# Barbara Combs v. Commissioner of Social Security

> Court of Appeals for the Sixth Circuit · August 16, 2006 · 459 F.3d 640

URL: https://www.frixlaw.com/law-library/cases/9499143

## Case

- **Full name:** Barbara COMBS, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** August 16, 2006
- **Citations:** 459 F.3d 640; 2006 U.S. App. LEXIS 20919; 2006 WL 2355590
- **Precedential status:** Published
- **Opinion:** Dissent by Clay
- **Judges:** Boggs, Martin, Batchelder, Daughtrey, Moore, Cole, Clay, Gilman, Gibbons, Rogers, Sutton, Cook, McKeague, Griffin, Neilson
- **Cited by:** 598 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9499143

## How later opinions describe it (automated extraction)

- stating that “this 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”
- finding “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” “not impermissibly retroactive”
- holding that an ALJ may reject the opinion of a treating physician if the treating physician’s opinion is divorced from supporting objective evidence

## Opinion text

CLAY, Circuit Judge,
with whom MARTIN, DAUGHTREY, MOORE, and COLE, Circuit Judges, join, dissenting.
In finding that the application of newly promulgated obesity rules did not have an impermissible retroactive effect on Plaintiff with respect to her pending application for Social Security disability benefits, the lead opinion seriously misapprehends and oversimplifies the Supreme Court’s retro-activity jurisprudence. At its core, the lead opinion asserts two positions: (1) the shift from Listing 9.09 to the new obesity rules was merely a procedural change that did not have an impermissible retroactive effect; and (2) Plaintiff did not rely on Listing 9.09 in becoming disabled. These positions are incorrect and irrelevant, re *662 spectively. I therefore respectfully dissent.
I.
Plaintiff is a former seamstress and daycare employee. Plaintiff claims that as of May 30, 1996, she was disabled due to morbid obesity, fibromyalgia, degenerative disc disease of the lumbosacral spine, degenerative arthritis bilateral knees, and other severe physical ailments, as well as depression. Plaintiff filed an application for disability benefits on November 4, 1996. After an initial denial of her application, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). On January 26, 1998, the ALJ denied the request. On October 23, 1998, the appeals council vacated the decision of the ALJ and granted Plaintiff a hearing. In February 1999, over two years after Plaintiffs initial application, the ALJ held a hearing and then subsequently denied Plaintiffs application.
The appeals council vacated the decision of the ALJ and remanded Plaintiffs case on the ground that the ALJ failed to properly analyze Plaintiffs impairments. On September 21, 2001, on remand, the ALJ again denied Plaintiffs application. The appeals council again vacated the decision of the ALJ and remanded Plaintiffs case on the grounds that the ALJ failed to properly analyze Plaintiffs impairments and the ALJ incorrectly analyzed Plaintiffs credibility. The case was remanded to another ALJ, who in February 2003 denied Plaintiffs application as well. The appeals council declined to reverse this decision.
When Plaintiff filed her application for disability benefits in 1996, Listing 9.09 was in effect. That listing stated that an applicant who met a certain weight/height combination so as to demonstrate morbid obesity and who also suffered from an additional, specific impairment would be presumed to be disabled and would be entitled to disability benefits. 1 Listing 9.09 was still in effect in February 1999, when the ALJ erroneously analyzed Plaintiffs impairments and denied Plaintiffs application. From the record, it is clear that Plaintiff had a strong case for presumptive disability under Listing 9.09. At the first hearing, had the ALJ correctly analyzed Plaintiffs impairments, he most likely would have found Plaintiff to be disabled. The Social Security Administration (“SSA”) deleted Listing 9.09 on August 24, 1999, almost three years after Plaintiff applied for disability benefits. The final, binding decision of the ALJ did not occur until February 2003, so that Plaintiff could not employ Listing 9.09 to establish her disability.
II.
The lead opinion expends a scant amount of ink in explaining the nuances of *663 Supreme Court cases pertaining to retro-activity. This lack of exposition is somewhat surprising, when one considers that the Supreme Court has stated that retro-activity analysis does not lend itself to easy application. See Landgraf v. USI Film Prods., 511 U.S. 244, 270 , 114 S.Ct. 1483 (1994) (“Any test of retroactivity will leave room for disagreement in hard cases, and is unlikely to classify the enormous variety of legal changes with perfect philosophical clarity.”). Further clarification of certain cases is in order and will assist in illuminating the deficiencies in the lead opinion.
The Supreme Court’s current position on retroactivity is best described in Landgraf v. USI Film Products. In that case, the plaintiff was employed by the defendant from 1984 to 1986. Id. at 247-48 . A fellow employee harassed the plaintiff with inappropriate remarks and physical contact. Id. at 248 . The plaintiff complained to the defendant’s management, and management conducted an investigation, reprimanded the harassing employee, and transferred that employee to another department. Id. Four days later, the plaintiff quit. Id. The plaintiff filed a charge against the defendant with the Equal Employment Opportunity Commission (“EEOC”), but the EEOC dismissed the charge because it found that while the plaintiff had suffered from a hostile work environment, the defendant had adequately remedied the situation. Id. The plaintiff then filed suit in federal district court. Id. In a bench trial, the court dismissed the plaintiffs complaint; it found that while the plaintiff had suffered from a hostile work environment, she was not constructively discharged by the defendant. Id. The plaintiff appealed.
