claimant's impairment "prevents [him] from performing work [he] has
performed in the past." See 20 C.F.R. § 404.1520(e). The SSA considers
the claimant not disabled if he is able to perform his past work. Id. If
the claimant cannot perform his past work, the SSA proceeds to step five
to determine whether the claimant can perform other work in the national
economy, considering his age, education and work experience. See
20 C.F.R. § 404.1520(f). If the claimant cannot perform other work,
the SSA finds him disabled. See 20 C.F.R. § 404.1520(f)(1).
Here, the ALJ resolved Plaintiff's claim at the fourth step of the
sequential evaluation process. The ALJ found at step one that Plaintiff
had not engaged in substantial gainful activity since June 8, 1997.
(Recs. 11, 17). At step two, the ALJ determined that Plaintiff's
impairments were severe because they imposed more than a slight
limitation on her ability to perform basic activities. (Recs. 11, 17). At
step three, however, the ALJ held that neither Plaintiff's right foot and
ankle sprain nor her lumbar strain rose to the level of "marked"
limitation of motion required by the applicable section of the Listing of
Impairments found at 20 C.F.R. pt. 404, supt. P, app. 1. (Rec. 18). At
step four, the ALJ found that Plaintiff retained the residual functional
capacity for lifting and carrying fifteen pounds, pushing and pulling
twenty-five pounds occasionally, and standing and walking six hours a
day, provided that she could change position every hour and did not
climb. (Rec. 18). After interviewing the vocational expert who performed
Plaintiff's psychological evaluation, the ALJ concluded that, in light of
Plaintiff's residual functional capacity, she did not suffer from an
impairment or combination of impairments that impeded her from performing
her past relevant work as a payroll clerk. (Rec. 16, 18).
Although the ALJ concluded at step four that Plaintiff was not
disabled, the ALJ proceeded to step five, finding that she also could not
overcome this step of the sequential analysis because she could perform a
number of other jobs available in significant numbers in the national
economy. (Rec. 17). The ALJ further deemed Plaintiff's subjective
complaints of pain not credible to the extent that she claimed that she
had been precluded from engaging in all substantial gainful activity for
a period of time that had lasted or can reasonably be expected to last
for twelve continuous months. (Rec. 18). The ALJ therefore concluded that
Plaintiff was not disabled at any time on or before the date of the
B. The ALJ's Failure to Consider Plaintiff's Obesity
Plaintiff argues that the ALJ erred by failing to consider her obesity
as an additional factor under Listing 9.09, which was in effect at the
time of the hearing before the ALJ.*fn4 If a claimant meets or equals a
listed impairment, she is conclusively presumed to be disabled. See
20 C.F.R. § 404.1520(d); 416.920(d). As stated above, Listing 9.09
required that a claimant meet certain weight and height standards and one
of five other criteria. Of particular relevance here is the first one of
these five: a history of pain and limitation of motion in a
weight-bearing joint or lumbosacral spine supported by findings on
medically acceptable imaging techniques of arthritis in the affected
joint or lumbosacral spine. 20 C.F.R. pt. 404, subpt. P, app. 1.
Plaintiff's medical records submitted to the ALJ showed that she stood
five feet tall and weighed 261-264 pounds, had a history of pain and
limitation of motion in her spine and a finding of degenerative disc
disease in an MRI. (Recs. 176, 106). Alternatively, Plaintiff argues that
even if this Court finds that Listing 9.09 no longer applies, the SSA
erred by failing to consider Plaintiff's obesity at each step of the
sequential evaluation process, as required by the current regulations
which replaced Listing 9.09 while her administrative appeal was pending
at the Appeals Council.
Effective October 25, 1999, the SSA deleted Listing 9.09 from the
Listing of Impairments and substituted Revised Medical Criteria in
listing sections 1.00(F) (musculoskeletal system), 3.00(I)(respiratory
system) and 4.00(F) (cardiovascular system), that require evaluation of
obesity's effect on the claimant in combination with these impairments.
