Angela Cox v. Kilolo Kijakazi

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 1, 2023 Decided July 28, 2023

No. 22-5050

ANGELA M. COX,
APPELLANT

v.

KILOLO KIJAKAZI, ACTING COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
APPELLEE

Consolidated with 22-5070

Appeals from the United States District Court
for the District of Columbia
(No. 1:18-cv-02389)

Christine P. Benagh argued the cause and filed the briefs
for appellant/cross-appellee.

Alisa B. Klein, Attorney, U.S. Department of Justice,
argued the cause for appellee/cross-appellant. With her on the
briefs were Brian M. Boynton, Principal Deputy Assistant
Attorney General, and Edward Himmelfarb, Attorney. Jane M.
Lyons, Assistant U.S. Attorney, entered an appearance.
 2

Before: SRINIVASAN, Chief Judge, MILLETT and CHILDS,
Circuit Judges.

Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge: In 2014, Angela Cox applied for
Supplemental Security Income based on disability. While her
application was pending, the Social Security Administration
promulgated rules with new criteria for demonstrating
disability and made them applicable to pending claims like
Cox’s. An Administrative Law Judge subsequently found Cox
ineligible for benefits under those updated criteria.

Cox then filed suit in federal district court, and the court
overturned the agency’s decision on the ground that application
of the new criteria was impermissibly retroactive. The court
ordered the agency to reconsider Cox’s case under the criteria
in place when she first filed her claim. The district court
rejected all of Cox’s other challenges to the agency’s decision.

Cox and the Social Security Administration have cross-
appealed. We hold that application of the new criteria to Cox’s
pending claim was not retroactive, but that the Administrative
Law Judge erred in his analysis of evidence from Cox’s
treating physician. Accordingly, we reverse the district court’s
decision and remand for further proceedings.
 3
I

A

1

The Social Security Act, 42 U.S.C. § 301 et seq., was
enacted in 1935 in response to economic suffering and
deprivation caused by the Great Depression. See Smith v.
Berryhill, 139 S. Ct. 1765, 1771 (2019). Title XVI of the Act,
42 U.S.C. §§ 1381–1383f, sets out the Supplemental Security
Income (“SSI”) program, which provides benefits for low-
income individuals who are over 65 years old, those who are
blind, and those who are disabled. See id. §§ 1381, 1381a,
1382; see also Bowen v. Galbreath, 485 U.S. 74, 75 (1988).

To be eligible for SSI based on disability, a claimant must
demonstrate that disability prevents her from earning a living.
In particular, the Act requires that a successful claimant be
“unable to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment”
that either “can be expected to result in death” or “has lasted or
can be expected to last for a continuous period of not less than
twelve months.” 42 U.S.C. § 1382c(a)(3)(A). Such an
impairment must be severe enough that a claimant “is not only
unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of
substantial gainful work * * * in the national economy[.]” Id.
§ 1382c(a)(3)(B).

The Social Security Administration (“Administration”)
has promulgated regulations that set out a sequential, multi-
step process for determining whether a claimant is disabled.
 4
First, the claimant must show that she is not engaged in
“substantial gainful activity[.]” 20 C.F.R. §§ 416.920(a)(4)(i),
(b).

Second, the claimant must show that she has a “severe
medically determinable physical or mental impairment” that
meets the statutory requirements. 20 C.F.R.
§ 416.920(a)(4)(ii); see id. §§ 416.909, 416.920(c); 42 U.S.C.
§ 1382c(a)(3)(A).

Third, the claimant can establish a qualifying disability by
showing that she “suffers from an impairment that meets or
equals an impairment listed in the appendix to the
[Administration] regulations[,]” which is known as its
“Listings.” See Jones v. Astrue, 647 F.3d 350, 353 (D.C. Cir.
2011). If the claimant has met the first two steps and her
disability is on that list, she is deemed disabled and qualifies
for benefits, with no further inquiry. 20 C.F.R.
§§ 416.920(a)(4)(iii), (d); Jones, 647 F.3d at 353.

Fourth, if the claimant’s impairment does not fall within
the Listings, she may still be entitled to benefits. Under step
four, the Administration evaluates the claimant’s “residual
functional capacity and [her] past relevant work.” 20 C.F.R.
§ 416.920(a)(4)(iv). An individual’s “residual functional
capacity” is “the most [she] can still do despite [her]
limitations.” Id. § 416.945(a)(1); see Butler v. Barnhart, 353
F.3d 992, 1000 (D.C. Cir. 2004) (residual functional capacity
inquiry “is designed to determine the claimant’s uppermost
ability to perform regular and continuous work-related
physical and mental activities in a work environment”). So
step four evaluates whether the claimant is able, physically and
mentally, to perform her past relevant work. If she can, then
she will be found not disabled. See 20 C.F.R. §§ 416.920(e),
(f).
 5

In making the residual functional capacity determination,
the Administration considers medical and other evidence. By
regulation, the Administration is required to give “controlling
weight” to the opinions of a treating physician “if they are not
inconsistent with other substantial record evidence and are
well-supported by medically acceptable clinical and laboratory
diagnostic techniques.” Butler, 353 F.3d at 1003 (citing 20
C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)) (internal quotation
marks omitted); see id. (according “substantial weight” to the
opinions of treating physicians) (quoting Williams v. Shalala,
997 F.2d 1494, 1498 (D.C. Cir. 1993)). If the Administration
does not give a treating physician’s opinion controlling weight,
then the Administration must “always give good reasons * * *
for the weight” it does give the opinion. See 20 C.F.R.
§ 404.1527(c)(2).

