was not disabled under Social Security Administration (“SSA”) regulations.
        Combs appealed the ALJ’s decision, and in March 2000 the appeals council vacated the decision
and remanded Combs’ claim for a second hearing. A second hearing was held in September 2000, with a
supplemental hearing held in August 2001. The ALJ issued his second decision on September 21, 2001,
again denying Combs’ claim on the basis that she was not disabled. Once again, Combs appealed, and once
again, the appeals council vacated the ALJ’s decision and re-remanded for a third hearing. A third hearing
was held in January 2003 before a different ALJ. In an opinion dated February 21, 2003, the ALJ agreed
with his predecessor’s decisions, finding that Combs was not entitled to disability benefits.
         Combs appealed the ALJ’s February 2003 decision to the appeals council, which declined to reverse.
The decision then became the Commissioner’s final decision in Combs’ case. Combs sought review in
district court, which affirmed the Commissioner’s decision on January 7, 2004, and Combs timely appealed
to this Court.
       B.      Substantive Facts
       Combs was born on July 25, 1953. From approximately 1980 to 1994 Combs worked as a
seamstress, and from 1994 to 1996 as a daycare worker. Combs claims that she became disabled on May
30, 1996. It is undisputed that she has not performed any substantial work since that date. This case
concerns her entitlement to benefits from her disability onset date through her last insured date, which is
December 31, 2000.
       The SSA employs a five-step sequential analysis to determine whether a benefits claimant is
disabled:
       (i) At the first step, we consider your work activity, if any. If you are doing substantial
       gainful activity, we will find that you are not disabled. (See paragraph (b) of this section.)
       (ii) At the second step, we consider the medical severity of your impairment(s). If you do not
       have a severe medically determinable physical or mental impairment that meets the duration
       requirement in § 404.1509, or a combination of impairments that is severe and meets the
       duration requirement, we will find that you are not disabled. (See paragraph (c) of this
       section.)
       (iii) At the third step, we also consider the medical severity of your impairment(s). If you
       have an impairment(s) that meets or equals one of our listings in appendix 1 of this subpart
       and meets the duration requirement, we will find that you are disabled. (See paragraph (d)
       of this section.)
       (iv) At the fourth step, we consider our assessment of your residual functional capacity and
       your past relevant work. If you can still do your past relevant work, we will find that you are
       not disabled. (See paragraph (f) of this section and § 404.1560(b).)
No. 04-5275                Combs v. Commissioner of Social Security                                                      Page 3


       (v) At the fifth and last step, we consider our assessment of your residual functional capacity
       and your age, education, and work experience to see if you can make an adjustment to other
       work. If you can make an adjustment to other work, we will find that you are not disabled.
       If you cannot make an adjustment to other work, we will find that you are disabled. (See
       paragraph (g) of this section and § 404.1560(c).)

20 C.F.R. § 404.1520 (a)(4); see Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). At each
of Combs’ hearings, the ALJs determined that she meets the requirements at step one. At step two, the first
and second ALJ decisions found that Combs suffers from several medically severe impairments, including
morbid obesity, fibromyalgia, right carpal tunnel syndrome, hypothyroidism controlled with medication,
and depression. The final ALJ decision found a slightly different set of medically severe impairments,
including morbid obesity, degenerative disc disease of the lumbosacral spine, degenerative arthritis bilateral
knees, and depression.
       At step three of the sequential analysis, both ALJs found that none of Combs’ impairments, or a
combination of her impairments, meet or equal an impairment listed at 20 C.F.R. Part 404, Subpart P,
Appendix 1. At steps four and five, both ALJs agreed that Combs’ could not return to her past jobs as a
seamstress or a daycare worker, but given her residual functional capacity (RFC), age, education and work
experience, she could perform light work and sedentary work.
        The appeals council found that both the first and second ALJ decisions failed to properly consider
the nature and severity of Combs’ impairments, or to properly assess her RFC. Additionally, the appeals
council found that the second decision assessed Combs’ credibility in a manner inconsistent with SSA
regulations. However, the appeals council was apparently satisfied that these concerns were remedied in
the third opinion, as it found that there was no basis in SSA regulations for granting review.
        Before the district court, Combs made three arguments as to why the Commissioner erred in finding
that she was not disabled. First, Combs argued that her claim should have been reviewed under the listing
for obesity, which was in effect at the time she filed her application in 1996. The obesity listing was deleted
by the SSA on October 25, 1999, and Combs argued that it was improper to retroactively apply the new
regulations to her claim. Second, Combs claimed that the Commissioner erred in adopting and
incorporating by reference the recitation of medical evidence contained in the earlier, vacated second ALJ
decision. Finally, Combs argued that the Commissioner’s assessments of her credibility and RFC were not
supported by substantial evidence. The district court rejected all three of Combs’ arguments. On appeal,
Combs disputes district court’s findings on each of these three issues.
                                                      DISCUSSION
       A.        Retroactive Application of New Obesity Regulations
        This case requires us to decide whether or not the deletion of the SSA’s regulation listing obesity
as a disabling impairment may be applied retroactively to claims that were pending when new obesity
regulations went into effect. It is undisputed that when Combs filed her claim in 1996, 1SSA regulations
listed obesity as a disability. See 20 C.F.R. Part 404, Subpart P, Appx. 1, § 9.09 (1996). Thus, a person