See Revised Medical Criteria for Determination of a Disability, Endocrine
System and Related Criteria, 64 Fed. Reg. 46, 122, 124 (1999). The SSA
clarified its intent with respect to the ALJ's consideration of obesity:
Our purpose in making these changes is to ensure that
adjudicators understand that we consider obesity to be
a medically determinable impairment that can be the
basis for a finding of disability, and that obesity in
combination with other impairments must be considered
when evaluating disability at the listings step and
other steps of the sequential evaluation process. We
are making this change to clarify our intent.
64 Fed. Reg. at 123 (emphasis added).
Therefore, under both the former and current regulations, the SSA had
to consider obesity as a factor when determining whether Plaintiff was
disabled. Because it failed to do so, the Court must remand Plaintiff's
case. The question remains whether this Court should remand the case to
the ALJ to apply the former regulation or the current one.
1. The Application of Listing 9.09 to Claims Pending on Appeal When
It Was Repealed
Only a handful of courts, all at the trial level, except for one
unpublished appellate opinion,*fn5 have addressed the issue of which
regulation to apply to claims pending on appeal when Listing 9.09 was
deleted and replaced.*fn6 These cases have reached conflicting results.
Only two of them have addressed the issue of retroactivity, and these two
did not address the distinction between a retroactive statute and a
In Landgraf v. USI Film Prods., 511 U.S. 244 (1994), the Supreme Court
addressed the issue of retroactivity with respect to statutes. There, the
Court considered whether section 102 of the Civil Rights Act applied to
cases that were pending on appeal when it became law, and held that it
did not. Id. at 249-50. The Court adopted a presumption against
retroactivity because prospectivity "accords with widely held intuitions
about how statutes ordinarily operate" and "will generally coincide with
legislative and public expectations." Id. at 272; see also Jeffries v.
Wood, 114 F.3d 1484, 1494 (9th Cir. 1997). The Court noted, however, that
exceptions exist to the general rule favoring prospectivity.
The Court set forth the following framework to analyze retroactivity:
(1) whether the statute on its face provides for prospective or
retroactive application; (2) in the absence of such an express provision
governing the statute's reach, whether the statute would have retroactive
effect; and (3) if the statute would have retroactive effect, whether
Congress clearly intended such a retroactive effect, overcoming the
presumption of prospectivity. Id. at 280. While Landgraf addressed the
retroactive application of statutes, courts have applied its reasoning to
the issue of retroactivity of regulations. See, e.g., Covey v. Hollydale
Mobilehome Estates, 116 F.3d 830, 838 (9th Cir. 1997); Little Co. Mary
Hosp. & Health Care Ctrs. v. Shalala, 994 F. Supp. 950, 960 (N.D.Ill.
1998) (stating that Landgraf "supplies the test to decide when a statute
(or by natural extension a regulation) operates retroactively"). Here,
the regulation is silent on its face as to whether the changes to 20
C.F.R. pt. 404, subpt. P, app. 1, deleting Listing 9.09 apply
retroactively or prospectively. In the absence of clear language
regarding the reach of the new regulation, the analysis must proceed to
The second step asks whether, if applied retrospectively, the
regulation would have a retroactive effect on a substantive right of the
plaintiff. In other words, "would [the regulation] impair the rights the
party had when he acted, increase a party's liability for past conduct or
impose new duties with respect to transactions already completed."
Landgraf, 511 U.S. at 280.
Courts must ask whether the new provision
attaches new legal consequences to events completed before its
enactment. Id. at 270. Mere changes in procedural rules do not raise
concerns about retroactivity. Landgraf, 511 U.S. at 275 n. 29. But the
presumption against retroactivity is not restricted to cases involving
"vested rights." Id.
Here, Plaintiff's rights would be substantively altered if the revision
to 20 C.F.R. pt. 404, subpt. P, app. 1 was deemed applicable to pending
claims, because the revised regulation would raise the bar on proof of
disability based on obesity. Plaintiff satisfied the height and weight
requirements set forth in Table II of former Listing 9.09 at the time of
the ALJ decision, standing five feet tall and weighing considerably more
than the specified 230 pounds. Furthermore, Plaintiff probably satisfies
the additional criteria required under 9.09(A). Therefore, Plaintiff
likely satisfied the requirements of Listing 9.09, automatically
qualifying her for disability benefits. By contrast, under the new
regulation, Plaintiff would be required to show the extent to which her
obesity affects each step of the sequential evaluation process, and might
not qualify for benefits.
