Mark Hagans v. Commissioner Social Security , 694 F.3d 287 ( 2012 )


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  •                                           PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    No. 11-2526
    _____________
    MARK W. HAGANS,
    Appellant
    v.
    COMMISSIONER OF SOCIAL SECURITY
    _______________
    On Appeal from the United States District Court
    for the District of New Jersey
    (No. 2-10-cv-01951)
    District Judge: Honorable Faith S. Hochberg
    _______________
    Argued November 17, 2011
    _______________
    Before: FUENTES and CHAGARES, Circuit Judges, and
    POGUE, Chief Judge. 1
    (Opinion filed: September 14, 2012)
    Joel M. Solow, Esq. (Argued)
    Freeman & Bass
    24 Commerce Street
    7th Floor
    Newark, NJ 07102
    Counsel for Appellant
    1
    The Honorable Donald C. Pogue, Chief Judge, United
    States Court of International Trade, sitting by designation.
    1
    Joanne Jackson, Esq.
    Sathya Oum, Esq. (Argued)
    Social Security Administration
    Office of General Counsel
    Region II -3904
    26 Federal Plaza
    New York, NY 10278
    Counsel for Appellee
    _______________
    OPINION
    _______________
    CHAGARES, Circuit Judge.
    Mark Hagans appeals the cessation of his Social
    Security disability insurance benefits following a
    determination by the Social Security Administration (“SSA”)
    that he was no longer disabled. Hagans argues the District
    Court erred by reviewing his disability status as of September
    1, 2004 — the day on which, according to the SSA, Hagans’s
    disability ceased. This contention requires us to decide what
    level of deference, if any, we should afford the SSA’s
    Acquiescence Ruling interpreting the cessation provision of
    the Social Security Act, 
    42 U.S.C. § 423
    (f), as referring to the
    time of the SSA’s initial disability determination. Hagans
    further argues that substantial evidence does not support the
    SSA’s conclusion that he was not fully disabled as of
    September 1, 2004. For the following reasons, we will
    affirm.
    I.
    Until January 2003, Mark Hagans worked as a security
    guard for a federal agency and as a sanitation worker for the
    city of Newark. That month, however, when he was 44 years
    old, Hagans began suffering from chest pains. He required
    immediate open-heart surgery to repair a dissecting aortic
    aneurysm, a potentially life-threatening condition that occurs
    when a tear in the aorta’s inner layer allows blood to enter the
    2
    middle layer. Hagans was hospitalized for the surgery and
    recovery during intermittent periods between January 29,
    2003, and February 28, 2003. He then spent approximately
    three months in a rehabilitation center, where he underwent
    physical and speech therapy. He left this facility sometime in
    April or May of 2003.
    In addition to his heart ailment, Hagans claims he has
    underlying medical problems relating to his cerebrovascular
    and respiratory systems, as well as hypertension and
    dysphagia (difficulty in swallowing). Hagans also complains
    of other issues, such as insomnia and back pain, which he
    alleges affect his ability to stand, sit, and lift. He has also
    been diagnosed with depression.
    Hagans’s initial application for disability benefits was
    granted and he began receiving benefits as of January 30,
    2003. On September 21, 2004, however, pursuant to an
    updated Residual Function Capacity (“RFC”) assessment
    showing Hagans’s condition had improved, the SSA
    determined that Hagans was no longer eligible for benefits
    because his disability had terminated on September 1, 2004.
    Hagans’s appeal to a Disability Hearing Officer was denied.
    Hagans continued to pursue an appeal and received a hearing
    before an Administrative Law Judge (“ALJ”) in September
    2008, at which he was unrepresented by counsel. 2
    The record reflects that Hagans received a great deal of
    medical care between his surgery in January 2003 and the
    termination of his benefits in September 2004. The ALJ
    considered several evaluations of Hagans’s condition, most of
    which were completed in mid-2004. For instance, the ALJ
    reviewed an August 31, 2004, report from Dr. Ramesh Patel,
    Hagans’s treating physician. Dr. Patel diagnosed Hagans
    with obesity, post-surgery illness, hypertension, hearing
    problems, possible arthritis of the neck, and shortness of
    breath. This report showed that an EKG of Hagans’s heart
    was normal and a chest X-ray indicated clear lungs and no
    2
    Hagans’s hearing had originally been scheduled for May
    14, 2008, but it was adjourned so that Hagans could obtain
    counsel. He again appeared unrepresented on the rescheduled
    date, and the hearing proceeded without counsel.
    3
    sign of heart failure. Dr. Patel indicated Hagans’s range of
    motion was limited, but did not opine on his ability to
    perform work-related activities. 3 The ALJ also considered
    the evaluation of Dr. Burton Gillette, the SSA’s staff
    physician, which was performed on September 15, 2004. Dr.
    Gillette’s evaluation included an RFC assessment which
    indicated that Hagans could not stand or walk for more than
    four hours per day, but could sit for about six hours during an
    eight-hour day and had improved lifting abilities. Further, the
    ALJ considered the evaluation of Ernest Uzondu, a disability
    adjudicator, conducted on the same day as Dr. Gillette’s RFC
    assessment. Uzondu determined that Hagans could not
    perform his past relevant work, but that he was able to
    perform other work. Finally, the ALJ considered an internal
    medicine evaluation from Dr. David Tiersten conducted on
    March 16, 2006. In this 2006 evaluation, Dr. Tiersten
    diagnosed Hagans with obesity, post-surgery illness, chest
    pain, back pain, leg pain, and hypertension, but found that
    Hagans did not have significant limitations to prevent him
    from working.