On November 21, 1991, while the plaintiffs appeal was pending, the President signed into law the Civil Rights Act of 1991. Id. at 249 , 114 S.Ct. 1483 . Prior to this legislation, the Civil Rights Act of 1964 only provided for equitable remedies, such as backpay, in cases of discrimination. Id. at 252 . Under the Civil Rights Act of 1991, however, a person who has suffered from discrimination could also recover compensatory and punitive damages. Id. Moreover, a person seeking compensatory and punitive damages is entitled to a jury trial. Id.
The plaintiff argued before the court of appeals that the court should remand her case to the district court for a jury trial on the issues of compensatory and punitive damages pursuant to the Civil Rights Act of 1991. Id. at 249 , 114 S.Ct. 1483 . The court rejected this argument, reasoning that the Civil Rights Act of 1991 could not be retroactively applied to the defendant, inasmuch as such application would be unjust because it would increase the defendant’s liability for conduct that occurred before the enactment of the Civil Rights Act of 1991. Id. at 249 .
The Supreme Court affirmed. The Court found that the Civil Rights Act of 1991 expanded the potential forms of relief available to a person who has suffered discrimination. Id. at 252-54 . In addition, the newly enacted legislation increased the scope of actionable conduct; before the 1991 Act, the “plaintiff could not recover monetary relief unless the discrimination was also found to have some concrete effect on the plaintiffs employment status, such as a denied promotion, a differential in compensation, or termination.” Id. at 254 . Under the 1991 Act, however, a plaintiff could recover “in circumstances in which there has been unlawful discrimination in the terms, conditions, or privileges of employment, ... even though the discrimination did not involve a discharge or a loss of pay.” Id. (internal quotation marks and citation omitted).
*664 The first question the Court addressed was “whether the statutory text on which [the plaintiff] relies manifests an intent that the 1991 Act should be applied to cases that arose and went to trial before its enactment.” Id. at 257 . The Court answered in the negative, finding that the text of the statute was ambiguous as to a congressional intent of retroactive application of the 1991 Act. The Court reasoned, “It is entirely possible-indeed, highly probable-that because it was unable to resolve the retroactivity issue ..., Congress viewed the matter as an open issue to be resolved by the courts.” Id. at 261 , 114 S.Ct. 1483 .
Next, the Court addressed whether, despite the lack of clear congressional intent, the 1991 Act could be retroactively applied to the defendant. The Court found that there was a long-established presumption against retroactive legislation: “Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted.” Id. at 265 , 114 S.Ct. 1483 . On the other hand, “[r]etroactivity provisions often serve entirely benign and legitimate purposes, whether to respond to emergencies, to correct mistakes, to prevent circumvention of a new statute in the interval immediately preceding its passage, or simply to give comprehensive effect to a new law Congress considers salutary.” Id. at 267-68 , 114 S.Ct. 1483 . The Court warned that “deciding when a statute operates ‘retroactively’ is not always a simple or mechanical task.” Id. at 268 , 114 S.Ct. 1483 . More specifically:
A statute does not apply “retrospectively” merely because it is applied in a case arising from conduct antedating the statute’s enactment ..., or upsets expectations based in prior law. Rather, the court must ask whether the new provision 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. Any test of retroactivity will leave room for disagreement in hard cases, and is unlikely to classify the enormous variety of legal changes with perfect philosophical clarity. However, retroactivity is a matter on which judges have “sound ... instinctfs],” ... and familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance.
Id. at 269-70 , 114 S.Ct. 1483 (alteration in the original) (internal citations omitted).
Despite the presumption against retro-activity, the Court “recognized that, in many situations, a court should ‘apply the law in effect at the time it renders its decision,’ ... even though that law was enacted after the events that gave rise to the suit.” Id. at 273 , 114 S.Ct. 1483 (internal citation omitted). For example, “[w]hen the intervening statute authorizes or affects the propriety of prospective relief, application of the new provision is not retroactive.” Id. In another example, the Court stated, “We have regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed.” Id. at 274 , 114 S.Ct. 1483 .
Importantly for Plaintiffs case, the Court also reasoned that
[c]hanges in procedural rules may often be applied in suits arising before their enactment without raising concerns about retroactivity.... We [have] noted *665 the diminished reliance interests in the matter of procedure.... Because rules of procedure regulate secondary rather than primary conduct, the fact that a new procedural rule was instituted after the conduct giving rise to the suit does not make application of the rule at trial retroactive.
Id. at 275 , 114 S.Ct. 1483 (internal citations omitted). The Court warned, however, that “[o]f course, the mere fact that a new rule is procedural does not mean that it applies to every pending case.... Our orders approving amendments to federal procedural rules reflect the commonsense notion that the applicability of such provisions ordinarily depends on the posture of the particular case.” Id. at 275 n. 29, 114 S.Ct. 1483 .
The Court offered these final words of guidance:
When a case implicates a federal statute enacted after the events in suit, the court’s first task is to determine whether Congress has expressly prescribed the statute’s proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether 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. If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.
Id. at 280 , 114 S.Ct. 1483 . Armed with these principles, the Court found that application of the 1991 Act would have an impermissible retroactive effect on the conduct of the defendant. Specifically, the Court found that retroactive application of punitive damages would raise serious constitutional concerns with respect to the Ex Post Facto Clause. Id. at 281 , 114 S.Ct. 1483 . With respect to compensatory damages, the Court found that “[t]he introduction of a right to compensatory damages is also the type of legal change that would have an impact on private parties’ planning. ... [I]f applied here, [compensatory damages] would attach an important new legal burden to that conduct.” Id. at 282-83 , 114 S.Ct. 1483 . The Court also found that because the 1991 Act increased the scope of actionable conduct, it created a new cause of action that could not be retroactively applied to the defendant. Id. at 283 , 114 S.Ct. 1483 .