In Landgraf, the Court noted that retroactivity is most troubling when
applied to contractual or property rights where predictability and
stability are of prime importance. Landgraf, 511 U.S. at 271. The United
States points out that while an applicant for Social Security benefits
may have a type of property interest in potential benefits warranting due
process protections, see Goldberg v. Kelly, 397 U.S. 254 (1970), that
interest does not necessarily give rise to substantive rights. Yet none
of the cases cited by the United States are really on point or binding on
this Court. The Supreme Court cases cited by the United States address
whether Congress can cut the benefit levels of various welfare programs
consistent with due process, not whether an agency can change the rules
of entitlement while a case is pending on appeal. See, e.g., United
States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 174 (1980) (railway
benefits, like social security benefits, are not contractual and may be
altered or even eliminated at any time); see also Richardson v. Belcher,
404 U.S. 78, 81 (1971); Atkins v. Parker, 472 U.S. 115, 129 (1985). But
the issue here is not whether constitutional due process blocks
application of a statute. Moreover, Congress (as opposed to an agency to
whom such power has not been delegated) may engage in retroactive
legislation when it expresses its intent to do so clearly.
In another case cited by Defendant, Torres v. Chater, 125 F.3d 166, 170
(3d Cir. 1997), the Third Circuit construed a congressional amendment to
the Social Security Act that eliminated benefits for disability caused by
alcohol and drug addiction and expressly provided for retroactive
application of the provisions. The issue was not whether Congress intended
the statute to operate retroactively — it clearly did — but
the selection of the appropriate retroactive date. The court observed
that "if a recipient's right to future benefits may be terminated by a
statute, it follows that an applicant who has never been declared
eligible may as well be deprived of an inchoate right." Id. at 170. The
court relied "[m]ore fundamentally," however, on the fact that Congress
had made its will with regard to retroactivity clear. Id. (emphasis
The only Ninth Circuit cases cited by the United States in its
supplemental brief are American Mining Congress v. United States
Prot. Agency, 965 F.2d 759 (9th Cir. 1992) and National Med. Enter.,
Inc. v. Sullivan, 957 F.2d 664 (9th Cir. 1992). See Def.'s Supplemental
Brief at 5 ("Def.'s Supp."). As both these cases were decided two years
before Landgraf, they do not apply the analysis that it set forth.
Furthermore, neither addressed the issue of applying a change in a
regulation to adjudicated claims for benefits pending on appeal. American
Mining rejected a challenge to the EPA's regulation requiring owners of
inactive mines to obtain discharge permits. The court found that the
regulation was not retroactive, applying Justice Scalia's reasoning in
his concurrence in Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988),
to the effect that "a retroactive rule is one that alters the past legal
consequences of past actions." American Mining, 965 F.2d at 769. Neither
American Mining nor Justice Scalia's concurrence in Bowen suggested that
this particular formulation of retroactivity was meant to be
comprehensive, a "one size fits all" test that also applies to cases like
this one involving adjudication of benefits claims pending on appeal.
In National Med. Enter., the court found no retroactivity where a
regulation issued in 1976 phased out Medicare reimbursement for goodwill
when "at some future date" the cumulative return reached one hundred
percent. Id. at 671 (emphasis in original). As the court noted, in 1976
when the new rule went into effect, the phase out was plainly
prospective, affecting only the future legal consequences of past
transactions, but not lowering the reimbursement levels until some time
after its promulgation. Id. By contrast, here the United States seeks to
apply a new, more restrictive rule to Plaintiff's eligibility for benefits
than the one in effect when she filed her claim and it was adjudicated at
the administrative hearing.