The claimant bears the burden of proof at each of those
four steps. Jones, 647 F.3d at 352. If the claimant succeeds,
then the burden shifts, at the fifth step, to the Commissioner of
Social Security to demonstrate that the claimant can perform
other work. See 20 C.F.R. § 416.920(a)(4)(v). To meet that
burden, the Commissioner must show that the claimant “can
make an adjustment to other work, and must show that there
are jobs in the national economy that the claimant can perform”
in light of the claimant’s “residual functional capacity, age,
education, and work experience[.]” Jones, 647 F.3d at 353 . If
the Commissioner cannot make that showing, then the claimant
is disabled and entitled to benefits. Id.

2

This case involves step three, which considers whether the
claimant’s impairment fits within the Administration’s
“Listings.” At the time Angela Cox applied for SSI benefits,
 6
the Administration’s Listings provided that a claimant would
be deemed disabled if she had “significantly subaverage
general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental
period; i.e., the evidence demonstrates or supports onset of the
impairment before age 22.” 20 C.F.R. pt. 404, subpt. P, app.
1, § 12.05 (2014) (“2014 Listings”). The regulation then listed
four possible ways that the “required level of severity” for this
disorder could be met:

A. Mental incapacity evidenced by dependence upon
others for personal needs (e.g., toileting, eating, dressing,
or bathing) and inability to follow directions, such that the
use of standardized measures of intellectual functioning is
precluded; OR

B. A valid verbal, performance, or full scale IQ of 59 or
less; OR

C. A valid verbal, performance, or full scale IQ of 60
through 70 and a physical or other mental impairment
imposing an additional and significant work-related
limitation of function; OR

D. A valid verbal, performance, or full scale IQ of 60
through 70, resulting in at least two of the following:

1. Marked restriction of activities of daily living; or

2. Marked difficulties in maintaining social
functioning; or

3. Marked difficulties in maintaining concentration,
persistence, or pace; or
 7
4. Repeated episodes of decompensation,
each of extended duration.

Id.

While Cox was waiting for a hearing before an
Administrative Law Judge (“ALJ”), the Administration
promulgated new Listings. See Revised Medical Criteria for
Evaluating Mental Disorders, 81 Fed. Reg. 66,138 (Sept. 26,
2016) (“2017 Listings”). The updated Listings became
effective January 17, 2017, and applied both to “new
applications filed on or after the effective date of the rules, and
to claims that [were] pending on or after the effective date.” Id.
at 66,138.

The 2017 Listings provide that a claimant is disabled if she
has an intellectual disorder and her “[1] disorder is
characterized by significantly subaverage general intellectual
functioning, [2] significant deficits in current adaptive
functioning, and [3] manifestation of the disorder before age
22.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00B(4)(a); see
Revised Medical Criteria for Evaluating Mental Disorders, 81
Fed. Reg. at 66,161. 1

The first element “requires a claimant to have obtained
either” a full-scale IQ score of 70 or below, or a full-scale IQ
score of 71–75 with a verbal or performance IQ score of 70 or
below. Revised Medical Criteria for Evaluating Mental
Disorders, 81 Fed. Reg. at 66,155. The second element
requires an “extreme limitation of one, or marked limitation of

1
A claimant may also be deemed intellectually disabled under the
2017 Listings if she lacks the cognitive ability to participate in an IQ
test. Revised Medical Criteria for Evaluating Mental Disorders, 81
Fed. Reg. at 61,155.
 8
two” of: (a) abilities to understand, remember, or apply
information; (b) interaction with others; (c) concentration,
persistence, or maintaining pace; or (d) adapting or managing
one’s self. Id. at 66,167. Finally, the claimant must provide
evidence that “demonstrates or supports the conclusion that the
disorder began prior to age 22.” Id.

B

1

Angela Cox is 57 years old. Her complaint alleges that she
has an IQ of 61, and that she is illiterate and experiences a
variety of health problems.

Cox has pursued SSI benefits from the Administration for
nearly a decade. She first applied for benefits in May 2014.
Five months later, her application was rejected. Cox applied
again in November 2014. Her claim was denied in June 2015,
and again on reconsideration. Cox then filed a request for a
hearing in front of an ALJ. A hearing was held in January
2018.

In April 2018, the ALJ denied Cox’s request for benefits.
The ALJ found that Cox had met her burden at steps one and
two because (1) Cox had not engaged in substantial gainful
activity since her November 2014 application for benefits, and
(2) her four severe impairments (a learning disorder, an
intellectual disorder, a depressive disorder, and an anxiety
disorder) significantly limited her ability to perform basic work
activities.