In Martin v. Hadix, 527 U.S. 343 , 119 S.Ct. 1998 , 144 L.Ed.2d 347 (1999), the Supreme Court held that a provision of the Prison Litigation Reform Act of 1995 (“PLRA”) that limited attorney’s fees could not be applied to legal work performed before the PLRA’s enactment. Prior to the PLRA, attorneys who worked on behalf of the prisoners in two specific federal cases that addressed prison conditions were entitled to the prevailing market rate, which was $150 per hour at the time the work was performed. Id. at 348 , 119 S.Ct. 1998 . Pursuant to the PLRA, however, the rate for prisoner legal work was set with respect to the rate of court-appointed attorneys. Id. at 350 , 119 S.Ct. 1998 . As a result, attorneys who worked on behalf of the prisoners were only entitled to $112.50 per hour. Id. The issue was whether the PLRA limitation could apply to legal work performed before the enactment of the PLRA but where the fee request was filed after the enactment of the PLRA. Id. at 351-53 , 119 S.Ct. 1998 .
The Supreme Court answered in the negative. Under the first step of Land-graf, the Court found that Congress had *666 not expressed a clear intent that the PLRA apply to legal work performed prior to the enactment of the PLRA. Id. at 357 , 119 S.Ct. 1998 . Under the second step of Landgraf , the Court found that application of the PLRA to pre-PLRA legal work would result in an impermissible retroactive effect. The Court reasoned that the attorneys in the case
had a reasonable expectation that work they performed prior to enactment of the PLRA ... would be compensated at the pre-PLRA rates .... [C]ounsel performed a specific task ... and they were told that they would be compensated at a rate of $150 per hour. Thus, when the lawyers ... provided these ... services before the enactment of the PLRA, they worked in reasonable reliance on this fee schedule. The PLRA, as applied to work performed before its effective date, would alter the fee arrangement post hoc by reducing the rate of compensation. To give effect to the PLRA’s fees limitations, after the fact, would “at-tac[h] new legal consequences” to completed conduct.
Id. at 358 , 119 S.Ct. 1998 (second alteration in the original) (citation omitted).
The Court rejected the respondent’s argument that the fee provision of the PLRA was collateral to the main cause of action and therefore was not impermissibly retroactive under Landgraf. Id. at 358-59 , 119 S.Ct. 1998 . The Court admitted that in Landgraf , the Court stated that the question of attorney’s fees did not “change the substantive obligations of the parties because they are collateral to the main cause of action.” Id. at 359 , 119 S.Ct. 1998 (internal quotation marks and citation omitted). The Court, however, warned about generalizations in the retroactivity analysis:
While it may be possible to generalize about types of rules that ordinarily will not raise retroactivity concerns, ... these generalizations do not end the inquiry. For example, in Landgraf , we acknowledged that procedural rules may often be applied to pending suits with no retroactivity problems, ... but we also cautioned that “the mere fact that a new rule is procedural does not mean that it applies to every pending case .... We took pains to dispel the “sugges[tion] that concerns about retroactivity have no application to procedural rules.” ... When determining whether a new statute operates retroactively, it is not enough to attach a label (e.g., “procedural,” “collateral”) to the statute; we must ask whether the statute operates retroactively.
Id. (alteration in the original) (internal citations omitted). The Court found that though the attorney fees were “collateral,” that label did not preclude a retroactivity analysis. Id.
In Republic of Austria v. Altmann, the Supreme Court held that the Foreign Sovereign Immunities Act of 1976 (“FSIA”) applied to claims based on conduct that occurred prior to the FSIA’s enactment. 541 U.S. 677, 700 , 124 S.Ct. 2240 , 159 L.Ed.2d 1 (2004). The FSIA was a codification of sovereign immunity principles and exempted foreign nations from the jurisdiction of state and federal courts, except in certain specific circumstances. Id. at 681 , 124 S.Ct. 2240 . One of these exceptions was when property was taken in violation of international law. Id. The plaintiff in that case sued the Republic of Austria and the Austrian Gallery in federal court, alleging that the gallery obtained possession of valuable paintings belonging to her uncle through wrongful conduct that occurred during World War II and the years directly afterward. Id. at 680-81 , 124 S.Ct. 2240 . The plaintiff claimed that she was the rightful owner of these paint *667 ings according to her uncle’s will. Id. at 680 , 124 S.Ct. 2240 . The defendants claimed that, at the time when the wrongful conduct occurred, they would have been absolutely immune to suit in federal court. Id. at 686 , 124 S.Ct. 2240 . They claimed that application of the FSIA to allow jurisdiction over the case would have an impermissible retroactive effect. Id.
The Supreme Court disagreed and held that the district court had jurisdiction to hear the case. The Court first noted that while there was language in the FSIA suggesting that Congress intended the FSIA to apply to preenactment conduct, that language was not so clear so as to be an “expres[s] prescription of] the statute’s proper reach.” Id. at 694 , 124 S.Ct. 2240 (alterations in the original) (quotation marks omitted). The Court then proceeded to determine whether the statute had an impermissible retroactive effect. The Court found that the FSIA defied categorization as either a substantive or procedural provision. Id. at 694 , 124 S.Ct. 2240 . The Court, however, ruled that the presumption against retroactivity did not apply to changes in sovereign immunity, inasmuch as the purpose of sovereign immunity was not so that foreign nations could shape their conduct around such immunity. Id. at 696 , 124 S.Ct. 2240 . Instead, sovereign immunity was a “gesture of comity” based on “current political realities and relationships.” Id. In other words, the underlying rationale for the presumption against retroactivity did not exist in the sovereign immunity context. In bolstering its decision, the Court found that the language of the statute and its structure, while not clear enough to be considered an express command from Congress, strongly suggested that Congress intended the FSIA to reach claims based upon preenactment conduct. Id. at 697-99 , 124 S.Ct. 2240 .