    Although Hagans claims he is limited to standing for
    4-5 minutes, sitting for 30 minutes, walking only at a slow
    pace, and lifting no more than ten pounds, the record reflects
    disagreement among the doctors about Hagans’s abilities. A
    vocational expert testified that there were jobs available that
    someone with Hagans’s infirmities could perform, such as
    ticket seller, assembler of small products, and garment sorter.
    At the time of the ALJ hearing, Hagans represented that he
    spent his time watching television, helping at church,
    napping, and visiting a nearby park. He claims he requires
    assistance shaving and showering. As of September 1, 2004,
    he had not engaged in any substantial gainful activity
    following his heart surgery.
    3
    Approximately two years later, Dr. Patel examined Hagans
    and concluded he was “totally and permanently disabled.”
    Soc. Sec. R. 230–31. Dr. Patel reiterated that Hagans
    suffered from the same ailments but did not explain why his
    assessment had become so dire during the two intervening
    years.
    4
    On February 26, 2009, the ALJ issued a decision
    finding that Hagans’s disability had ceased on September 1,
    2004. Specifically, the ALJ found that Hagans’s condition
    had improved and he was capable of engaging in substantial
    gainful activity, although he could not perform his past
    relevant work. On May 21, 2009, the Appeals Council denied
    review, which rendered the ALJ’s opinion the final decision
    of the SSA.
    Hagans then filed the instant action. On April 8, 2011,
    the District Judge affirmed the SSA’s decision that Hagans’s
    eligibility for disability benefits ended on September 1, 2004.
    Hagans has continued to receive benefits pending the
    outcome of this appeal. Hagans also filed a new application
    for disability insurance benefits on January 20, 2010. 4
    II.
    The District Court had jurisdiction to review the final
    decision of the Commissioner of Social Security under 
    42 U.S.C. § 405
    (g). We have jurisdiction over this appeal
    pursuant to 
    28 U.S.C. § 1291
    .
    We exercise plenary review over all legal issues.
    Schaudeck v. Comm’r of Soc. Sec. Admin., 
    181 F.3d 429
    ,
    431 (3d Cir. 1999). We review an ALJ’s decision under the
    same standard of review as the District Court, to determine
    whether there is substantial evidence on the record to support
    the ALJ’s decision. See 
    42 U.S.C. § 405
    (g); Plummer v.
    Apfel, 
    186 F.3d 422
    , 427 (3d Cir. 1999). Substantial
    evidence has been defined as “more than a mere scintilla”; it
    means “such relevant evidence as a reasonable mind might
    accept as adequate.” Plummer, 
    186 F.3d at 427
     (quotations
    marks omitted). “Where the ALJ’s findings of fact are
    supported by substantial evidence, we are bound by those
    findings, even if we would have decided the factual inquiry
    differently.” Fargnoli v. Massanari, 
    247 F.3d 34
    , 38 (3d Cir.
    2001).
    III.
    4
    This application was originally dismissed based upon a
    finding of res judicata, but its current status is unclear.
    5
    We begin with the issue to which we will devote the
    bulk of this opinion: Hagans’s assertion that the District
    Court erred by finding that the relevant date for determining
    whether he continued to be disabled was the date on which
    the SSA asserts that his disability had ceased — September 1,
    2004 — rather than the date of the ALJ’s hearing or the date
    of the ALJ’s ruling (September 22, 2008 or February 26,
    2009, respectively). Use of one of these later dates would
    bolster Hagans’s claim for disability benefits because he had
    advanced into a different age category by the time of the
    ALJ’s hearing. 5 The SSA contends that review of Hagans’s
    disability should be confined to the date on which the SSA
    first found that Hagans was no longer disabled — that is,
    September 1, 2004. 6
    The provision we must interpret to resolve this dispute
    is 
    42 U.S.C. § 423
    (f), which is entitled “Standard of review
    for termination of disability benefits.” This section provides:
    A recipient of benefits . . . may be determined
    not to be entitled to such benefits on the basis of
    a finding that the physical or mental impairment
    5
    Specifically, in September 2004 Hagans was in his mid-40s,
    which is considered a “younger individual” according to the
    Social Security regulations. 20 C.F.R. Part 404, Subpart P,
    App. 2. At the time of the ALJ hearing, however, he was 50
    years old, which placed him in the “closely approaching
    advanced age” category. 
    Id.
    6
    We note that the SSA did not issue its decision finding that
    Hagans was disabled as of September 1, 2004 until three
    weeks later, on September 21, 2004. It would be a rare case
    in which this three-week period had some impact on the
    analysis of whether a benefits recipient remained disabled,
    and, in this case, it has none. We will thus use the date on
    which Hagans’s disability purportedly ceased — September
    1, 2004 — for the purposes of our analysis. We need not
    resolve what should happen when there is an analytically
    relevant distinction between the date of the SSA’s decision
    and the date of cessation. To the extent that we refer to “the
    date on which the SSA found that Hagans’s disability had
    ceased,” we intend that phrase to mean September 1, 2004.
    6
    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  .   .    .
    Any determination under this section shall be
    made on the basis of all the evidence available
    in the individual’s case file, including new
    evidence concerning the individual’s prior or
    current condition which is presented by the
    individual or secured by the Commissioner of
    Social Security.
    
    Id.
     (emphasis added).
    In support of its position, the SSA asserts that we
    should follow the Acquiescence Ruling it issued in 1992,
    which interpreted § 423(f) as requiring the evaluation of a
    benefits recipient’s disability status as of the time that the
    SSA first determined that cessation of benefits was proper.
    Specifically, the ruling stated:
    SSA interprets the term “current,” as used in the
    statutory and regulatory language concerning
    termination of disability benefits, to relate to the
    time of the cessation under consideration in the
    initial determination of cessation. In making an
    initial determination that a claimant’s disability
    has ceased, SSA considers the claimant’s
    condition at the time SSA is making the initial
    determination. In deciding the appeal of that
    cessation determination, the Secretary considers
    7
    what the claimant’s condition was at the time of
    the cessation determination, not the claimant’s
    condition at the time of the disability
    hearing/reconsideration determination, ALJ
    decision or Appeals Council decision.