   1
    Former listing 9.09 provided:
   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 lumbrosacaral spine . . . associated with
   findings on medically acceptable imaging techniques of arthritis in the affected joint or lumbrosacral 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 heptomegaly,
No. 04-5275                Combs v. Commissioner of Social Security                                                      Page 4


meeting the criteria of the obesity listing would have been found disabled at step three of the sequential
analysis. 20 C.F.R. 404.1520 (a)(4)(iii). However, the SSA deleted the obesity listing on October 25, 1999,
see Revised Medical Criteria for Determination of Disability, Endocrine System and Related Criteria, 64
Fed. Reg. 46,122 (1999), and subsequently issued two rulings indicating its intent to apply the new obesity
regulations to all pending cases, see Social Security Ruling, SSR 02-01 p; Titles II and XVI: Evaluation of
Obesity, 67 Fed. Reg. 57,859 (2002), and Social Security Ruling, SSR 00-03 p; Titles II and XVI: Evaluation
of Obesity, 65 Fed. Reg. 31,039, 31,042 (2000) (superseded by SSR 02-01 p).
        Combs argues that retroactivity is disfavored, see Ryan v. Sullivan, 972 F.2d 721, 722 (6th Cir.
1992), and therefore it was improper for the Commissioner to evaluate her claim under the new regulations.
In rebuttal, the Commissioner notes that at least two prior unpublished decisions of this Court take notice
of the SSA’s new regulations regarding obesity, without calling into question the propriety of retroactive
application of the new regulations. See Wooten v. Comm’r of Soc. Sec. Admin., 23 Fed. Appx. 419, 421 (6th
Cir. 2001); Long v. Apfel, 1 Fed. Appx. 326, 333 (6th Cir. 2001); accord Elam v. Comm’r of Soc. Sec., 60
Fed. Appx. 555, 556 (6th Cir. 2003). The district court accepted the Commissioner’s argument that its
retroactive application of the new obesity regulations is permissible, deferring to Social Security Ruling 02-
01 p.
        At the outset, we note our disagreement with the district court’s deferential review of the
Commissioner’s position. “The question of whether to grant retroactive force to a newly promulgated
agency rule is a question of law for the courts, with no overriding obligation of deference to the agency
decision.” Mason Gen. Hosp. v. Sec’y of Health & Human Servs., 809 F.2d 1220, 1224 (6th Cir. 1987).
Administrative agencies generally have “no particular expertise concerning the issue of retroactivity. To
the contrary, the extent to which retroactive effect may be given a promulgation is governed by principles
of law that have been developed and refined by the courts.” Daughters of Miriam Center for the Aged v.
Mathews, 590 F.2d 1250, 1259 (3d Cir. 1978) (quoted in Mason Gen. Hosp., 809 F.2d at 1224); cf. Bowen
v. Georgetown Univ. Hosp., 488 U.S. 204, 213, 109 S. Ct. 468, 102 L. Ed. 2d 493 (1989) (“Deference to
what appears to be nothing more than an agency’s convenient litigating position would be entirely
inappropriate.”). As a pure question of law, we review both the agency’s rule and the district court’s
interpretation of the rule de novo. See, e.g., Shanklin v. Norfolk S. Ry. Co., 369 F.3d 978, 985 (6th Cir.
2004); United States v. Graham, 327 F.3d 460, 464 (6th Cir. 2003).
        Combs is correct that “[r]etroactivity is not favored by the law.” Bowen, 488 U.S. at 208, 109 S. Ct.
468. A regulation is deemed to have retroactive effect when it “would impair rights a party possessed when
he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions
already completed.” Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S. Ct. 1483, 128 L. Ed. 2d 229
(1994). Where an administrative agency purports to promulgate a rule with retroactive effect, the reviewing
court must determine whether such “power is conveyed by Congress in express terms.” Bowen, 488 U.S.
at 208, 109 S. Ct. 468. We have previously noted that “[a]gency rules typically will not apply retroactively
in the absence of an express statutory authorization of retroactive rulemaking.” Orr v. Hawk, 156 F.3d 651,
653 (6th Cir. 1998); see also Pope v. Shalala, 998 F.2d 473, 483 (7th Cir. 1993), overruled on other grounds
by Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999) (“[A] rule changing the law is retroactively applied to
events prior to its promulgation only if, at the very least, Congress expressly authorized retroactive
rulemaking and the agency clearly intended that the rule have retroactive effect.”).