III.
The lead opinion asserts that the deletion of Listing 9.09 and the subsequent implementation of new obesity rules constituted procedural, as opposed to substantive, changes, so that Plaintiff did not suffer from an impermissible retroactive effect. Nothing could be further from the truth. As Judge Griffin explains in his separate opinion, and as Judge Gilman agrees in his separate opinion, burdens of proof are substantive, not procedural, law. See, e.g., Raleigh v. Illinois Dep’t of Revenue, 530 U.S. 15, 20-21 , 120 S.Ct. 1951 , 147 L.Ed.2d 13 (2000) (“Given its importance to the outcome of cases, we have long held the burden of proof to be a ‘substantive’ aspect of a claim.” (emphasis supplied)); Dir., Office of Workers’ Comp. Programs v. Greenwich Collieries, 512 U.S. 267, 271 , 114 S.Ct. 2251 , 129 L.Ed.2d 221 (1994) (“But the assignment of the burden of proof is a rule of substantive law .... ”); Dick v. Neiv York Life Ins. Co., 359 U.S. 437, 446 , 79 S.Ct. 921 , 3 L.Ed.2d 935 (1959) (“[Presumptions (and their effects) and burden of proof are ‘substantive’ .... ”). In the same vein, presumptions, such as that found in Listing 9.09, are substantive law. See id; see also Allentown Mack Sales and Serv., Inc. v. N.L.R.B., 522 U.S. 359, 378 , 118 S.Ct. 818 , 139 L.Ed.2d 797 (1998) (explaining that evidentiary presumptions are “substantive rules of law”). No matter what label the lead opinion attaches, the shift from Listing 9.09 to the new obesity rules was a substantive change in the law, so that application of the new rules had an impermissible retroactive effect on Plaintiff. 2
*668 Moreover, even without the preceding case law on the substantive nature of burdens of proof and presumptions, the lead opinion’s assertion that the change in the SSA’s obesity rules was procedural would still be improper. The Supreme Court has repeatedly warned against mechanically labeling a change in law as procedural and therefore not subject to the presumption against retroactivity. See Martin, 527 U.S. at 359 , 119 S.Ct. 1998 (“When determining whether a new statute operates retroactively, it is not enough to attach a label (e.g., ‘procedural,’ ‘collateral’) to the statute; we must ask whether the statute operates retroactively.”); Landgraf, 511 U.S. at 275 n. 29, 114 S.Ct. 1483 . The question then becomes what the proper inquiry should be to determine whether a change in law has an impermissible retroactive effect, without relying on the judicial shortcuts of calling the change “procedural” or “substantive.”
The analysis of the D.C. Circuit is persuasive in this regard. In National Mining Association v. Department of Labor, the court addressed new rules promulgated by the Department of Health and Human Services (“DHHS”) pursuant to the Black Lung Benefits Act (“BLBA”), legislation designed to provide disability benefits to coal miners. 292 F.3d 849 , 854-856 (D.C.Cir.2002). The bulk of these new rules provided procedures that made it easier for coal miners to assert a claim of disability. Id. at 855. The DHHS argued that the new rules were only procedural and did not affect substantive rights. The court responded:
Rather than rely on “procedural” and “substantive” labels, a court must ask whether the [regulation] operates retroactively. ... This inquiry involves a eom-monsense, functional judgment about whether the new provision attaches new legal consequences to events completed before its enactment. Thus, 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.
Id. at 859-60 (alterations in the original) (internal quotation marks and citations omitted). A specific example of a seemingly procedural change that the court struck down as impermissibly retroactive was 20 C.F.R. § 725.701 . The regulation created
a rebuttable presumption that when a miner who is eligible for black lung benefits receives medical treatment for a pulmonary disorder, the disorder is “caused or aggravated by the miner’s pneumoconiosis.” 20 C.F.R. § 725.701 (e). The employer may rebut the presumption with “credible evidence that the medical service or supply provided was for a pulmonary disorder apart from those previously associated with the miner’s disability” or was beyond the treatment necessary to treat the covered disorder, or “was not for a pulmonary disorder at all.” Id.
*669 Id. at 865 . Before this new regulation, a miner was required to affirmatively prove that his pulmonary disorder was caused or aggravated by his pneumoconiosis in order to qualify'for benefits in the form of payment of the medical expenses in connection with the pulmonary disorder. With the new regulation, the DHHS presumed that the pulmonary disorder was caused or aggravated by the miner’s pneumoconiosis and the miner was therefore eligible for benefits. Thus, the miner’s employer was more likely to lose a claim under the new regulation where the miner asserted a pulmonary disease. This was the precise situation “where a rule changes the law in a way that adversely affects [a party’s] prospects for success on the merits of the claim,” id. at 860 (internal quotation marks and citation omitted), so that the court found that the new regulation was retroactive and could not be applied to pending cases, id. at 865 .
