concurring in part and dissenting in part.
I concur in the result of the plurality’s opinion for the claimed disability period post-October 25, 1999. However, I respectfully dissent from the denial of plaintiffs claim for disability benefits for the period of May 30, 1996, through October 25, 1999. Regarding this portion of plaintiffs claim arising prior to the repeal of Listing 9.09, I would remand for a new hearing with instructions to apply 9.09 to the closed period.
I.
Title 42 U.S.C. § 405(a) provides the Commissioner of Social Security (“the Commissioner”) with the authority to make reasonable rules and regulations that are consistent with the provisions of the U.S. Social Security Act. However, as the Supreme Court cautioned in Bowen v. Georgetown Hospital, 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988), § 405(a) “contain[s] no express authorization of retroactive rulemaking[,]” id. at 213, 109 S.Ct. 468. Although the parties recognize the precedential effect of Bowen, they disagree on what constitutes retroactive rulemak-ing. The Commissioner contends that application of the rule change to Combs’ claims does not have an impermissible “retroactive effect” because it does not impair any of her substantive or vested rights. The Commissioner argues that the regulation repeal is purely procedural and, therefore, does not affect plaintiffs substantive rights. I disagree.
In Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483 (1994), the Supreme Court addressed the issue of retro-activity with respect to statutes. There, the Court adopted a presumption against retroactivity because prospectively “accords with widely held intuitions about how statutes ordinarily operate” and “will generally coincide with legislative and public expectations.” Id. at 272, 114 S.Ct. 1483. The Court noted, however, that exceptions exist to the general rule favoring prospectively. As a result, to analyze ret-roactivity, the Court set forth the following framework: (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 *658clearly intended such a retroactive effect, overcoming the presumption of prospectively.1 Id. at 280, 114 S.Ct. 1483.
The second step of the Landgraf analysis requires a determination of whether application of the Revised Medical Criteria would have “retroactive” effect. 511 U.S. at 280, 114 S.Ct. 1483; see Portlock v. Barnhart, 208 F.Supp.2d 451, 461 (D.Del. 2002) (“The starting point for the court’s analysis is to determine whether applying the revised regulations in .the manner urged by the SSA in SSR 00-3p would constitute a retroactive application of a rule.”). Black’s Law Dictionary defines the term “retroactive” as that which extends a statute or regulation “in scope or effect to matters that have occurred in the past.” Black’s Law Dictionary 1343 (8th ed.2004). A regulation therefore has “retroactive effect” if it “impair[s] the rights the party had when he acted, increased] a party’s liability for past conduct or impose[s] new duties with respect to transactions already completed.” Landgraf, 511 U.S. at 280,' 114 S.Ct. 1483. See also Femandez-Vargas v. Gonzales, - U.S. -, ---, 126 S.Ct. 2422, 2427-28, 165 L.Ed.2d 323(2006).
In this case, several courts have agreed that application of the Revised Medical Criteria to a claimant with a claim pending when Listing 9.09 was deleted would have a “retroactive effect.” Nash v. Apfel, 2000 WL 710491 (10th Cir. June 1, 2000) (unpublished), 2000 U.S.App. LEXIS 12030, **5-6; see, e.g., Portlock, 208 F.Supp.2d at 461 (“[T]he application of the revised listings to [claimant’s] claim would constitute a retroactive application of the rule.”); Kokal v. Massanari, 163 F.Supp.2d 1122, 1131 (N.D.Cal.2001) (holding new listing substantively alters a claimant’s rights); Cherry v. Barnhart, 327 F.Supp.2d 1347, 1359 (N.D.Okla.2004) (noting deletion of Listing 9.09 “clearly alters the standard for evaluating disability claims”), aff'd, 125 Fed.Appx. 913 (10th Cir.2005) (unpublished).2 The logic of the forgoing cases is sound; indeed, the administrative record reflects that Combs likely meets the requirements of Listing 9.09, yet does not meet the disability parameters outlined by the Revised Medical Criteria. Cf. Landgraf, 511 U.S. at 280, 114 S.Ct. 1483 (noting retroactive effect arises when statute or regulation “impair[s] rights possessed when [claimant] acted ... and impose[s] new duties with respect to transactions already completed”). Thus, “Plaintiffs rights would be substantively altered if the revision to 20 C.F.R. pt. 404, subpt. P, app. 1 was deemed applicable ..., because the revised regulation would raise the bar on proof of disability based on obesity.” Kokal, 163 F.Supp.2d at 1131. Accordingly, application of the Revised Medical Criteria to Combs would have a “retroactive effect.”