    However, if the evidence indicates that the
    claimant’s condition may have again become
    disabling subsequent to the cessation of his or
    her disability or that he or she has a new
    impairment, the adjudicator solicits a new
    application.
    Social Security Acquiescence Ruling 92-2(6), 
    57 Fed. Reg. 9262
     (Mar. 17, 1992) (hereinafter “AR 92-2(6)”). We must
    decide how, if at all, this ruling should affect our analysis. 7
    A.
    We begin with the Supreme Court’s watershed
    decision in Chevron U.S.A., Inc. v. Natural Resources
    Defense Council, Inc., 
    467 U.S. 837
     (1984), which
    dramatically increased the level of deference courts must
    generally give to administrative agencies’ interpretations of
    statutes. Chevron requires courts to conduct a two-step
    inquiry. Under the first step, “[w]hen a court reviews an
    agency’s construction of the statute which it administers,” it
    must ask “whether Congress has directly spoken to the
    precise question at issue.” 
    Id. at 842
    . If Congress has
    resolved the question, the clear intent of Congress binds both
    the agency and the court. Id.; see also Reese Bros., Inc. v.
    United States, 
    447 F.3d 229
    , 238 (3d Cir. 2006) (“Under
    Chevron, [if] the congressional intent is clear . . . , the inquiry
    7
    Neither party addressed this issue in its brief. We therefore
    requested supplemental letter briefs from both parties
    following oral argument. We were particularly interested in
    learning whether the SSA had employed the policy outlined
    in AR 92-2(6) prior to the issuance of that ruling. The SSA’s
    letter brief cited no evidence indicating the existence of the
    policy prior to 1992. Accordingly, we must assume the
    policy was formulated contemporaneously with the issuance
    of the AR.
    8
    ends; the court and agency ‘must give effect to the
    unambiguously expressed intent of Congress.’” (quoting
    Chevron, 
    467 U.S. at
    843–44)). Under the second step, if
    “Congress has not directly addressed the precise question at
    issue,” because “the statute is silent or ambiguous with
    respect to the specific issue, the question for the court is
    whether the agency’s answer is based on a permissible
    construction of the statute.” Chevron, 
    467 U.S. at 843
    . The
    agency’s interpretation will prevail so long as “it is a
    reasonable interpretation of the statute — not necessarily the
    only possible interpretation, nor even the interpretation
    deemed most reasonable by the courts.” Entergy Corp. v.
    Riverkeeper, Inc., 
    556 U.S. 208
    , 218 (2009).
    This presumption of strong deference serves several
    goals. As the Court explained in Chevron, affording agencies
    significant discretion to interpret the law they administer
    recognizes the value of agency expertise and the
    comparatively limited experience of the judiciary where an
    interpretation requires specialized knowledge. 
    467 U.S. at 865
    . Moreover, the Chevron doctrine promotes national
    uniformity in regulatory policy, thereby enabling agencies to
    avoid the difficulty of enforcing different rules depending on
    the jurisdiction — a benefit that the SSA has cited as the
    primary reason for its issuance of Acquiescence Rulings. See
    Social Security Disability Insurance Program: Hearing
    Before the Senate Comm. on Finance, 98th Cong., 2d Sess.
    115 (Jan. 25, 1984) (statement of SSA Commissioner Martha
    A. McSteen) (testifying that the SSA’s “policy of
    nonacquiescence is essential to insure that the agency follows
    its statutory mandate to administer [the Social Security]
    program in a uniform and consistent manner”).
    Where Chevron deference is inappropriate, a court
    may instead apply a lesser degree of deference pursuant to
    Skidmore v. Swift & Co., 
    323 U.S. 134
     (1944). More will be
    said about the nature of a Skidmore analysis, but for now it
    suffices to note that Skidmore requires a court to assign a
    weight to an administrative judgment based on “the
    thoroughness evident in its consideration, the validity of its
    reasoning, its consistency with earlier and later
    9
    pronouncements, and all those factors which give it power to
    persuade, if lacking power to control.” 
    323 U.S. at 140
    . 8
    B.
    Regardless of whether we apply Chevron or Skidmore
    deference, our initial inquiry requires us to determine whether
    § 423(f) is ambiguous. We conduct this ambiguity analysis as
    8
    There is one other deference doctrine worthy of a brief
    mention. In Auer v. Robbins, 
    519 U.S. 452
    , 462 (1997), the
    Supreme Court considered the Secretary of Labor’s
    interpretation of a regulation (not a statutory provision)
    promulgated pursuant to the Fair Labor Standards Act.
    Despite the fact that the Secretary’s interpretation came “in
    the form of a legal brief,” the Court held it was nonetheless
    entitled to strong deference because it was not a “post hoc
    rationalization” and it represented the agency’s “fair and
    considered judgment.” 
    Id.
     The Court explained that
    deference was warranted because “requiring the Secretary to
    construe his own regulations narrowly would make little
    sense, since he is free to write the regulations as broadly as he
    wishes, subject only to the limits imposed by the statute.” 
    Id. at 463
    .
    The liberal standard for deference under Auer might
    arguably apply to the parallel regulation to § 423(f), 
    20 C.F.R. § 404.1594
     (which replaces the statutory phrase “now
    able to engage in substantial activity” with “currently able to
    engage in substantial activity”), were it not for the Supreme
    Court’s decision in Gonzales v. Oregon, 
    546 U.S. 243
     (2006).
    There, the Court declined to give strong deference to an
    interpretive memorandum by the Attorney General because
    the regulation reviewed in the memorandum used the same
    terminology as the original statute from which it was derived.