The instant case presents almost identical circumstances, except that the burden shift was in the opposite direction. Under Listing 9.09, if Plaintiff met certain criteria, there was an irrebuttable presumption that Plaintiff was disabled and thus entitled to benefits. Under the new obesity rules, Plaintiff must actually prove disability at Step Three, Four, or Five of the SSA’s process in order to qualify for benefits. In Kokal v. Massanari, a district court viewed the deletion of Listing 9.09 in this manner: “Here, Plaintiffs rights would be substantively altered if the [change in obesity rules] was deemed applicable to pending claims, because the revised regulation would raise the bar on proof of disability based on obesity.” 163 F.Supp.2d 1122, 1131 (N.D.Cal.2001). As the facts of this case so aptly demonstrate, the new obesity rules adversely affected Plaintiffs prospects for success on the merits. These new rules thus had an impermissible retroactive effect and should not have been applied to Plaintiffs pending application for disability benefits.
Judge Gilman’s position that National Mining Association is directly on point and persuasive therefore clashes and is irreconcilable with his conclusion that the deletion of Listing 9.09 and the application of the new obesity rules to Plaintiff was not impermissibly retroactive. Under National Mining Association, the inquiry is whether “a rule changes the law in a way that adversely affects [a party’s] prospects for success on the merits of the claim.” Nat’l Mining Assoc., 292 F.3d at 860 (alteration in the original) (internal quotation marks and citation omitted). This inquiry answers whether the change in law is im-permissibly retroactive, not whether the change in law is substantive or procedural. Id. at 859-60. In this case, it is without question that the change in law, from Listing 9.09 to the new obesity rules, adversely affected Plaintiffs prospects for success on the merits of her disability claim. The “persuasive and apposite” analysis of National Mining Association invariably leads to the conclusion that the application of the new obesity rules to Plaintiffs disability claim had an impermissible retroactive effect. 3 Concurring Op., Judge Gilman, at 653.
*670 The D.C. Circuit’s analysis comports with the Supreme Court’s guidance in Landgraf . The Supreme Court called on the lower courts to utilize “familiar considerations of fair notice, reasonable reliance, and settled expectations” in a retroactivity analysis. Landgraf 511 U.S. at 270 , 114 S.Ct. 1483 . When application of new law would adversely affect a party’s prospects for success on the merits, as it did in this case, these “familiar considerations” counsel against retroactive application of the new law. This remains true even if the new law is superficially labeled as “procedural.” 4
The lead opinion’s repeated reliance on Altmann, in deeming that the change in the SSA’s obesity rules is procedural, is puzzling. Altmann was not a case whose decision hinged upon the Supreme Court’s determination that the relevant change in law was procedural; indeed, the Supreme Court specifically rejected that argument:
Under Landgraf , ... it is appropriate to ask whether the Act affects substantive rights (and thus would be impermissibly retroactive if applied to preenactment conduct) or addresses only matters of procedure (and thus may be applied to all pending cases regardless of when the underlying conduct occurred). But the FSIA defies such categorization.
541 U.S. at 694 , 124 S.Ct. 2240 (emphasis supplied). The Court’s decision did not rely on the procedural-substantive line in its analysis. Instead, the basis of the decision was that the FSIA defined the boundaries of sovereign immunity, a principle where the presumption against retroactivity was inapplicable in that sui generis context. Id. at 696 , 124 S.Ct. 2240 . Alt-mann simply cannot be read to support the notion that the shift in obesity rules was merely procedural.
The lead opinion’s misapprehension of Altmann is readily apparent when it cites to that case to support the proposition that “a statute that has been held to be substantive in one context is not thereby made substantive for retroactivity purposes.” Lead Op. at 648 n.2. There is absolutely no language in Altmann that says such a thing. As stated above, Altmann explicitly states that the FSIA defied categorization as either substantive or procedural law. 541 U.S. at 694 , 124 S.Ct. 2240 . The pages to which the lead opinion cites continue and state that, even though the FSIA was not clearly substantive or procedural, the general presumption against retroac-tivity did not apply to sovereign immunity, as sovereign immunity reflected “current political realities and relationships,” as opposed to a set of laws on which the foreign countries relied “to shape their conduct.” Id. at 695-96 , 124 S.Ct. 2240 . The Supreme Court did not hold that the FSIA *671 was “substantive in one context,” Lead Op. at 648 n.2, and the Supreme Court most certainly did not hold that substantive law in one context may not be substantive law in the retroactivity context, so that the application of the FSIA would not have an impermissible retroactive effect on the defendants in that case. There is no support for the lead opinion’s assertion that substantive law may, through some form of judicial alchemy, become some other type of law for purposes of retroactivity analysis.
The lead opinion also states that the “relevant activity” here is adjudicatory conduct, so that the deletion of Listing 9.09 and the application of the new rules did not have a retroactive effect:
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.