At step three, the ALJ found that Cox’s impairments did
not map onto the 2017 Listings. The ALJ found that Cox did
not meet the latter two of the three elements—“significant
 9
deficits in current adaptive functioning, and manifestation of
the disorder before age 22[,]” 20 C.F.R. pt. 404, subpt. P, app.
1, § 12.00B(4)(a); see Revised Medical Criteria for Evaluating
Mental Disorders, 81 Fed. Reg. at 66,161. The ALJ explained
that Cox “does not have an extreme or marked limitation in any
area of mental functioning[,]” and so “does not have the
requisite marked lack of cognitive functioning currently to
meet the listing.” J.A. 120. The ALJ also noted that her mental
capacity was tested at age 48, which the ALJ found was 26
years beyond the required showing of an impairment’s onset
prior to age 22. J.A. 120.

At step four, with respect to Cox’s residual functional
capacity, the ALJ found that Cox’s claims about the “intensity,
persistence, and limiting effects” of her depression, anxiety,
learning difficulties, and cognitive difficulties were not
supported by the record evidence. J.A. 121. He then found
that she was capable of “performing simple, routine, and
repetitive tasks in [a] low stress work environment[.]” J.A.
124.

As part of these findings, the ALJ considered, among other
evidence, the testimony of Dr. Colleen N. Hawthorne, Cox’s
treating physician. Dr. Hawthorne had advised that Cox has a
“good ability to follow work rules, function independently,
understand, remember and carry out simple job instructions,
demonstrate reliability, and maintain personal appearance.”
J.A. 123. Dr. Hawthorne then added that, apropos of potential
work-related activities, Cox has “highly impaired/limited”
reading and writing skills and that her cognitive impairments
included “poor attention, concentration, and focus.” J.A. 416.
She further observed that Cox’s “[f]requent low mood and
anxiety results in acute heightened cognitive impairment and
poor functioning.” J.A. 416. And she noted that Cox had “only
a fair ability to deal with the public, use judgment, interact with
 10
supervisors, relate predictably in social situations, deal with
work stresses, maintain attention and concentration, behave in
an emotionally stable manner, and understand, remember, and
carry out complex and detailed job instructions.” J.A. 123.
Finally, Dr. Hawthorne estimated that Cox would be absent
from any potential workplace about twice a month because of
her health issues.

The ALJ gave only “partial weight” to Dr. Hawthorne’s
opinion, reasoning that her views were “mostly consistent with
the medical evidence,” but were “not entirely consistent with
Dr. Hawthorne’s own mental status findings[,]” her
quantitative assessment of Cox’s functioning, or other doctors’
medical examinations. J.A. 123.

Given these residual functional capacity findings, the ALJ
determined at step four of the Administration’s process that
Cox could perform her past relevant work as a commercial
cleaner. The ALJ added that, at step five, there were other jobs
in the national economy that Cox would be able to perform,
based on a vocational expert’s testimony. Because the ALJ
found that Cox was not disabled at steps four and five, she was
not eligible for SSI benefits.

In August 2018, the Administration’s Appeals Council
denied Cox’s request for reconsideration of the ALJ’s decision.

2

Cox filed suit in the United States District Court for the
District of Columbia seeking to overturn the agency’s decision.
The parties subsequently filed cross-motions, with Cox seeking
reversal and the Commissioner seeking affirmance of the
Administration’s decision.
 11
The Magistrate Judge issued a report and recommendation
recommending that the district court grant in part and deny in
part Cox’s motion for reversal, and deny the Commissioner’s
motion for affirmance. Cox v. Saul, No. 18 Civ. 02389, 2020
WL 9439356 (D.D.C. Sept. 1, 2020) (“Cox I”), report and
recommendation adopted sub nom. Cox v. Kijakazi, No. 18
Civ. 02389, 2022 WL 178953 (D.D.C. Jan. 19, 2022). The
Magistrate Judge recommended that Cox’s case be remanded
to the agency both because the ALJ impermissibly applied the
2017 Listings retroactively to Cox’s claim, and because the
ALJ should have applied a rebuttable presumption that Cox’s
intellectual disorder began before the age of 22. Id. at *6. The
Magistrate Judge found no basis for reversal in the rest of
Cox’s claims.

3

In January 2022, the district court issued an opinion
adopting the Magistrate Judge’s report and recommendation.
Cox v. Kijakazi, No. 18 Civ. 02389, 2022 WL 178953, at *1
(D.D.C. Jan. 19, 2022) (“Cox II”).

The district court held that application of the 2017 Listings
to Cox’s claim was impermissibly retroactive because it
“required Cox to meet more stringent standards” to
demonstrate disability, and so “change[d] the legal landscape”
for Cox’s claim. Cox II, 2022 WL 178953, at *7 (alteration in
original) (quoting National Mining Ass’n v. Department of
Labor, 292 F.3d 849, 864 (D.C. Cir. 2002) (per curiam)). The
court reasoned that, “[b]ecause the revised rules indeed
‘impair[ed] rights [that Cox] possessed at the time she acted,’
they were impermissibly applied to her claims.” Id. at *8
(second and third alterations in original) (quoting Landgraf v.
USI Film Prods., 511 U.S. 244, 280 (1994)). The district court
ruled that remand was appropriate for the agency to determine
 12
if Cox was eligible for benefits under the 2014 Listings. Id. at
*9.