    The Court explained that this type of “parroting regulation”
    does not receive deference under Auer because “[a]n agency
    does not acquire special authority to interpret its own words
    when, instead of using its expertise and experience to
    formulate a regulation, it has elected merely to paraphrase the
    statutory language.” 
    Id.
     at 256–58. Given the similarity
    between the disputed terms occurring in the statute and the
    regulation, AR 92-2(6) cannot receive deference under Auer.
    10
    a matter of statutory interpretation which is necessarily
    antecedent to our deference inquiry because we need reach
    the deference question only if we find the statutory language
    is ambiguous. See Del. Dep’t of Natural Res. & Envtl.
    Control v. U.S. Army Corps of Eng’rs, 
    685 F.3d 259
    , 284 (3d
    Cir. 2012) (hereinafter “DDNR”) (suggesting a deference
    analysis need only be “resort[ed] to” when the statutory text
    is ambiguous). If we decide that the statute is unambiguous,
    we are bound to give effect to the words of Congress.
    Chevron, 
    467 U.S. at 843
    . 9
    Our goal when interpreting a statute is to effectuate
    Congress’s intent. Rosenberg v. XM Ventures, 
    274 F.3d 137
    ,
    141 (3d Cir. 2001). “Because we presume that Congress’
    intent is most clearly expressed in the text of the statute, we
    begin our analysis with an examination of the plain language
    of the relevant provision.” Reese Bros., 
    447 F.3d at 235
    . In
    trying to divine the intent of Congress, we should consider the
    entire scope of the relevant statute. See United States v.
    Tupone, 
    442 F.3d 145
    , 151 (3d Cir. 2006) (“The Supreme
    Court has stated consistently that the text of a statute must be
    considered in the larger context or structure of the statute in
    which it is found.”). When a statute is “complex and contains
    many interrelated provisions,” it may be “impossible to attach
    a plain meaning to provisions in isolation.” Cleary ex rel.
    Cleary v. Waldman, 
    167 F.3d 801
    , 807 (3d Cir. 1999)
    (holding that the Medicare statute meets this criteria and is
    therefore ambiguous).
    Two other courts have found that the terms “current”
    and “now” contained in § 423(f) are unambiguous. The first
    case to address whether a disability benefits recipient’s
    eligibility must be evaluated from the date of cessation or the
    time of the ALJ’s hearing was Difford v. Secretary of Health
    & Human Services, 
    910 F.2d 1316
     (6th Cir. 1990). There,
    the Court of Appeals for the Sixth Circuit held that the ALJ
    should adjudicate the claimant’s disabilities at the time of his
    9
    The fact that we are conducting an ambiguity analysis that is
    indistinguishable from the first step of Chevron should not be
    misconstrued as a decision to apply Chevron deference. As
    we have made clear above, we do not reach the deference
    question unless the statute is ambiguous.
    11
    or her hearing, such that if the claimant were found to be
    disabled at the time of the hearing — even if he was not
    disabled as of the cessation date — his benefits should not be
    terminated. The court placed special emphasis on the fact
    that § 423(f) requires an ALJ to review the recipient’s
    “current” status as of “now,” which it found to be a clear,
    unambiguous indication that Congress had intended the ALJ’s
    review to focus on the benefits recipient at the time of the
    ALJ’s hearing. Id. at 1320. 10
    The second case to find the terms “now” and “current”
    unambiguous was Aikens v. Shalala, 
    956 F. Supp. 14
    , 20
    (D.D.C. 1997). The district court adopted the Court of
    Appeals for the Sixth Circuit’s view and thus required an
    evaluation of the recipient contemporaneous with the ALJ’s
    hearing. The court explained:
    The plain meaning of the statute, the legislative
    history and the SSA’s own regulations compel
    [the Sixth Circuit’s construction of the words
    “now” and “current”]. Although the Secretary
    faults the Sixth Circuit for focusing on the plain
    meaning of the words “now” and “current,” it is
    an “elementary principle of statutory
    construction that ordinarily the plain meaning of
    statutory language controls, i.e., ‘words should
    be given their common and approved usage.’”
    
    Id.
     at 20–21 (quoting United Scenic Artists v. NLRB, 
    762 F.2d 1027
    , 1032 n.15 (D.C. Cir. 1985).
    Two years later, however, the Court of Appeals for the
    Seventh Circuit disagreed. In Johnson v. Apfel, 
    191 F.3d 770
    (7th Cir. 1999), the court held that § 423(f) was ambiguous
    10
    AR 92-2(6) was issued to clarify the SSA’s disagreement
    with Difford. The Court of Appeals for the Sixth Circuit had
    an opportunity to reconsider Difford after the issuance of AR
    92-2(6), but it elected not to do so in light of the factual
    differences between that case and Difford. See Henley v.
    Comm’r of Soc. Sec., 
    58 F.3d 210
     (6th Cir. 1995). Thus,
    Difford remains good law in the Sixth Circuit.
    12
    when its terminology was viewed in the context of the entire
    Social Security Act.         The court adopted the SSA’s
    interpretation of § 423(f), which, in contrast to the
    interpretation reached in Difford and Aikens, asserted that
    “by using the terms ‘now’ and ‘current,’ Congress was
    merely distinguishing between the time when the agency
    originally made a determination that the claimant was
    disabled and the time the agency determined whether
    disability ceased.” Id. at 775.