Lead Op. at 649. As an initial note, this is a none-too-subtle repackaging of the lead opinion’s previous argument labeling the deletion of Listing 9.09 and the promulgation of new rules as a procedural change. The phrase “adjudicatory conduct” is simply another way to describe procedure in the litigation process. This is especially apparent in the lead opinion’s use of the phrase “evaluation and presentation of proof’ and the lead opinion’s characterization of Listing 9.09 as a “rule of adjudication”; the lead opinion is reasserting its position that changes in procedure do not give rise to an impermissible retroactive effect. Obviously, a change in the burden of proof or in a presumption addresses the adjudication of a claim; however, this does not necessarily mean that such a change does not have an impermissible retroactive effect. For the reasons set forth in addressing the lead opinion’s procedural-substantive analysis, this argument fails. Moreover, taken to its logical endpoint, the lead opinion’s inquiry is contrary to Supreme Court precedent. For example, in Landgraf , the statute at issue was the Civil Rights Act of 1991, which stated that a plaintiff that brought suit on a discrimination claim could seek compensatory and punitive damages. 511 U.S. at 247 , 114 S.Ct. 1483 . One could quite plausibly describe the statute as addressing adjudicatory conduct, as it describes what types of damages a plaintiff may seek when she brings a claim. According to the lead opinion’s logic, the fact that the Civil Rights Act of 1991 addressed adjudicatory conduct would lead to the inescapable conclusion that the statute could be applied to pending cases, a result that is at odds with the decision in Landgraff. Likewise, the lead opinion would find no impermissible retroactive effect in applying to pending cases the challenged provisions in National Mining Association; those provisions too dealt with adjudicatory conduct in that they changed certain presumptions and burdens of the parties when a Black Lung Benefits claim was raised. The point is simple: labeling an action as “adjudicatory conduct” is as helpful as labeling an action as “procedural,” which is to say that it is of no help at all. By resting its decision on these labels, the lead opinion ignores the true retroactive harm that has befallen Plaintiff in the application of the new regulations to her disability application.
IV.
Because the deletion of Listing 9.09 was a substantive change, our analysis should *672 be concluded; the SSA’s application of the new rules to Plaintiffs disability claim had an impermissible retroactive effect. I would therefore remand the case to the SSA to review Plaintiffs application under Listing 9.09. 5 I write further only to address a peculiar argument raised by the lead opinion-that Plaintiff did not rely on Listing 9.09 in becoming disabled, so that the deletion of Listing 9.09 did not work an impermissible retroactive effect.
At the risk of stating the obvious, most if not all of this country’s disabled did not rely on SSA rules and regulations or even disability benefits in becoming disabled. Inherent in this point is that a person generally does not choose to become disabled; a disability is ordinarily the product of circumstances beyond the control of the person whom it afflicts. But the absence of reliance on law in becoming disabled is not dispositive in determining whether a change in that law has an impermissible retroactive effect. Under the lead opinion’s analysis, the SSA could theoretically withdraw the availability of disability benefits from all pending applicants and still pass muster under Landgraf , as none of these applicants relied on SSA rules or regulations or disability benefits in becoming disabled. 6 In fact, under the lead opinion’s interpretation of Landgraf , the SSA could even withdraw disability benefits from actual recipients who previously qualified for such benefits, as the recipients also did not rely on SSA rules or regulations or disability benefits in becoming disabled, nor could the recipients claim reliance on disability benefits in ceasing work, as such recipients claimed that it was them disabilities that prevented them from working. 7 The lead opinion’s logic, that because Plaintiff did not rely on SSA rules or regulations in becoming disabled, the application of new rules does not work an impermissible retroactive effect, strikes with too broad a stroke; such an inelegant *673 approach would find no retroactive harm in even the most blatant of cases.
It is plain that Plaintiff did not rely on SSA rules and regulations in becoming disabled. This fact, however, is irrelevant as to whether the application of the new rules would work an impermissible retroactive effect. The facts in Landgraf illustrate this point: one could not say that the defendant employer somehow relied on the Civil Rights Act of 1964 and permitted a hostile work environment so that application of the Civil Rights Act of 1991 would have a retroactive effect. It would be facetious to argue that an employer allows a hostile work environment in reliance on the limited remedies provided by the Civil Rights Act of 1964, just as it would be facetious to argue that a person becomes disabled in reliance on the rules and regulations available to establish a disability claim. Yet the Supreme Court still found an impermissible retroactive effect in Landgraf . The question then becomes what exactly was the underlying act in Landgraf that the Supreme Court held to be protected from retroactive application of new law.
The Supreme Court found that the underlying act of the employer in Landgraf was its planning on how to address a hostile work environment claim: “The introduction of a right to compensatory damages is also the type of legal change that would have an impact on private parties’ planning.” 511 U.S. at 282 , 114 S.Ct. 1483 . Specifically, the Court stated that “[t]he new damages provisions ... can be expected to give managers an added incentive to ward off discriminatory conduct by subordinates before it occurs.” Id. at 282 n. 35, 114 S.Ct. 1483 . Under the Civil Rights Act of 1964, the employer was liable only for equitable remedies; as a result, it planned accordingly by allocating expenditures, effort, and policies commensurate with the possible liability. Under the Civil Rights Act of 1991, the employer was subject to a much broader range of remedies, so that it would have planned a much greater allocation of resources to remedy the problem of a hostile work environment. Thus, the Supreme Court found that application of the Civil Rights Act of 1991 to the employer would have had a retroactive effect, as the employer had planned its discrimination policies based on the Civil Rights Act of 1964.
Plaintiffs case presents a similar issue of planning based on the SSA’s eligibility requirements for disability benefits. The difficulty of proving eligibility for benefits is certainly a factor considered by an individual in disability planning. For example, suppose that qualifying for Social Security disability benefits is extremely difficult; only 1% of applicants eventually receive benefits, and this is only after a torturous eligibility review process. An individual might look at the difficulty in proving eligibility and plan accordingly, by purchasing a third party disability insurance policy with less exacting requirements, by increasing her level of savings in case of disability in the future, and other such measures. Likewise, if qualifying for Social Security disability benefits were extremely easy, an individual might have a very different portfolio mix in her planning, as she would not invest heavily in instruments that hedge the risk of disability. Thus, in this case, Plaintiff did not become disabled in reliance on the disability benefits scheme available at the time; but rather, she planned for the possibility of becoming disabled in reliance on the disability benefits scheme available at the time. Had Plaintiff known that the SSA’s requirements for eligibility would have changed so dramatically, she might have been inclined to alter her planning. This is especially true with respect to Plaintiffs situation, where her application for disabil *674 ity benefits was pending for a number of years. This is the reason why application of the new obesity rules would have a retroactive effect on Plaintiffs planning under Listing 9.09.