The district court then rejected Cox’s argument that the
ALJ failed to apply the treating physician rule to Dr.
Hawthorne’s testimony. Cox II, 2022 WL 178953, at *11. The
court concluded that, “[b]ecause the ALJ found Dr.
Hawthorne’s opinion to be internally inconsistent and in
conflict with other evidence in the record, he was not required
to give that opinion controlling weight.” Id. The district court
also held that the ALJ had adequately justified that conclusion
“by specifying the internal consistency issues * * * and citing
the contradictory evidence in the record.” Id.; see id. at *12.

The district court further ruled that any error made by the
ALJ at step four—namely, finding that Cox was able to
perform her past relevant work—was harmless given his
alternative findings at step five. Cox II, 2022 WL 178953, at
*12. The district court did order, though, that on remand, the
ALJ should consider Cox’s processing speed in determining
her residual functional capacity. Id. Finally, the district court
declined to consider Cox’s claims that the Administration
violated the Administrative Procedure Act in promulgating the
2017 Listings. Id. at *10; see also Cox I, 2020 WL 9439356,
at *13 n.20. Accordingly, the district court granted in part and
denied in part Cox’s motion for reversal, denied the
Commissioner’s motion for affirmance, vacated the
Administration’s decision, and remanded to the agency. Cox
II, 2022 WL 178953, at *12.

4

The parties cross-appealed. While the case was being
briefed, Cox moved to supplement the record to add
certifications about her school records that, in her view,
 13
bolstered her claim of her intellectual disorder’s early onset.
See Order at 1–2, Cox v. Kijakazi, No. 22-5050 (D.C. Cir. Oct.
4, 2022).

II

The district court had jurisdiction over this case under 42
U.S.C. § 405(g). We have jurisdiction under 28 U.S.C. § 1291.

The Commissioner’s “ultimate determination” about
entitlement to benefits “will not be disturbed if it is based on
substantial evidence in the record and correctly applies the
relevant legal standards.” Butler, 353 F.3d at 999. We review
the district court’s decision and any questions of law, including
retroactivity, de novo. See Jones, 647 F.3d at 355; Judicial
Watch, Inc. v. Bureau of Land Mgmt., 610 F.3d 747, 749 (D.C.
Cir. 2010).

III

Because application of the 2017 Listings to Cox’s pending
claim was not retroactive as a matter of law, we reverse the
district court’s judgment in relevant part, but we remand for
further consideration of Dr. Hawthorne’s testimony under the
treating physician rule. We otherwise decline to consider
Cox’s challenges to the agency’s decision.

A

Our starting point is a presumption against retroactivity by
which we “read laws as prospective in application unless
Congress has unambiguously instructed” otherwise. Vartelas
v. Holder, 566 U.S. 257, 266 (2012); see also Landgraf, 511
U.S. at 265 (“Elementary considerations of fairness dictate that
individuals should have an opportunity to know what the law
 14
is and to conform their conduct accordingly[.]”). Similarly, an
agency may not promulgate “retroactive” rules without express
authorization from Congress. Bowen v. Georgetown Univ.
Hosp., 488 U.S. 204, 208 (1988).

At the same time, the general rule is that new law is
applied to pending cases unless its application “would impair
rights a party possessed when he acted, increase a party’s
liability for past conduct, or impose new duties with respect to
transactions already completed.” Landgraf, 511 U.S. at 280;
id. at 273; see also National Mining Ass’n v. Department of the
Interior, 177 F.3d 1, 8 (D.C. Cir. 1999) (“An administrative
rule is retroactive if it ‘takes away or impairs vested rights
acquired under existing law, or creates a new obligation,
imposes a new duty, or attaches a new disability in respect to
transactions or considerations already past.’”) (quoting
Association of Accredited Cosmetology Schs. v. Alexander, 979
F.2d 859, 864 (D.C. Cir. 1992)).

In this case, the parties agree that Congress has not granted
the Administration power to promulgate rules that are
retroactive within the meaning of Landgraf. Cox Opening Br.
29; Commissioner Opening Br. 20. So the question is whether
the Administration’s application of the 2017 Listings to Cox’s
pending case was retroactive under Landgraf’s standards. It
was not.

First, application of the 2017 Listings does not impair
Cox’s vested rights—that is, legal rights that she already
possessed when she filed her claim. See Landgraf, 511 U.S. at
280; Association of Accredited Cosmetology Schs., 979 F.2d at
864. Cox identifies no pre-filing right she possessed that has
been impaired. And Cox’s filing of her application for SSI
benefits itself did not vest her with any legal right to have her
claim decided under the 2014 Listings, as opposed to the 2017
 15
Listings. See Chadmoore Commc’ns, Inc. v. FCC, 113 F.3d
235, 241 (D.C. Cir. 1997) (no rights vested on filing for
application for extension for implementing license); Hispanic
Info. & Telecomms. Network, Inc. v. FCC, 865 F.2d 1289,
1294–1295 (D.C. Cir. 1989) (“The filing of an application
creates no vested right to a hearing; if the substantive standards
change so that the applicant is no longer qualified, the
application may be dismissed.”).