That application would seem to run afoul at least of the consideration
of fair notice set forth in Landgraf. Further, Landgraf recognized the
"potential unfairness of retroactive application." Landgraf, 511 U.S. at
272. Here, the unfairness to Plaintiff is that she made her claim at a
time when Listing 9.09 was in effect and, without the aid of an
attorney, presented extensive evidence to the ALJ of obesity combined
with other impairments that may well have qualified her as disabled under
that Listing. Through no fault of her own but through the ALJ's error in
not considering whether she met Listing 9.09, she was found not
disabled. Subsequently, while pursuing her administrative appeal to the
Appeals Council, the Listing was repealed and replaced with new, less
favorable regulations regarding obesity. The Appeals Council then
erroneously failed to consider either the new or the old regulations in
rejecting her appeal.
Other similarly situated obese individuals who had their hearings while
Listing 9.09 was still in effect and whose ALJs applied the regulations
properly were granted disability benefits. Their benefits are not being
reevaluated under the new standard. Yet Plaintiff, because of her ALJ's
error, would be subject to the new, less favorable standard than those
who were similarly situated if Plaintiff cannot now avail herself of
Listing 9.09.*fn8 Of course, if Plaintiff is evaluated under the new
criteria and found disabled, she will ultimately be treated the same as
similarly situated individuals. But if she is denied under the new
criteria but would have qualified under the old, she will suffer that
unfairness. And from a public policy standpoint, error by the ALJ will go
The United States argues that the application of the new regulation in
lieu of Listing 9.09 to cases pending on appeal is not properly
classified as retroactive. See Def.'s Supp. at 2-5. When the agency
deleted Listing 9.09 and substituted the new criteria in October 1999, it
failed to clarify the effect of the deletion on cases pending on appeal.
While it explained that the revisions would have "prospective effect,"
the agency described prospective effect simply as not requiring
individuals already found disabled under Listing 9.09 to be reevaluated
under the revised criteria. See Revised Medical Criteria for
Determination of Disability, Endocrine System and Related Criteria, 64
Fed. Reg. at 124.
Seven months later, on May 15, 2000, the SSA issued Social Security
Ruling 00-3p, stating:
The final rules deleting 9.09 apply to claims that
were filed before October 25, 1999, and that were
awaiting an initial determination or that were pending
appeal at any level of the administrative review
process or that had been appealed to court.
Id. (emphasis added). As noted above, some courts from other circuits
have deferred to the agency's interpretation as expressed in this
Ruling. See Fulbright, 114 F. Supp.2d at 475-76; Castrejon, 131 F. Supp.
2d at 1056-57; Havens, 2001 WL 406226; Rodriguez, 2001 WL 406226. In the
absence of any Ninth Circuit authority, this Court declines to do so.
Simply deferring to the agency's interpretation begs the question of
whether following that interpretation would result in impermissible
retroactive rule-making without Congressional authorization. A court may
not defer to an agency's interpretation of its own regulations where the
interpretation is erroneous or inconsistent with a statute. See United
States v. Cleveland Indians Baseball Co., 121 S.Ct. 1433, 1445 (2001).
Yet social security ruling 00-3p would be erroneous and unauthorized if
it compelled retroactive application of the new regulations.
Furthermore, Social Security Rulings, while instructive, are not
conclusive and do not have the force of law. See Holohan v. Massanari,
246 F.3d 1195, 1202 (9th Cir. 2001) (holding that although Social
Security Rulings that are issued by the Commissioner of Social Security
to clarify implementing regulations and agency policies do not have the
force of law, reviewing courts will give them some deference because they
represent the Commissioner's interpretations of the agency's
regulations, unless they are inconsistent with statutes or regulations.)
(citing 20 C.F.R. § 402.35(b)(1)); see also Han v. Bowen,
882 F.2d 1453, 1457 (9th Cir. 1989) (citing Paxton v. Secretary of Health
& Human Servs., 856 F.2d 1352, 1356 (9th Cir. 1988)). Under the second
step of the Landgraf analysis, the Court concludes that applying the
revised regulation to pending cases like Plaintiff's would be
The third step of the Landgraf analysis requires this Court to consider
whether Congress overrode the normal presumption of prospectivity by
clearly expressing its intent to do so, and finds that it did not. As the
United States recognizes, "[i]t is axiomatic that an administrative
agency's power to promulgate legislative regulations is limited to the
authority delegated by Congress." Bowen, 488 U.S. at 208. In particular,
a statutory grant of legislative rulemaking authority
will not, as a general matter,
be understood to
encompass the power to promulgate retroactive rules
unless that power is conveyed by Congress in express
terms. . . . Even where some substantial justification
for retroactive rulemaking is presented, courts should
be reluctant to find such authority absent an express
Id. at 208.