The lead opinion appears to believe that a reliance theory based on disability planning “proves too much,” as such a theory would “for many, many years” preclude application of newly enacted legislation to those who planned in accordance with the old scheme. Lead Op. at 647 n.l. This is incorrect and contrary to Supreme Court precedent. A simple example will illustrate this point: the Supreme Court did not hold in Landgraf that because the defendant employer, before 1991, relied on the Civil Rights Act of 1964 in planning how to address a hostile work environment, an employee could never raise (or, for many, many years could not raise) a claim under the Civil Rights Act of 1991, even for claims based on events after 1991. Instead, the Supreme Court held that a court could not apply the Civil Rights Act of 1991 to the defendant employer for activity that took place before 1991 because it did not have the opportunity to plan according to that Act with specific respect to such activity. Landgraf 511 U.S. at 282-83 , 114 S.Ct. 1483 . In other words, reliance on the old scheme in a party’s planning is not sufficient to demonstrate that the application of the new scheme would have an impermissible retroactive effect. Instead, a party’s reliance on the old scheme in its planning, coupled with the party’s inability to change its planning in accordance with the new scheme, would demonstrate an impermissible retroactive effect if the new scheme were applied to that party. In this case, it is undisputed that Plaintiff was unable to change her disability planning to accommodate the deletion of Listing 9.09 and implementation of the new obesity rules, which occurred in 1999, because she became disabled in 1996. In contrast, suppose Plaintiff became disabled in 2004. In that ease, even though Plaintiff, before 1999, had planned based on the old regime, she also had the ability to change her planning to accommodate the rules of the new regime, so that the application of the new obesity rules would not have a retroactive effect. Such is not the case here.
The effect on Plaintiffs disability planning also illustrates why the deletion of Listing 9.09 and the implementation of a new regulation was a substantive, as opposed to a procedural, change. A procedural change usually does not work an impermissible retroactive effect because a party usually does not rely on rules of procedure: “We [have] noted the diminished reliance interests in the matter of procedure .... Because rules of procedure regulate secondary rather than primary conduct, the fact that a new procedural rule was instituted after the conduct giving rise to the suit does not make application of the rule at trial retroactive.” Landgraf, 511 U.S. at 275 , 114 S.Ct. 1483 (citations omitted). In short, procedural rules may generally be retroactively applied, because “even if a party had known of a procedural change in advance, it would not have changed its conduct prior to the lawsuit.” United States v. Real Property in Section 9, Town 29 North, Range 1 West Township of Charlton, 241 F.3d 796, 799 (6th Cir.2001) (citing Landgraf, 511 U.S. at 275 , 114 S.Ct. 1483 ). Because a change from one procedure to another generally has an ambiguous and unknown effect on a party, a party usually does not fashion its conduct according to procedural rules. Here, however, had Plaintiff known of the change to the obesity rules in advance, she definitely would have changed her conduct in that her disability planning would have been significantly different. 8
*675 National Mining Association is a textbook example of how a change in rules and regulations in establishing a claim may have an impermissible retroactive effect on a party’s planning based on the old regime. In that case, the employer-coal mine operators purchased insurance to cover their liabilities for claims under the BLBA. 292 F.3d at 855. The insurance companies charged a premium that corresponded to the difficulty in establishing a BLBA claim under the rules and regulations at that time. The DHHS subsequently promulgated numerous rules that made it easier for a coal miner to establish a BLBA claim. Id. The net effect of these rules was that the insurance companies needed to set higher premiums in order to offset the increase in potential liability. Id. The court found that where the new rules affected substantive liability determinations, the rules operated retroactively on pending claims. Id. at 859 (citing Martin, 527 U.S. at 359 , 119 S.Ct. 1998 ).
Inherent in National Mining Association is the notion that the employer-coal mine operators and the insurance companies relied on the then-existing rules and regulations in planning how to address BLBA liability. When the DHHS promulgated new rules that made it easier to establish a BLBA claim, the DHHS disrupted this planning such that application of the new rules to pending claims would have had an impermissible retroactive ef-feet by exposing the coal mine operators to a greater amount of liability, thus subjecting the insurance companies to greater losses than that reflected in the premiums the insurance companies charged under the old regime. Likewise, Plaintiff relied on the then-existing rules and regulations, including Listing 9.09, in her disability planning; the SSA’s application of the new obesity rules would also disrupt this planning so that application to her pending claim would have an impermissible retroactive effect. It goes without saying that Plaintiffs reliance on the SSA’s old regime of rules and regulations is somewhat more subtle and less perceptible than the crystalline form of payment of insurance premiums. This fact, however, does not render Plaintiffs reliance any less real or palpable. The individual consumer is faced with a myriad of decisions to act or to refrain from acting, decisions that are shaped by changes such as the deletion of Listing 9.09 and the implementation of new obesity rules. Just as the coal mine operators and insurance companies would have acted differently in their liability planning under the new BLBA rules and regulations as opposed to the prior system, so too would Plaintiff have acted differently in her disability planning had she known about the change from Listing 9.09 to the new obesity rules. 9 Disruption of Plaintiffs planning implicates Plaintiffs “fair notice, reasonable reliance, and settled ex *676 pectations” with respect to this planning. Landgraf, 511 U.S. at 270 , 114 S.Ct. 1483 .