Cox also does not point to any source of law vesting her
with the right to have her disability assessed under one set of
regulations rather than another. Nor are we aware of any. The
Social Security Act does not provide claimants with the right
to have their claims adjudicated under any particular Listings
or similar regulatory interpretation upon application. Rather,
the statute and implementing regulations simply instruct the
Administration to award benefits only to claimants it finds to
be disabled. See 42 U.S.C. § 1381a; cf. Celtronix Telemetry,
Inc. v. FCC, 272 F.3d 585, 589 (D.C. Cir. 2001) (“Celtronix
never explains where this vested right came from. * * * [I]t is
undisputed that the Commission always retained the power to
alter the term of existing licenses by rulemaking.”).

What we do know is that the Social Security Act gave the
Administration “the flexibility and boldness in adjustment to
everchanging conditions which it demands[,]” including by
statutorily delegating to it the right to make necessary changes
to its programs. See Flemming v. Nestor, 363 U.S. 603, 610–
611 (1960). That flexibility would be significantly hamstrung
if the process for evaluating disabilities were locked in the
moment a claim was filed, no matter how long it took to
adjudicate. And those who would benefit from medical
updates to the regulatory regime would be harmed if the agency
were required to apply outdated modes of analysis simply
because of the date a claim was submitted.
 16

Cox likewise had no right to SSI benefits at the time she
filed her claim as her status had not yet been adjudicated. See
McCavitt v. Kijakazi, 6 F.4th 692, 694 (7th Cir. 2021) (finding
application of new Listings to pending claims not
impermissibly retroactive in part because “[r]ights under a
statute may be said to vest on the date of a judicial decision”).

No doubt Cox believed that the 2014 Listings would be
applied when she filed her claim. But anticipation alone does
not create a vested right. A law that “merely ‘upsets
expectations based in prior law’” is not retroactive on that
basis. Empresa Cubana Exportadora de Alimentos y
Productos Varios v. Department of Treasury, 638 F.3d 794,
799 (D.C. Cir. 2011) (quoting Landgraf, 511 U.S. at 269).

What Cox also overlooks is that her inability to rely on the
2014 Listings is not dispositive of her claim for SSI benefits.
The Listings only “operate as a presumption of disability that
makes further inquiry unnecessary.” Sullivan v. Zebley, 493
U.S. 521, 532 (1990). An applicant can still demonstrate
disability at steps four and five if she shows that she cannot
perform her past relevant work, and the Commissioner cannot
demonstrate that she can perform other work. So the 2017
Listings “did not deprive her of her ability to prove entitlement
to those benefits[.]” See Combs v. Commissioner of Soc. Sec.,
459 F.3d 640, 656 (6th Cir. 2006) (en banc) (Gilman, J.,
concurring).

Keep in mind too that the Administration revises Listings
to “reflect advances in medical knowledge, treatment, and
methods of evaluating” impairments. See, e.g., Revised
Medical Criteria for Determination of Disability,
Musculoskeletal System and Related Criteria, 66 Fed. Reg.
58,010, 58,010 (Nov. 19, 2001); see also Commissioner
 17
Opening Br. 22–23. While Cox argues that the 2017 Listings
put her at a disadvantage relative to the 2014 Listings, that is
not a universal result. The new Listings may improve other
claimants’ prospects of obtaining benefits. Cf., e.g., Brown v.
Barnhart, 370 F. Supp. 2d 286, 291 (D.D.C. 2005) (reversing
on grounds of ALJ’s failure to apply updated listings, which
“deprived Mr. Brown of the opportunity to prove that his
condition ‘meets or equals a listed impairment’” at step three)
(quoting 20 C.F.R. § 404.1520). “Applying the current law, in
other words, leads to consequences that are far from
universally negative.” Combs, 459 F.3d at 657 (Gilman, J.,
concurring).

Second, application of the 2017 Listings does not impose
a new obligation or duty on Cox. Cf., e.g., Quantum Ent. Ltd.
v. Department of the Interior, 714 F.3d 1338, 1345 (D.C. Cir.
2013) (new contractual obligation created by law would be
impermissibly retroactive). Cox does not claim otherwise.
Nor could she. The new Listings do not affect Cox’s primary
conduct or legal obligations. Rather, the Listings regulate how
the Administration makes its decisions about who is entitled to
disability benefits. While the Administration’s rules affect its
own obligations with respect to adjudicating Cox’s claim, they
have no such effect on Cox. See Combs, 459 F.3d at 647.