The Supreme Court in Bowen concluded that the SSA did not have any
statutory grant of authority to engage in retroactive rule-making,
citing, among other provisions, the Social Security Act. See Def.'s
Supp. at 2; Bowen, 488 U.S. at 213-14. Furthermore, Defendant concedes
here that it was not aware of any expansion of Congressional intent
before or after that case to grant such authority, nor is the Court.*fn9
Id. While the delegation of rule-making authority to implement the Social
Security Act is broad, the lack of an express grant of authority to
engage in retroactive rulemaking precludes the agency from doing so, at
least absent a substantial justification not presented here.
Accordingly, the Court concludes that the agency's interpretation of
its deletion of Listing 9.09 as applying to cases like Plaintiff's that
were pending on administrative or judicial appeal is erroneous because it
would result in impermissible retrospectivity without Congressional
authority and would be unfairly retroactive. Therefore, Plaintiff's case
shall be remanded to the ALJ for further proceedings pursuant to Listing
2. Plaintiff's obesity as a factor affecting all relevant steps of
the sequential evaluation process.
Alternatively, Plaintiff contends that even if the new regulation
applies to claims pending before the Appeals Council, the ALJ erred by
failing to consider the effects of claimant's obesity at each step of the
sequential evaluation process as the new regulation requires. While the
Court need not reach this ground in view of its determination that
Listing 9.09 applies to Plaintiff's claim, the Court concludes in the
alternative that the agency erred even under its own interpretation that
the revised obesity regulation that replaced Listing 9.09 applies to
Plaintiff. The agency never considered the exacerbating effect of her
obesity on her other impairments under the revised criteria before
rejecting her disability claim.
C. The ALJ's Credibility Determination Regarding Plaintiff's Excess
Plaintiff argues that substantial evidence does not support the ALJ's
findings regarding her subjective statements of pain. An individual's
statements regarding pain or other symptoms are not in themselves
conclusive evidence of a disability. See 42 U.S.C. § 423(d)(5)(A);
20 C.F.R. § 404.1529. A claimant must produce "medical evidence of an
underlying impairment which is reasonably likely to be the cause of the
alleged pain." Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991).
Pain cannot be objectively measured, however, because "excess pain is by
definition pain at a level above that supported by medical findings."
Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). Accordingly, "the ALJ's
assessment of the claimant's credibility becomes exceptionally
important." Id. at 602.
The ALJ may not discredit the claimant's subjective complaints solely
the objective evidence fails to fully corroborate the degree of
pain alleged. See Reddick, 157 F.3d at 722; Bunnell, 947 F.2d at 343,
345. To discredit the claimant's pain testimony, the ALJ "must make
specific findings supported by the record." Bunnell, 947 F.2d at 346.
There must be "clear and convincing" reasons for discrediting the
claimant's testimony, and the ALJ must identify the testimony that "is
not credible and [the] evidence that undermines the claimant's
complaints." Reddick, 157 F.3d at 722 (quoting Lester v. Chater,
81 F.3d 821, 834 (9th Cir. 1996)). By itself, the fact that a claimant
does not exhibit manifestations of pain at the hearing before the ALJ is
insufficient to rebut a claim of pain. See Fair, 885 F.2d at 602; see
also Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985). The ALJ
may, however, disregard self-serving statements that are not supported by
objective findings. See Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir.
1986). The ALJ may also consider whether the claimant engages in daily
activities that could be transferred to the workplace, as well as
"unexplained, or inadequately explained, failure to seek treatment or
follow a prescribed course of treatment." Bunnell, 947 F.2d at 346
(quoting Fair, 885 F.2d at 603).