   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.
No. 04-5275                 Combs v. Commissioner of Social Security                                                    Page 5


        Social Security Ruling 02-01 p plainly demonstrates that the SSA intends to retroactively apply the
deletion of the obesity listing. However, there is no indication, either in the Social Security Act or
elsewhere, that Congress has expressly conveyed retroactive rulemaking authority to the agency. Section
405(a) of the Social Security Act confers a broad, general grant of rulemaking authority on the
Commissioner, without mentioning retroactive rulemaking:
         The Commissioner of Social Security shall have full power and authority to make rules and
         regulations and to establish procedures, not inconsistent with the provisions of this
         subchapter, which are necessary or appropriate to carry out such provisions, and shall adopt
         reasonable and proper rules and regulations to regulate and provide for the nature and extent
         of the proofs and evidence and the method of taking and furnishing the same in order to
         establish the right to benefits hereunder.
42 U.S.C. § 405(a). Although Defendant has ‘full power and authority to make rules and regulations,’ the
Supreme Court in Bowen specifically cited to § 405(a) as a provision that “contain[s] no express
authorization of retroactive rulemaking.” Bowen, 488 U.S. at 213 n.3, 109 S. Ct. 468; see also Reynolds
v. Barnhart, No. Civ.A. 03-CV-2397, 2004 WL 2102008 at *4 (E.D. Pa. Aug. 26, 2004) (“The statutory
grant of authority to the Commissioner of Social Security, while broad, does not give the Social Security
Administration the express power to engage in retroactive rule-making.”); Gecevic v. Sec’y of Health &
Human Servs., 882 F. Supp. 278, 284 (E.D.N.Y. 1995) (“The Secretary does not appear to have . . . express
power [to retroactively apply new SSA regulations].”).2 Following Bowen and its progeny, we must
conclude that nothing in the Social Security Act grants the Commissioner the authority to engage in
retroactive rulemaking.
          Furthermore, the Commissioner’s deletion of obesity listing 9.09 was performed pursuant to the
notice and comment procedures established by the Administrative Procedure Act (“APA”). See 42 U.S.C.
§ 905(a)(5) (“The regulations prescribed by the Commissioner shall be subject to the rulemaking procedures
established under section 553 of Title 5.”). Section 551 of the APA defines a “rule” as “the whole or part
of an agency statement of general or particular applicability and future effect . . .” 5 U.S.C. § 551(4)
(emphasis added). Prior to Bowen, this Court noted that “an agency attempting to promulgate a rule
pursuant to APA procedures bears a heavy burden in justifying retroactivity in view of the Act’s goal of
assuring that new rules be of prospective application only.” Mason Gen. Hosp., 809 F.2d at 1225; see also
N.L.R.B. v. Long Island Coll. Hosp., 20 F.3d 76, 81 (2d Cir. 1994) (discussing the APA and retroactivity
after Bowen). After Bowen, the Commissioner must establish that Congress has conveyed express
retroactive rulemaking authority, and it is clear to us that she cannot meet that burden.
        As the Commissioner has pointed out, we have taken notice of the new obesity regulations in several
unpublished decisions; however, we have never expressly sanctioned retroactive application of the new
regulations. See, e.g., Elam, 60 Fed. Appx. at 556; Wooten, 23 Fed. Appx. at 421; Long, 1 Fed. Appx. at
333; see also Mearing v. Barnhart, 88 Fed. Appx. 148, 149 (8th Cir. 2004); Celaya v. Halter, 332 F.3d
1177, 1181 n.1 (9th Cir. 2003). Moreover, in Wooten, we specifically noted that the district court decision
below merely discussed the new obesity regulations without applying them, which “is not equivalent to a
new holding that retroactive application is appropriate.” Wooten, 23 Fed. Appx. at 421. The only circuit
court to assume that the new regulations may be applied retroactively is the Seventh Circuit, which did so
without analysis, in an unpublished opinion. Barthelemy v. Barnhart, 107 Fed. Appx. 689, 693 (7th Cir.
2004) (“The new regulations apply retroactively to all disability claims filed before the effective date.”).
By contrast, several district courts have more thoroughly analyzed the new obesity regulations in the context
of retroactivity law, and have convincingly concluded both that Social Security Ruling 02-01 p works a
retroactive effect, and that the Commissioner does not have the authority to promulgate retroactive rules.