Third, application of the 2017 Listings did not deny Cox
fair notice, disrupt reasonable reliance, or impair settled
expectations. See Landgraf, 511 U.S. at 270. Cox does not
argue that the Listings are impermissibly retroactive in any of
these senses. She does not contend, for example, that she
engaged in any conduct in reliance on having the prior Listings
applied to her claim. See Combs, 459 F.3d at 646 (explaining
how these factors “weigh against finding a retroactive effect”
for Listings applied to pending claims).
 18
Similarly, while Cox may have expected that the Listings
in effect at the time that she filed her claim would apply to her,
that does not constitute a “settled expectation” for retroactivity
purposes. Rather, such expectations are those “on which a
party might reasonably place reliance.” See Qwest Servs.
Corp. v. FCC, 509 F.3d 531, 540 (D.C. Cir. 2007). But it
would not have been reasonable for Cox to rely on having the
2014 Listings applied to her claim. Combs, 459 F.3d at 655
(Gilman, J., concurring) (no “justifiable reliance on then-
existing regulations” by seeking benefits under earlier listings).
For one, Cox may not be eligible for benefits even under those
Listings. And there was no reasonable assumption that the
Administration would keep its regulations static, particularly
given its Notice of Proposed Rulemaking that was in effect
when she filed her claim. See Revised Medical Criteria for
Evaluating Mental Disorders, 75 Fed. Reg. 51,336 (Aug. 19,
2010) (notice of proposed rulemaking).

In sum, because application of the 2017 Listings did not
“impair rights [Cox] possessed when [she] acted,” impose any
new legal obligation on Cox, deprive her of fair notice, unsettle
expectations, or disrupt any reasonable reliance, the
Administration did not impermissibly apply the Listings
retroactively to Cox’s pending case. See Landgraf, 511 U.S. at
280; cf. Republic of Austria v. Altmann, 541 U.S. 677, 693
(2004) (“[R]etroactive statutes may upset settled expectations
by taking away or impairing vested rights acquired under
existing laws, or creating a new obligation, imposing a new
duty, or attaching a new disability, in respect to transactions or
considerations already past[.]”) (formatting modified).

Cox counters that, under our decision in National Mining
Association v. Department of Labor, 292 F.3d 849 (D.C. Cir.
2002) (per curiam), application of the 2017 Listings to her
claim is impermissibly retroactive. That is incorrect. National
 19
Mining Association concerned a challenge to the Secretary of
Labor’s regulations under the Black Lung Benefits Act, 30
U.S.C. § 901 et seq. See 292 F.3d at 853. That Act set up a
program to “allocate to the mine operators an actual,
measurable cost of their business” in terms of legal and
financial responsibility for miners sickened by black lung
disease. Id. at 854 (formatting modified) (quoting Usery v.
Turner Elkhorn Mining Co., 428 U.S. 1, 19 (1976)). We noted
there that, “where a rule ‘changes the law in a way that
adversely affects [a party’s] prospects for success on the merits
of the claim,’ it may operate retroactively,” and so be
impermissible. Id. at 860 (quoting Ibrahim v. District of
Columbia, 208 F.3d 1032, 1036 (D.C. Cir. 2000)).

Cox seizes on that language to argue that the 2017 Listings
were retroactively applied because they adversely affected her
prospects for success on her benefits claim. Cox overreads
National Mining Association. That case applied the same test
for retroactivity that we do here, see 292 F.3d at 859, and so it
did not hold that any rule that makes a party’s success less
likely is impermissibly retroactive. The language Cox leans
on—that a change in law might be impermissibly retroactive
by “adversely affect[ing] a party’s prospects for success”—
was just a shorthand explanation for how a procedural rule
could affect substantive rights in a way that could be
impermissibly retroactive. Id. at 860 (formatting modified);
see id. at 859–860 (“Where a ‘procedural’ rule changes the
legal landscape in a way that affects substantive liability
determinations, however, it may operate retroactively. * * * [A
rule] may operate retroactively even if designated ‘procedural’
by the Secretary.”).

More to the point, the regulations were impermissibly
retroactive in National Mining Association because they
subjected companies to increased liability for past acts.
 20
Specifically, they directly increased the scope of mine
operators’ liability and took away existing defenses for conduct
they could not control in pending cases. See National Mining
Ass’n, 292 F.3d at 864 (rule that requires adjudicator to
determine whether a miner is totally disabled by black lung
disease “without considering his unrelated, nonpulmonary
disability” that could contribute to his disability impermissibly
retroactive because more miners would be able to recover); id.
at 865 (rule that created a rebuttable presumption in favor of
the miner impermissibly retroactive); id. at 866 (rule that
codified agency practice of not reducing miner’s Black Lung
Benefits Act payments by amount received under state
workers’ compensation laws was impermissibly retroactive).
The regulations also added to the pool of miners for whose
diseases the operators could be held liable. Id. at 867
(regulations “expand[ing] the scope of coverage by making
more dependents and survivors eligible for benefits”
impermissibly retroactive); see also Ibrahim, 208 F.3d at 1036
(finding statute not retroactive where it did not “impose new or
additional liabilities, but instead require[d] collection of a fee
that was always due”) (citation omitted).

Laws with those effects are just what Landgraf found
impermissibly retroactive. See 511 U.S. at 253–254 (“Section
102 significantly expands the monetary relief potentially
available to plaintiffs who would have been entitled to backpay
under prior law * * * [and] allows monetary relief for some
forms of workplace discrimination that would not previously
have justified any relief under Title VII.”). By making an
operator’s loss more likely for past events, the regulations
eroded vested legal rights and defenses.