    We are in accord with the Court of Appeals for the
    Seventh Circuit in viewing the terms “now” and “current” as
    susceptible to more than one reasonable explanation when
    viewed in context. In drafting a section about the cessation of
    benefits — benefits that were necessarily granted in some
    prior determination — it makes sense that the statutory
    drafters would have to distinguish between the unfavorable
    cessation decision and the earlier, favorable decision to grant
    benefits. The ambiguity in § 423(f) stems from its reliance on
    the use of the passive voice. The statute provides, “A
    recipient of benefits . . . may be determined not to be entitled
    to such benefits . . . .” The language thus lacks the necessary
    identifying factor: who is making the determination about
    entitlement to benefits? It would be logical to presume that it
    is the ALJ who makes the determination, given the ALJ’s role
    in holding a hearing and reviewing the evidence, but to avoid
    ambiguity the statute would need to have been drafted more
    clearly.
    Our consideration of a related, more specific provision
    of § 423 does not resolve this ambiguity.              Section
    423(d)(5)(B), which applies to both an initial determination of
    disability and a determination about whether such disability is
    ongoing, provides, in relevant part:
    In making any determination with respect to
    whether an individual . . . continues to be under
    a disability, the Commissioner of Social
    Security shall consider all evidence available in
    such individual’s case record, and shall develop
    a complete medical history of at least the
    preceding twelve months for any case in which
    a determination is made that the individual is
    13
    not under a disability.       In making any
    determination the Commissioner of Social
    Security shall make every reasonable effort to
    obtain from the individual’s treating physician
    (or other treating health care provider) all
    medical evidence . . . necessary in order
    to properly make such determination . . . .
    
    42 U.S.C. § 423
    (d)(5)(B). The term “Commissioner” is
    synonymous with the SSA and thus may be fairly understood
    to encompass all levels of review within the operation of the
    agency. It is true that the SSA’s decision is not final until
    after the ALJ hearing and any subsequent appeal occur.
    Nonetheless, the Commissioner begins review of any
    cessation case with an initial cessation determination.
    Because the use of the term “Commissioner” in
    § 423(d)(5)(B) — a provision which also applies to a
    cessation proceeding — refers to the agency broadly, rather
    than specifying the level of review within the agency, it does
    not unambiguously identify the ALJ as the person making a
    benefits eligibility determination during a cessation
    proceeding.
    For these reasons, we conclude that § 423(f) is
    ambiguous.
    C.
    Having determined that § 423(f) is ambiguous, we
    must now decide whether this is the type of case in which
    Chevron deference is proper, or whether Skidmore instead
    provides the appropriate framework for reviewing the SSA’s
    interpretation contained in AR 92-2(6). The Supreme Court
    issued a trilogy of opinions between 2000 and 2002 which
    guide our analysis.
    The first case in the trilogy is Christensen v. Harris
    County, 
    529 U.S. 576
     (2000), which involved an informal
    agency adjudication. 11 There, the Court considered whether
    11
    We recognize that the adjudication at issue in Christensen
    is different than the Acquiescence Ruling in this matter
    because, unlike an agency ruling, an adjudication is without
    14
    Chevron deference should be given to an opinion letter
    written by the Acting Administrator of the Department of
    Labor’s Wage and Hour Division. The Supreme Court first
    explained that “[i]nterpretations such as those in opinion
    letters — like interpretations contained in policy statements,
    agency manuals, and enforcement guidelines, all of which
    lack the force of law — do not warrant Chevron-style
    deference.” 
    Id. at 587
    . 12 The Court held that we must instead
    “general or particular applicability and future effect.” 
    5 U.S.C. § 551
    ; see also 33 Charles Alan Wright & Charles H.
    Koch, Federal Practice and Procedure § 8342 (1st ed. 2006)
    (explaining that a decision made through an informal
    advisory letter or opinion constitutes an adjudication, not a
    ruling, because these decisions “determine individual rights
    or duties”). Nonetheless, the similarities regarding the lack of
    notice-and-comment procedures between these two agency
    actions render Christensen a useful guidepost.
    12
    Even before the Supreme Court decided Christensen, we
    recognized that Chevron deference was not appropriate for all
    forms of agency interpretations. In Cleary, 
    167 F.3d 801
    , we
    considered policy memoranda and letters issued by the Health
    Care Financing Administration and the Department of Health
    and Human Services. We noted that determining the proper
    level of deference “becomes more complicated when the
    agency’s interpretation is contained in informal views or
    guidelines outside the course of notice and comment
    procedures.” 
    Id. at 807
    . In such circumstances, “[w]e have
    questioned what degree of deference, if any, to afford an
    agency’s views.” 
    Id.
     We then explained that Chevron had
    not overruled the Supreme Court’s longstanding rule of
    deference for informal agency interpretations as contained in
    Skidmore, 
    323 U.S. at 140
    . After applying Skidmore
    deference, we found the agency’s “policy conforms to the
    language of the statute, to its legislative history, and to the
    purpose for which it was enacted” and was therefore entitled
    to deference. Cleary, 
    167 F.3d at
    811–12.
    While Cleary remains good law, subsequent
    developments in the law have complicated our deference
    analysis.    In Cleary, we noted that informal agency
    interpretations “will receive some deference by the court if
    15
    give the agency’s interpretation “respect” pursuant to the
    Supreme Court’s decision in Skidmore.           
    Id.
     (quoting
    13
    Skidmore, 
    323 U.S. at 140
    ). The Christensen majority held
    that, upon weighing the Skidmore factors, the Department of
    Labor’s opinion letter was insufficiently persuasive and was
    therefore unworthy of deference.
    In United States v. Mead Corp., 
    533 U.S. 218
     (2001),
    the Court considered a tariff classification ruling by the
    United States Customs Service. 
    Id.
     at 224–25. The Court
    explained that Chevron was premised on the idea that
    Congress had explicitly or implicitly delegated authority to an
    agency to administer a statute, thereby empowering the
    agency to interpret the statute so long as its interpretation is
    consistent with the statutory language. 