V.
Because the deletion of Listing 9.09 and the application of the new obesity rules had an impermissible retroactive effect on Plaintiffs pending disability application, I would reverse the order of the district court and remand Plaintiffs case to the SSA so that her application for disability benefits could be considered under Listing 9.09.
. Former Listing 9.09 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 lumbrosacral 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, 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.
. Contrary to Judge Gilman's contention, this position is not a mere or glib labeling of the change in law as "substantive.” The Supreme Court has stated, "Under Landgraf , ... *668 it is appropriate to ask whether the Act affects substantive rights (and thus would be imper-missibly retroactive if applied to preenactment conduct) or addresses only matters of procedure (and thus may be applied to all pending cases regardless of when the underlying conduct occurred).” Altmann, 541 U.S. at 694 , 124 S.Ct. 2240 (emphasis supplied). Thus, the question of whether the change in law was substantive or procedural is an important one, even though the answer to that question may be clouded by hastily applied labels. In this case, as demonstrated by the preceding citations, the change from Listing 9.09 to the new obesity rules was a substantive change, as opposed to being labeled as a substantive change.
. Any attempt to distinguish National Mining Association from the instant case on the grounds that National Mining Association involved potential private party liability, as opposed to government benefits or relief, is unprincipled and must fail. No Supreme Court case has carved out an exception to the general presumption against retroactivity for government benefits or relief. Indeed, in one of its major retroactivity decisions, the Supreme Court found that the deletion of a form of immigration relief had an impermissible retroactive effect on the petitioner’s application for said relief. I.N.S. v. St. Cyr, 533 U.S. 289, 321-22 , 121 S.Ct. 2271 , 150 L.Ed.2d 347 (2001). Simply put, the finding of an imper *670 missible retroactive effect is not reserved solely, or even primarily, for cases of private party liability.
. The lead opinion cites to Glen Coal Company v. Director, Office of Workers’ Compensation Programs as an impediment to this Court’s consideration and adoption of the analysis in National Mining Association. The lead opinion claims that in that case, this Court applied the new BLBA rules to pending cases, a decision that is inconsistent with National Mining Association. This argument fails for three reasons. First, while the Court in Glen Coal Company found that the new BLBA rules could be applied to pending cases, this statement was dicta, as the plaintiff employee met the requirements under the old BLBA scheme. 77 Fed.Appx. 878, 889-90 (6th Cir.2003) (unpublished decision). Second, Glen Coal Company is an unpublished case, so it is not binding on this Court. See, e.g., Lundgren v. Mitchell, 440 F.3d 754 , 765 n. 3 (6th Cir.2006); 6 Cir. R. 206. Third, even if Glen Coal Company were binding authority, the instant case is before the en banc Court, which may overrule prior binding authority. 6 Cir. R. 206.
. While Judge Griffin's partial concurrence correctly concludes that the application of the new rules to Plaintiff's claim had an impermissible retroactive effect, the remedy he proposes, remanding Plaintiff’s case to the SSA to determine whether Plaintiff is entitled to disability payments for the window of time beginning with Plaintiff’s application and ending with the enactment of the new rules, is inconsistent with federal law. The application of the new obesity rules either has an impermissible retroactive effect or it does not; this is indeed an all-or-nothing proposition. Under 42 U.S.C. § 423 (f), the SSA may terminate benefits only for certain specific reasons, not one of which is the adoption of new rules or regulations.
Judge Griffin attempts to explain away § 423(f) by stating that the provision applies only to recipients of disability benefits, and Plaintiff is not a current recipient of disability benefits; however, this is placing the cart before the horse, as Judge Griffin would still have the SSA determine whether Plaintiff should be a recipient of disability benefits in the first place. If the SSA determines, under Listing 9.09, that Plaintiff is disabled and should receive benefits, the SSA may not then take away these benefits as of the date on which the new rules were enacted, for this would be contrary to § 423(f). Indeed, in the new rules, the SSA specifically states, “When we conduct a periodic continuing disability review (CDR), we will not find that an individual’s disability has ended based on a change in a listing.” Social Security Ruling, SSR 02-0Ip; Titles II and XVI: Evaluation of Obesity, 67 Fed.Reg. 57,859 (2002). If the SSA finds that Plaintiff was disabled as of the date of her application, it must give her disability benefits, and it may not terminate those benefits merely because of a rule change on a later date. In order to terminate benefits, the SSA must follow 42 U.S.C. § 423 and the corresponding rules and regulations.
. Of course, whether such an action by the SSA would survive under Chevron review is an open question that would not affect the retroactivity analysis.
. Such an action by the SSA would raise due process and Chevron concerns that would not affect the retroactivity analysis.
. While it is true that the possibility of a shift to a more demanding disability regime "would not have dissuaded” Plaintiff from filing a claim for disability, Concurring Op., Judge Gilman, at 655, this is somewhat beside the point. Plaintiff's disability planning comprises more than her decision to file a claim for disability. Her planning encompasses all of her financial planning to offset the risk of disability, which would be affected by a more demanding disability regime. See supra.
. The instant case is thus distinguishable from the facts in Patel v. Gonzales, 432 F.3d 685 (6th Cir.2005), as there is no indication in that case that the petitioners would have changed their action of illegally entering the United States had they known of the change in eligibility for discretionary relief under § 212(i) of the Immigration and Nationality Act.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9499143. Public record. Not legal advice.