The Commissioner argues that “[t]he agency’s rules here are akin to procedural rules that the Court has previously found not to be retroactive.” Burdens of proof, *659however, are substantive law, not procedural rules. Dick v. New York Life Ins. Co., 359 U.S. 437, 446, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959) (citation omitted); Blue Diamond Coal Co. v. United Mine Workers of Am., 436 F.2d 551, 563 (6th Cir.1970) (observing that “where the burden of proof lies is a matter of substantive law” (citing Cent. Vt. Ry. Co. v. White, 238 U.S. 507, 511-12, 35 S.Ct. 865, 59 L.Ed. 1433 (1915))).
Moreover, other courts have previously rejected similar arguments from the Commissioner. The Cherry court, for example, noted that “[t]he Supreme Court emphasized in Landgraf that the presumption against retroactivity is not restricted to cases involving contractual or property rights or ‘vested rights.’ ” 327 F.Supp.2d at 1359 (citing Landgraf, 511 U.S. at 275 n. 29, 114 S.Ct. 1483). Additionally, the Landgraf Court expressly noted, contrary to the Commissioner’s arguments, that ret-roactivity concerns may arise in the context of so-called “procedural rules.” Landgraf, 511 U.S. at 275 n. 29, 114 S.Ct. 1483; accord Ibrahim v. District of Columbia, 208 F.3d 1032, 1036 (D.C.Cir.2000) (observing 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 even if designated as “procedural” by the Commissioner). Accordingly, I conclude that the “procedural” label assigned to the Revised Medical Criteria by the Commissioner is meaningless.
II.
Next, the parties dispute the date upon which retroactivity should be determined. Combs argues that whether the repeal of Listing 9.09 is retroactive should be measured from November 4, 1996, the date that Combs filed her application for benefits. On the other hand, the Commissioner asserts, and the plurality agrees, that retro-activity should be determined by reference to the date of the adjudication of Combs’ claim for benefits; i.e., January or February 2003.3 I disagree and would hold that retroactivity should be determined by a third date — October 25, 1999 — the date upon which the regulation change became effective.
In my view, because a final determination of disability has never been made in this case due to the numerous appeals and convoluted procedural history, I would remand for a new hearing. For purposes of the hearing, I would afford Combs the benefit of Listing 9.09 for the claimed disability period of May 30, 1996, until the effective date of its repeal, October 25, 1999. In regard to the claimed disability period post-October 25, 1999, I would affirm the denial of disability benefits on the basis that the ALJ’s findings of fact for the period after the effective date of the repeal were supported by substantial evidence. 42 U.S.C. § 405(g); Longworth v. Comm’r of Soc. Sec. Admin., 402 F.3d 591, 595 (6th Cir.2005).
At oral argument, the Commissioner argued that bifurcating plaintiffs disability claims into the periods of pre- and post-regulation repeal would be unduly burdensome and may violate 42 U.S.C. § 423(f) of the Act. I disagree with both propositions. First, because retroactive rulemaking is prohibited by law, the Commissioner is not permitted to impose rules retroactively *660simply as a matter of convenience. See Bowen, 488 U.S. at 213, 109 S.Ct. 468 (“Deference to what appears to be nothing more than an agency’s convenient litigating position would be entirely inappropriate.”). Regardless of the Commissioner’s assertion of an increased administrative burden, it is axiomatic that the Commissioner must apply new regulations prospectively, only. Id. (holding that § 405(a) specifically “contain[s] no express authorization of retroactive rulemaking”). If such action leads to bifurcation of claims, then bifurcation is required by the law.
As to the second argument, the text of 42 U.S.C. § 423 does not address the date that retroactivity should be determined. Rather, § 423(f) provides that a “recipient of benefits” may not have benefits terminated unless substantial evidence demonstrates a change in the medical condition or in the individual’s ability to engage in substantial, gainful employment:
A recipient of benefits under this title [42 U.S.C. §§ 401-434] or title XVIII [42 U.S.C. §§ 1395-1395hhh] based on the disability of any individual may be determined not to be entitled to such benefits on the basis of a finding that the physical or mental impairment on the basis of which such benefits are provided has ceased, does not exist, or is not disabling only if such finding is supported by -
(1) substantial evidence which demonstrates that -
(A) there has been any medical improvement in the individual’s impairment or combination of impairments (other than medical improvement which is not related to the individual’s ability to work), and
(B) the individual is now able to engage in substantial gainful activity; or
(2) substantial evidence which -
(A) consists of new medical evidence and a new assessment of the individual’s residual functional capacity, and demonstrates that -
(i) although the individual has not improved medically, he or she is nonetheless a beneficiary of advances in medical or vocational therapy or technology (related to the individual’s ability to work), and
(ii) the individual is now able to engage in substantial gainful activity, or
(B) demonstrates that -
(i) although the individual has not improved medically, he or she has undergone vocational therapy (related to the individual’s ability to work), and
(ii) the individual is now able to engage in substantial gainful activity; or
(3) substantial evidence which demonstrates that, as determined on the basis of new or improved diagnostic techniques or evaluations, the individual’s impairment or combination of impairments is not as disabling as it was considered to be at the time of the most recent prior decision that he or she was under a disability or continued to be under a disability, and that therefore the individual is able to engage in substantial gainful activity; or
(4) substantial evidence (which may be evidence on the record at the time any prior determination of the entitlement to benefits based on disability was made, or newly obtained evidence which relates to that determination) which demonstrates that a prior determination was in error.