    Id.
     at 226–27 (noting
    Chevron deference applies “when it appears that Congress
    delegated authority to the agency generally to make rules
    carrying the force of law, and that the agency interpretation
    claiming deference was promulgated in the exercise of that
    authority”). An express delegation occurred when Congress
    “‘explicitly left a gap for an agency to fill,’” rendering “any
    ensuing regulation . . . binding in the courts unless
    procedurally defective, arbitrary or capricious in substance, or
    manifestly contrary to the statute.” 
    Id. at 227
     (quoting
    Chevron, 
    467 U.S. at
    843–44). Deciding whether Congress
    implicitly delegated authority to the agency requires a court to
    consider “the agency’s generally conferred authority and
    other statutory circumstances that [indicate] Congress would
    expect the agency to be able to speak with the force of law
    when it addresses ambiguity in the statute or fills a space in
    the enacted law.” Id. at 229. The Court noted that “a very
    they are consistent with the plain language and purposes of
    the statute and if they are consistent with prior administrative
    views.” Id. at 808. However, as we will explain, we must
    now consider the additional (albeit similar) factors set forth in
    Barnhart v. Walton, 
    535 U.S. 212
    , 222 (2002).
    13
    We applied this rule in Madison v. Resources for Human
    Development, Inc., 
    233 F.3d 175
    , 186 (3d Cir. 2000),
    explaining that “[a]s to the persuasiveness of agency
    interpretive guidelines, we note our continued reliance on the
    framework laid out in Skidmore v. Swift.”
    16
    good indicator of delegation” would be “congressional
    authorizations to engage in the process of rulemaking or
    adjudication that produces regulations or rulings for which
    deference is claimed.” 
    Id.
     This is so because in general,
    when Congress provides “for a relatively formal
    administrative procedure . . . [that fosters] fairness and
    deliberation,” it makes sense to assume that “Congress
    contemplates administrative action with the effect of law.”
    
    Id. at 230
    . Nonetheless, the level of formality did not fully
    resolve the question because precedent showed that Chevron
    deference might also be appropriate “even when no such
    administrative formality was required and none was
    afforded.” 
    Id. at 231
    . Upon consideration of the lack of
    process and “any other circumstances reasonably suggesting
    that Congress ever thought of classification rulings as
    deserving [Chevron] deference,” the Court declined to give
    the tariff classification ruling Chevron deference. 
    Id.
     The
    Court remanded for a determination of whether Skidmore
    deference was appropriate instead.
    A year after Mead, the Supreme Court addressed
    deference to a decision made by the SSA in Barnhart v.
    Walton, 
    535 U.S. 212
     (2002). There, the Court considered a
    SSA regulation eventually adopted after notice-and-comment
    procedures, which related to a policy that the agency had
    initially adopted through less formal means — including a
    Social Security Ruling issued some 20 years prior. 
    Id. at 219
    .
    The Court disagreed with the recipient’s contention that this
    earlier ruling should not be worthy of deference and
    explained:
    [T]he fact that the Agency previously reached
    its interpretation through means less formal than
    “notice and comment” rulemaking, does not
    automatically deprive that interpretation of the
    judicial deference otherwise its due. . . . Mead
    pointed to instances in which the Court has
    applied Chevron deference to agency
    interpretations that did not emerge out of
    notice-and-comment rulemaking. It indicated
    that whether a court should give such deference
    depends in significant part upon the interpretive
    method used and the nature of the question at
    17
    issue.
    
    Id.
     at 221–22.
    The Court did not employ the “force of law”
    distinction enunciated in Mead, instead focusing its inquiry
    on Congress’s grant of authority, explicit or implied, as
    determined by analyzing whether the specific statutory
    scheme suggests that Congress has granted an agency the
    power to interpret its own statutory terms. The Court further
    explained:
    [T]he interstitial nature of the legal question, the
    related expertise of the Agency, the importance
    of the question to administration of the statute,
    the complexity of that administration, and the
    careful consideration the Agency has given the
    question over a long period of time all indicate
    that Chevron provides the appropriate legal lens
    through        which         to      view        the
    legality of the Agency interpretation here at
    issue.
    
    Id. at 222
    . Reiterating this point, the Court concluded, “The
    statute’s complexity, the vast number of claims that it
    engenders, and the consequent need for agency expertise and
    administrative experience lead us to read the statute as
    delegating to the Agency considerable authority to fill in,
    through interpretation, matters of detail related to its
    administration.” 
    Id. at 225
    .
    A few guiding principles can be gleaned from the
    above cases in determining whether to apply Chevron
    deference or lower Skidmore deference. 14 Our overarching
    14
    We have infrequently applied the rules set forth in
    Christensen, Mead, and Barnhart. Perhaps the closest
    analogous case to the type of agency action we address here is
    Mercy Catholic Medical Center v. Thompson, 
    380 F.3d 142
    ,
    152 (3d Cir. 2004). There, we declined to apply Chevron
    deference to an informal interpretive rule issued by the
    Secretary of the Department of Health and Human Services
    “as an official instruction to fiscal intermediaries” that was
    18
    concern is whether “Congress delegated authority to the
    agency generally to make rules carrying the force of law, and
    that the agency interpretation claiming deference was
    promulgated in the exercise of that authority.” Mead, 
    533 U.S. at
    226–27. In addition, we will consider the factors set
    forth in Barnhart: (1) the interstitial nature of the legal
    question; (2) the related expertise of the agency; (3) the
    importance of the question to administration of the statute; (4)
    the complexity of that administration; and (5) the careful
    consideration the agency has given the question over a long
    period of time. 534 U.S. at 222. 15
    later published in the Federal Register. Id. We noted that
    “agency interpretive guidelines ‘do not rise to the level of a
    regulation and do not have the effect of law.’” Id. at 155
    (quoting Brooks v. Vill. of Ridgefield Park, 
    185 F.3d 130
    ,
    135 (3d Cir. 1999)). We also explained that Chevron
    deference is inappropriate for “informal agency
    interpretations” because allowing strong deference “‘would
    unduly validate the results of an informal process.’” 
