Combs v. Commissioner of Social Security

• Decision Date: 16 August 2006
• Docket Number: No. 04-5275.,04-5275.
• Citation: 459 F.3d 640
• Parties: Barbara COMBS, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 640

459 F.3d 640

Barbara COMBS, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.

No. 04-5275.

United States Court of Appeals, Sixth Circuit.

Argued: December 7, 2005.

Decided and Filed: August 16, 2006.

ARGUED: Timothy N. Despotes, Richmond, Kentucky, for Appellant. Catherine Y. Hancock, United States Department of Justice, Washington, D.C., for Appellee.

ON BRIEF: Timothy N. Despotes, Richmond, Kentucky, for Appellant. Catherine Y. Hancock, Thomas M. Bondy, United States Department of Justice, Washington, D.C., Reginald Speegle, Office of General Counsel, Social Security Administration, Atlanta, Georgia, for Appellee.

Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, and NEILSON, Circuit Judges.^*

ROGERS, J., announced the judgment of the court and delivered an opinion in which BOGGS, C. J., BATCHELDER, GIBBONS, SUTTON, COOK, and McKEAGUE, JJ., joined. GILMAN, J. (pp. 652-657), delivered a separate opinion concurring in the judgment. GRIFFIN, J. (pp. 657-661), delivered a separate opinion concurring in part and dissenting in part. CLAY, J. (pp. 661-676), delivered a separate dissenting opinion, in which MARTIN, DAUGHTREY, MOORE, and COLE, JJ., joined.

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 impermissibly 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 impermissibly retroactive in its effect. Moreover, the district 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 of Soc. 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 lumbosacral 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...