42 U.S.C. § 423(f) (emphasis added).
In the present case, this statutory provision is not applicable because, as a result of numerous appeals, there has not been a final determination and Combs has not received benefits. By its terms, the plain language of § 423(f) does not apply to Combs’ pending claim for benefits. See *661Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000) (“when the statute’s language is plain, the sole function of the courts — at least where the disposition required by the text is not absurd — is to enforce it according to its terms.”). Because Combs has never received benefits, she is not a “recipient of benefits.” Rather, she is, and always has been, a mere claimant for benefits for whom 42 U.S.C. § 423(f) is not applicable.
20 C.F.R. 404.989, which defines good cause for the reopening of a decision, is also inapplicable:
We will not find good cause to reopen your case if the only reason for reopening is a change of legal interpretation or administrative ruling upon which the determination or decision was made.
Again, however, because there has not been a final disposition of Combs’ disability claim, the reopening of a prior decision is not at issue. The same is true with Social Security Ruling, SSR 02-10p, regarding “periodic continuing disability review” of previously awarded disability benefits.
In summary, the parties have poorly postured this case as an all or nothing proposition. To avoid the prohibition against retroactive rulemaking, Combs asks this court to hold that the determinative date for purposes of retroactivity is the date on which the claim is filed, while defendant argues that this court should base any retroactivity analysis on the date of adjudication. I disagree with both positions and would hold that the operative date for purposes of retroactivity is the effective date that the regulation was changed.
Although disability insurance benefits are determined “for each month [claimed] beginning with the first month after his waiting period, ...” 42 U.S.C. § 423(a)(D) (emphasis added), the ALJ failed to apply the conclusive presumptions of obesity disability specified by Listing 9.09 for plaintiffs month-by-month claims for the period of May 30, 1996, to October 25, 1999.4 By instead applying the Revised Medical Criteria to Combs’ disability claim, the ALJ engaged in the application of retroactive rulemaking. Accordingly, I would remand for a new hearing and a determination of whether plaintiff is entitled to disability benefits for the closed period of May 30, 1996, through October 25, 1999. With regard to the denial of benefits thereafter, I would affirm.
III.
For these reasons, I respectfully concur in part and dissent in part.
. Although Landgraf addressed the retroactive application of statutes, courts have applied its reasoning to the issue of retroactivity of regulations. See Covey v. Hollydale Mobilehome Estates, 116 F.3d 830, 838 (9th Cir.1997); see also Little Co. of Mary Hosp. & Health Care Ctrs. v. Shalala, 994 F.Supp. 950, 960 (N.D.Ill.1998) (noting Landgraf "supplies the test to decide when a statute (or by natural extension a regulation) operates retroactively”).
. See also, e.g., Ingram v. Barnhart, 303 F.3d 890, 894—95 (8th Cir.2002); Branson v. Barnhart, 2005 WL 3557836 (E.D.Pa. Dec. 29, 2005), 2005 U.S. Dist. LEXIS 36945, **8-9; Rogers v. Barnhart, 2003 WL 22428627 (E.D.Pa. Sept. 16, 2003), 2003 U.S. Dist. LEXIS 18152, *8 n. 3.
. The most recent adjudication commenced in January 2003 and concluded with a decision rendered by the administrative law judge on February 21, 2003. It is not clear whether the “date of adjudication” argued by defendant and accepted by the plurality is the date the adjudication commenced or concluded. Although it makes no difference in the present case, it may be outcome determinative in other cases.
. Fluctuation in weight is one of the most fluid of all physical conditions. Combs may have been disabled for some, but not all, of the months claimed. Apparently, the dissent would order a determination of her claimed disability on the date of her application, only.