    Id.
    (quoting Madison, 
    233 F.3d at 185
    ).           After applying
    Skidmore, we held that the agency’s interpretation was not
    persuasive and declined to afford it any deference. 
    Id.
     at
    155–58.
    15
    Many of these questions can be resolved by examining the
    language and structure of the statute that an agency is charged
    with administering.      Regarding the complexity of the
    regulatory program at issue, it should be noted that courts
    more readily grant Chevron deference when a case involves a
    “complex and highly technical regulatory program,” which
    “require[s] significant expertise and entail[s] the exercise of
    judgment grounded in policy concerns.” Thomas Jefferson
    Univ. v. Shalala, 
    512 U.S. 504
    , 512 (1994) (quotation marks
    omitted). The length of time an agency has considered the
    question also relates to whether the agency has been
    consistent in its interpretation over the years. In general,
    more deference is afforded to longstanding agency
    interpretations, although this single factor is not itself
    outcome-determinative.       See Alaska Dep’t of Envtl.
    Conservation v. EPA, 
    540 U.S. 461
    , 487 (2004) (“We
    normally accord particular deference to an agency
    interpretation of longstanding duration . . . .”); Cleary, 167
    19
    1.
    A somewhat detailed description of the nature of an
    Acquiescence Ruling is necessary to aid our deference
    analysis. Broadly, agencies are empowered to interpret a
    statute through the processes of rulemaking, adjudication, or
    licensing. Administrative Procedure Act (“APA”), 
    5 U.S.C. § 551
    , et seq. Rulemaking is defined as the “agency process for
    formulating, amending, or repealing a rule,” and a rule is
    defined as an “agency statement of general or particular
    applicability and future effect.” 
    Id.
     § 551(4), (5). The
    rulemaking process must involve the notice-and-comment
    procedures outlined in the APA unless there is good cause or
    the proposed rule falls into the category of “interpretative
    rules, general statements of policy, or rules of agency
    organization, procedure, or practice.” Id. § 553(b)(3)(A). In
    the context of the administration of the Social Security Act,
    the SSA issues two types of rulings which do not involve
    notice-and-comment procedures: Social Security Rulings,
    which address both administrative and judicial decisions, and
    Acquiescence Rulings, 16 which relate only to decisions by
    federal appellate courts. Social Security and Acquiescence
    F.3d at 808 (providing that informal agency interpretations
    “will receive some deference by the court if they are . . .
    consistent with prior administrative views”). But see Nat’l
    Cable & Telecomms. Ass’n v. Brand X Internet Servs., 
    545 U.S. 967
    , 981 (2005) (affording Chevron deference to an
    interpretation by the Federal Communications Commission
    despite the recent change in policy at the agency because
    “[a]gency inconsistency is not a basis for declining to analyze
    the agency’s interpretation under the Chevron framework”);
    Chevron, 
    467 U.S. at
    863–64 (“An initial agency
    interpretation is not instantly carved in stone. On the
    contrary, the agency . . . must consider varying interpretations
    and the wisdom of its policy on a continuing basis.”).
    16
    Although it is clear that the process for formulating an
    Acquiescence Ruling does not require notice-and-comment,
    the procedure employed by the SSA is somewhat opaque
    because the agency’s internal guidelines do not explain the
    process for drafting and approving an Acquiescence Ruling or
    who bears the responsibility for doing so.
    20
    Rulings, available at http://www.ssa.gov/OP_Home/rulings/
    rulings-pref.html (last visited August 8, 2012).
    Acquiescence Rulings “explain how SSA will apply a
    holding by a United States Court of Appeals that is at
    variance with [the agency’s] national policies for adjudicating
    claims.”     Acquiescence Ruling Definition, available at
    http://www.ssa.gov/regulations/def-ar.htm       (last   visited
    August 8, 2012); see also 
    20 C.F.R. § 404.985
    (b) (stating that
    the SSA will issue an Acquiescence Ruling when it
    “determine[s] that a United States Court of Appeals holding
    conflicts with [the SSA’s] interpretation of a provision of the
    Social Security Act or regulations”); Social Security
    Acquiescence Ruling 05–1(9), 
    70 Fed. Reg. 55,656
     (Sept. 22,
    2005) (“An acquiescence ruling explains how [the SSA] will
    apply a holding in a decision of a United States Court of
    Appeals that [the SSA] determine[s] conflicts with [its]
    interpretation of a provision of the Social Security Act (Act)
    or regulations when the Government has decided not to seek
    further review of that decision or is unsuccessful on further
    review.”). The content of this type of ruling “describe[s] the
    administrative case and the court decision, identif[ies] the
    issue(s) involved, and explain[s] how [the SSA] will apply
    the holding, including, as necessary, how the holding relates
    to other decisions within the applicable circuit.” 
    20 C.F.R. § 404.985
    (b). Acquiescence Rulings are announced through
    publication “in the ‘Notices’ section of the Federal Register
    under the authority of the Commissioner of Social Security
    and are effective upon publication.” Acquiescence Ruling
    Definition, supra. Importantly, “ARs do not have the force
    and effect of the law or regulations,” although the SSA
    requires that they be “binding on all components of SSA
    unless superceded, rescinded, or modified by another ruling.”
    Id. 17
    17
    It might appear from this brief description that the name
    “Acquiescence Ruling” is something of a misnomer given
    that these rulings are issued to indicate the SSA’s policy of
    refusing to follow the decision of a Court of Appeals.
    However, such rulings specifically explain the SSA’s general
    policy that it will comply with the appellate ruling within the
    circuit where the ruling was issued except to the extent that it
    elects to relitigate the issue. See 
    20 C.F.R. § 404.985
    (a)
    21
    2.