Those regulations bear no resemblance to the Listings at
issue here. The new Listings alter one aspect of a multi-step
disability assessment process through which Cox seeks
 21
benefits, as part of the Administration’s regular updating of
medical criteria to determine disability. See Revised Medical
Criteria for Determination of Disability, Musculoskeletal
System and Related Criteria, 66 Fed. Reg. at 58,010 (Listings
revisions “reflect advances in medical knowledge, treatment,
and methods of evaluating” impairments). Their application to
Cox’s claim does not affect her legal obligations or economic
liabilities in any way, nor does it impose new consequences for
her past conduct. See Combs, 459 F.3d at 655 (Gilman, J.,
concurring) (distinguishing National Mining Association by
observing that “the change in the administrative regulations did
not impose any kind of liability on” the claimant) (citing
Landgraf, 511 U.S. at 282). Indeed, it may not even affect
Cox’s ultimate disability determination under the Act: Cox
could still prove her disability at steps four and five, because
the Listings are just a shortcut to proving disability.

***

For all of those reasons, application of the 2017 Listings
to Cox’s claim was not impermissibly retroactive. We
therefore do not consider Cox’s objections to the scope of the
district court’s remedial order.

IV

We reverse the district court’s holding that the
Administration permissibly discounted the evidence from
Cox’s treating physician, and order the case remanded to the
agency for further consideration.

The treating physician rule provides that, in adjudicating
Social Security claims, “[a] treating physician’s report is
‘binding on the fact-finder unless contradicted by substantial
evidence[,]’” and so an ALJ cannot “reject[] the opinion of a
 22
treating physician” without a reasonable explanation. Butler,
353 F.3d at 1003 (alteration in original) (quoting Williams, 997
F.2d at 1498). That is because a treating physician has “great
familiarity” with a claimant’s medical condition. Poulin v.
Bowen, 817 F.2d 865, 873 (D.C. Cir. 1987). The
Commissioner of the Social Security Administration has
formally adopted this doctrine, Black & Decker Disability Plan
v. Nord, 538 U.S. 822, 829 (2003), recognizing that a treating
physician is the most likely “to provide a detailed, longitudinal
picture” of a claimant’s impairments, and “may bring a unique
perspective to the medical evidence that cannot be obtained
from the objective medical findings alone or from reports of
individual examinations[.]” 20 C.F.R. § 416.927(c)(2).

The Administration’s regulations accordingly direct ALJs
to give special consideration to the medical opinion of a
claimant’s treating physician. See 20 C.F.R. § 404.1527. They
explicitly provide that, “[i]f we find that a treating source’s
medical opinion on the issue(s) of the nature and severity of
your impairment(s) is well-supported by medically acceptable
clinical and laboratory diagnostic techniques” and the doctor’s
evidence is “not inconsistent with the other substantial
evidence in your case record, we will give it controlling
weight.” Id. § 416.927(c)(2) (emphasis added). Correlatively,
an ALJ cannot afford any lesser weight to a treating physician’s
opinions without satisfactorily explaining why. See id.
§ 404.1527(c)(2) (“We will always give good reasons in our
notice of determination or decision for the weight we give your
treating source’s medical opinion.”).

The ALJ here failed to adhere to those standards. The ALJ
only afforded Dr. Hawthorne’s medical judgment “partial
weight” when determining Cox’s residual functional capacity,
yet failed to reasonably explain why he discounted her opinion,
or even to acknowledge that she was Cox’s treating physician.
 23
See J.A. 123. Instead, the ALJ focused only on isolated
portions of her testimony, rather than considering it as a whole
and comprehensive assessment of Cox’s condition.

To begin, the ALJ’s analysis of Dr. Hawthorne’s alleged
internal inconsistencies is flawed. The ALJ claimed that Dr.
Hawthorne’s “opinion is not entirely consistent with [her] own
mental status findings, which documented cooperative
behavior, goal-directed thoughts, average intelligence,
adequate insight and judgment, and intact memory.” J.A. 123.
As a result, the ALJ discounted Dr. Hawthorne’s findings
about Cox’s overall inability to function in a potential
workplace.

But the ALJ had to consider all of the evidence from Dr.
Hawthorne in the record. Dr. Hawthorne also wrote that Cox
has “[b]elow average” intelligence, at best “fair” insight that
was negatively affected by Cox’s cognitive capacity, and
“[m]ildly impaired” remote memory. J.A. 380. In addition, in
a September 2015 examination, Dr. Hawthorne reported that
Cox was “[a]nxious [and] [i]rritable[.]” J.A. 401. At that time,
Cox was having difficulty being around other people and felt
angry, with a low tolerance for frustration. J.A. 402. The ALJ
shortchanged that evidence.

The ALJ also found that Dr. Hawthorne’s opinion was
unreliable because her assessment of Cox did not match up
with some of the documented mental status findings. But in
deciding whether to credit Dr. Hawthorne as Cox’s treating
physician, the ALJ cannot pick and choose from Dr.
Hawthorne’s periodic evaluations. As Cox’s treating
physician, Dr. Hawthorne would naturally see “apparent
longitudinal inconsistencies in [Cox]’s mental health[.]” See
Estrella v. Berryhill, 925 F.3d 90, 97 (2d Cir. 2019). That
Cox’s affect varied over time is not a surprise. Nor are the
 24
natural ebbs and flows of Cox’s wellbeing over successive
months of treatment suggestive that Dr. Hawthorne’s opinion
can be brushed aside. As other circuits have recognized,
“[c]ycles of improvement and debilitating symptoms [of
mental illness] are a common occurrence[.]” Garrison v.
Colvin, 759 F.3d 995, 1017 (9th Cir. 2014); see Estrella, 925
F.3d at 97 (same).