    2
       In this case, the Commissioner has failed to point to any authority for her claim that the SSA has the authority to engage
in retroactive rulemaking.
No. 04-5275                 Combs v. Commissioner of Social Security                                                       Page 6


See 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); see also Ingram v. Barnhart,
303 F.3d 890, 894-95 (8th Cir. 2002) (concluding that the deletion of listing 9.09 should not apply
retroactively in specific plaintiff’s case, leaving open question of the Commissioner’s authority to engage
in retroactive rulemaking); Campbell v. Barnhart, 178 F. Supp. 2d 123, 133 (D. Conn. 2001) (noting
possible disfavor with Commissioner’s position on retroactivity of new obesity regulation, but failing to
resolve issue because remand necessary on other grounds).
        When faced with the claim that a regulation has a retroactive effect, we “must ask whether the new
provision attaches new legal consequences to events completed before its enactment.” Landgraf, 511 U.S.
at 269-70, 114 S. Ct. 1483. In this case, the application of the new obesity rules to someone like Combs has
a retroactive effect and substantively alters her rights, “because the revised regulation would raise the bar
on proof of disability based on obesity.” Kokal, 163 F. Supp. 2d at 1131; accord Portlock, 208 F. Supp. 2d
at 461 (finding that if new obesity regulations were applied retroactively to pending claims, “the rights of
[plaintiff] and those similarly situated to her would be substantially altered” due to the more onerous burden
of proof). Whereas a finding when Combs filed her claim that listing 9.09 applied would have automatically
entitled her to a presumption of disability, application the new regulations now requires her to “show the
extent to which her obesity affects each step of the sequential evaluation process.” Kokal, 163 F. Supp. 2d
at 1131. Thus, the deletion of listing 9.09 “clearly alters the standard for evaluating disability claims.”
Cherry, 327 F. Supp. 2d at 1359. Combs filed her disability insurance benefits claim in November 1996,
nearly three years before the deletion of listing 9.09. Prior to October 25, 1999, the Commissioner concedes
that Combs was first erroneously denied a hearing, and then given a hearing by an ALJ whose decision was
subsequently vacated by the appeals council. Had Combs’ case been properly handled and evaluated3
between November 1996 and October 1999, it is very possible that she would have obtained benefits.
Holding her to a higher burden of proof now clearly works a retroactive effect, as it “impair[s] rights
[Combs] possessed when [s]he acted . . . and impose[s] new duties with respect to transactions already
completed.” Landgraf, 511 U.S. at 280, 114 S. Ct. 1483.
       Given the complete lack of express congressional intent to provide the Commissioner with the power
to engage in retroactive rulemaking, as well as the retroactive effect of Social Security Ruling 02-01 p, we
conclude that individuals like Combs, who submitted their applications for disability benefits prior to4
October 25, 1999, must be given the benefit of the obesity rules in effect at the time their claims were filed.
         B.       The Commissioner’s Decision Below
       Because we conclude that Combs’ claim should have been evaluated under listing 9.09, and therefore
must be remanded, it is unnecessary for us to evaluate whether the Commissioner’s decision rendered under
the new obesity regulations is supported by substantial evidence.




    3
      Whether Combs qualifies for benefits under deleted listing 9.09 is an inquiry for the agency on remand; however, we note
that we are compelled to remand the case in part because the undisputed evidence in the record demonstrates at least the possibility
that Combs may be disabled under the old obesity rules. Combs is somewhere between 68 and 70 inches tall, and weighs in
excess of 350 pounds, clearly meeting the weight requirements of listing 9.09. See 20 C.F.R. Pt. 404, Subpt. P., Appx. 1, § 9.09,
Table II (1997). Additionally, the Commissioner found below that Combs suffers from degenerative spinal and knee problems,
and other evidence in the record indicates that she suffers from fibromyalgia and carpal tunnel syndrome, any of which may meet
the additional requirements set forth in subsection A of listing 9.09. See note 1, supra.
    4
      We note that our decision today does not call into question the Commissioner’s authority to delete listing 9.09, or to apply
the new regulations to claims filed after October 25, 1999. Under 42 U.S.C. § 405(a), the Commissioner clearly has the power
to promulgate new rules of prospective effect.
No. 04-5275           Combs v. Commissioner of Social Security                                 Page 7


                                          CONCLUSION
        For the reasons set forth above, we REVERSE the district court’s judgment, VACATE the
Commissioner’s decision and REMAND Plaintiff’s disability claim for further evaluation consistent with
this opinion.