At the administrative hearing Plaintiff testified that when she walks
for twenty minutes, her back "gets hot and then it shoots a shooting pain
into my legs and they go numb. And then I'm like down on my back for like
two days until the swelling goes down." (Rec. 30). Plaintiff also stated
that she can sit up straight for about two hours at a time but then has
to get up and walk around or put her feet up for awhile. (Rec. 32). After
sitting for about two hours, Plaintiff described the pain as occurring in
the middle of her back and as lasting for "five minutes or so." (Recs.
The ALJ articulated four reasons for discrediting Plaintiff's excess
pain testimony. First, the ALJ did not find that Plaintiff's testimony
provided a convincing description of the nature, location, onset,
duration, frequency, radiation or intensity of the pain. (Rec. 15). The
ALJ noted, "[w]hen asked about precipitating factors, she was unable to
provide any details about activities that might bring about her
discomfort." Id. Second, the ALJ did not find Plaintiff's medical
treatment sufficient. For example, Plaintiff pursued only limited and
conservative medical treatment, and Plaintiff testified that she took no
medication because of the side effects. Id. Third, although Plaintiff
claimed family members performed most daily activities, Plaintiff was
able to care for her personal needs, go to church, do some shopping and
drive to pick her children up from school. Id. Finally, the ALJ noted
that after filing for disability benefits, Plaintiff did become employed
as a legal service courier but left that job not due to any physical
limitations, but because her employer would not permit her to wear tennis
These four factors in combination are substantial evidence in support
of the ALJ's credibility determination. The ALJ did not discredit
Plaintiff's pain testimony on the basis of insufficient objective
evidence or base his credibility determination solely upon Plaintiff's
failure to exhibit pain at the administrative hearing. Instead, the ALJ
made specific findings and identified the testimony he found not credible
as well as the testimony that undermined Plaintiff's subjective
complaints. Therefore, substantial evidence exists in the record in
support of the ALJ's credibility determination.
D. INABILITY TO PERFORM PAST WORK
Defendant argues that because Plaintiff failed to prove an inability to
past relevant work as a payroll clerk, she is not disabled
within the meaning of the Social Security Act. Past relevant work only
becomes relevant, however, at step four of the five-step sequential
Here, pursuant to Listing 9.09, Plaintiff's obesity should have been
considered in reaching a decision as to either step two or step three of
the five-step sequential process. Only if she did not have a listed
impairment or its equivalent at step three taking her obesity into
account, would it be necessary to proceed to step four and consider her
ability to perform past relevant work.
E. EXTRA-RECORD EVIDENCE
Defendant argues that this Court should not consider Plaintiff's
submission of extra-record evidence because it is immaterial. This
allegedly extra-record evidence consists of a February 13, 1998 letter
written by Dr. Cummins and an August 13, 1999 letter written by Dr.
Extra-record evidence may provide a basis for remand, but not for
summary judgment. To secure a remand for the consideration of new
evidence, Plaintiff must show that the evidence is material and that good
cause existed for the failure to produce the evidence in the prior
proceeding. 42 U.S.C. § 405(g); see Booz v. Secretary of Health &
Human Serv., 734 F.2d 1378, 1380 (9th Cir. 1984). New evidence is
material if there is a reasonable possibility that the new evidence would
have changed the outcome of the Commissioner's determination. Id.
Here, the letter from Dr. Cummins is not extra-record evidence since it
already appears in the record twice. See Recs. 160, 172. Dr. Peters'
letter is new evidence. Defendant contends that the letter contradicts
Dr. Peters' medical notes contained in the record and, thus, would have
been disregarded by the ALJ as unreliable. See Johnson v. Shalala,
60 F.3d 1428, 1433 (9th Cir. 1995). Dr. Peters' medical note only stated
that during one of Plaintiff's visits she moved about "quite well" (Rec.
115), which is not necessarily inconsistent with his subsequent letter
that, given her various disabling problems in combination, Plaintiff is
"not capable of any type of employment." See Letter attached to Pl.'s
Mot. In any event, this Court has not considered Dr. Peters' letter in
its decision to remand for error that occurred at step three. On remand,
however, the agency should consider Dr. Peters' letter.
Based on the foregoing reasons, this case shall be REMANDED for further
proceedings pursuant to Listing 9.09 as the regulations existed at the
time of the ALJ hearing.
IT IS SO ORDERED.