In short, the ALJ erred in “cherry-pick[ing]” Dr.
Hawthorne’s mental status findings that supported his decision
and using them to discount her overall opinion as Cox’s
treating physician. See Estrella, 925 F.3d at 97 (“When viewed
alongside the evidence of the apparently cyclical nature of
Estrella’s depression, the ALJ’s two cherry-picked treatment
notes do not provide ‘good reasons’ for minimalizing [the
treating physician’s] opinion.”).

Next, the ALJ determined that Dr. Hawthorne’s opinion
was inconsistent with quantitative mental health scores that she
gave to Cox during treatment. J.A. 123. That, too, was not
enough to justify discounting Dr. Hawthorne’s uniquely expert
opinion. After all, the ALJ elsewhere considered those same
scores and explicitly found them to be consistent with the
ALJ’s own understanding of Cox’s “cognitive and intellectual
functioning deficits” and evidence “showing she exhibits
occasional tearfulness, and anxious and depressed moods.”
J.A. 124. The ALJ also acknowledged that Dr. Hawthorne’s
opinion was “mostly consistent with the medical evidence”
showing “cognitive and intellectual functioning deficits” and
“depression and anxiety[.]” J.A. 123. The scores cannot be (1)
consistent with the ALJ’s understanding of certain evidence,
(2) drawn from Dr. Hawthorne’s qualitative opinions, with
which the ALJ agreed, and yet still (3) evidence of Dr.
Hawthorne’s internal inconsistencies.
 25
Finally, the ALJ’s explanation for discrediting Dr.
Hawthorne because of inconsistencies with other record
evidence fell short. The ALJ noted only that “Dr. Hawthorne’s
opinion is also not consistent with * * * the mental status
examinations of other medical practitioners[.]” J.A. 123. In
this single line, though, the ALJ failed to explain how Dr.
Hawthorne’s opinion conflicts with other practitioners, let
alone why the other practitioners should be credited over Dr.
Hawthorne.

The treating physician rule requires more. As we have
said before, it is straightforward legal error when “the ALJ
offer[s] little more than [a] bare statement,” and “[t]he ALJ’s
passing references to the other medical opinions are
insufficient to override the substantial weight due [the treating
physician’s] opinion.” Butler, 353 F.3d at 1003; see also, e.g.,
Jones, 647 F.3d at 355 (“[T]he ALJ did not, as required by the
treating physician rule, explain his reasons for rejecting [the
treating physician’s] opinion.”); Simms v. Sullivan, 877 F.2d
1047, 1052 (D.C. Cir. 1989) (“[T]he ALJ, however, offered no
reason for crediting the consulting physicians over [the treating
physician], who had examined appellant regularly since
1978.”).

The Commissioner counters that the ALJ discussed other
mental status examiners “throughout the decision.”
Commissioner Opening Br. 53. But any such
“acknowledgment of contrary evidence[,]” let alone in such an
implicit way, treats the treating physician’s opinion as just
another piece of evidence in the mix, rather than affording it
the weighty deference it is due. See Butler, 353 F.3d at 1003.

For that reason, we reverse and remand with instructions
to the district court to remand the matter to the Administration
to reconsider Cox’s claim while either according controlling
 26
deference to Dr. Hawthorne’s opinion or offering a
substantively reasonable explanation for not doing so.

V

Cox separately argues that the Administration violated the
Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq.,
in adopting the 2017 Listings by failing to comply with notice-
and-comment requirements and making an arbitrary and
capricious decision.

Because the district court has not yet addressed Cox’s
APA claims, we leave them for the district court to address as
part of its proceedings on remand. See Cox II, 2022 WL
178953, at *9; Shawnee Tribe v. Mnuchin, 984 F.3d 94, 101
(D.C. Cir. 2021) (leaving for the district court to consider the
merits of an APA challenge in the first instance).

In addition, Cox filed a motion to supplement the record
on appeal with certifications of her school records. Appellant’s
Opposed Mot. Add Evid., Cox v. Kijakazi, No. 22-5050 (D.C.
Cir. June 14, 2022). The Administration opposed the motion.
See Acting Comm’r’s Opp. Appellant’s Mot. Add Evid., Cox,
No. 22-5050 (D.C. Cir. June 24, 2022). We leave that matter,
too, to be addressed by the district court in the first instance.

*****

Although the 2017 Listings are not retroactive as applied
to Cox’s still-pending claim, the ALJ failed to properly apply
the treating physician rule. We leave for the district court to
address on remand Cox’s APA challenges and her motion to
supplement the record on appeal. For the foregoing reasons,
 27
we reverse the district court’s decision and remand for further
proceedings consistent with this opinion.

So ordered.