    We now turn to AR 92-2(6) which, as noted, contains
    the SSA’s interpretation of § 423(f). Without elucidating the
    SSA’s reasoning, the Acquiescence Ruling provides that “the
    term ‘current,’ as used in the statutory and regulatory
    language concerning termination of disability benefits, []
    relate[s] to the time of the cessation under consideration in
    the initial determination of cessation.” AR 92-2(6). During
    the course of a cessation proceeding, the ruling explains, the
    relevant factor is “the claimant’s condition . . . at the time of
    the cessation determination, not the claimant’s condition at
    the time of the disability hearing / reconsideration
    determination, ALJ decision or Appeals Council decision.”
    Id. The ruling also discloses the SSA’s policy that any
    condition that became disabling during the pendency of a
    proceeding would result in the solicitation of a new
    application for benefits. AR 92-2(6) concludes by explaining
    that, in light of its disagreement with Difford, it would
    comply with that decision in the Sixth Circuit only.
    Several factors counsel against according Chevron
    deference to AR 92-2(6). For instance, Acquiescence Rulings
    do not undergo notice-and-comment before their passage.
    We also note that Acquiescence Rulings lack the force of law,
    a view supported by the SSA’s language in its internal
    policies, see Social Security and Acquiescence Rulings, supra
    (“Acquiescence Rulings do not have the force and effect of
    the law or regulations.”), and our prior jurisprudence. 18 See
    (“We will apply a holding in a United States Court of Appeals
    decision that we determine conflicts with our interpretation of
    a provision of the Social Security Act or regulations . . . .
    within the applicable circuit . . . .”). Such compliance is
    generally proper to avoid exceeding the scope of the agency’s
    power, because it is axiomatic that it is within the province of
    the judiciary “to say what the law is.” Marbury v. Madison, 5
    U.S. (1 Cranch) 137, 177 (1803).
    18
    It is worth explaining what we mean when we refer
    to “the force of law.” The Supreme Court has
    explained that a rule has “the ‘force and effect of law’”
    when it possesses “certain substantive characteristics”
    22
    Mercy, 
    380 F.3d at 155
     (noting that “agency interpretive
    guidelines do not rise to the level of a regulation and do not
    have the effect of law” (quotation marks omitted)). Further, it
    is unclear how much care the SSA exerted in crafting AR 92-
    2(6). The ruling spans a total of three-and-a-half pages, two
    of which are dedicated to describing the circumstances of the
    case that prompted its issuance. The SSA devotes only one
    paragraph to its interpretation of the statute and does not
    explain how or why it reached its interpretation, a factor
    which weighs against deference. See Packard v. Pittsburgh
    Transp. Co., 
    418 F.3d 246
    , 252–53 (3d Cir. 2005) (holding a
    single-paragraph “informal and cursory” letter by the
    Department of Transportation interpreting the Motor Carrier
    Act was not entitled to Chevron deference).
    There are, however, several institutional concerns
    which counsel towards Chevron deference. The Social
    Security Act imbues the SSA with “exceptionally broad
    authority to prescribe standards” for effectuating the purpose
    of the statute. Schweiker v. Gray Panthers, 
    453 U.S. 34
    , 43
    (1981); see 
    42 U.S.C. § 405
    (a) (directing the SSA to “adopt
    reasonable and proper rules and regulations to regulate and
    provide for the nature and extent of the proofs and evidence
    and the method of taking and furnishing the same” for
    disability cases). In other words, the Social Security Act does
    not explicitly cover a vast number of details related to the
    day-to-day administration of the Social Security program, and
    Congress has relied on the SSA to fill this abyss. Moreover,
    the Supreme Court has observed that “the Social Security
    hearing system is probably the largest adjudicative agency in
    and is “the product of certain procedural requisites.”
    Chrysler Corp. v. Brown, 
    441 U.S. 281
    , 301 (1979).
    An “important touchstone” for distinguishing whether
    a rule has the force of law is whether the rule “affect[s]
    individual rights and obligations.”          
    Id. at 302
    (quotation marks omitted).        While Acquiescence
    Rulings are “binding” within the SSA, this binding
    effect does not extend beyond the agency to bear on
    the “individual rights and obligations” of the people
    and entities regulated by the SSA. Thus, as the SSA
    recognizes, Acquiescence Rulings lack the force of
    law.
    23
    the western world.” Barnhart v. Thomas, 
    540 U.S. 20
    , 28–29
    (2003) (quotation marks omitted). Given the vast scope and
    complexity of the program, “[t]he need for efficiency is self-
    evident.” 
    Id. at 29
    . We are thus faced with a situation where
    the agency has a great deal of expertise in administering a
    complex program and has been entrusted with a great deal of
    power by Congress. See Nat’l Cable & Telecomms., 
    545 U.S. at
    980–81 (deferring to a Federal Communications
    Commission regulation under Chevron because Congress
    gave “the Commission the authority to promulgate binding
    legal rules; the Commission issued the order under review in
    the exercise of that authority; and no one questions that the
    order is within the Commission’s jurisdiction”); cf. Gonzales,
    
    546 U.S. at
    268–69 (declining to give Chevron deference to
    the Attorney General’s interpretation of the Controlled
    Substances Act because the Attorney General lacked the
    expertise and authority to make such an interpretation). The
    issue here — the timing for review of a disability benefits
    recipient who may no longer be disabled — is of great
    importance to the administration of the program, and variance
    in the internal rules for such a determination could create an
    administrative nightmare at all levels of review. This is
    especially true in light of the length of time that appears to
    pass between the initial cessation date and the hearing before
    an ALJ, which in this case spanned four years. It is also
    worth noting that the interpretation here is not a recent
    invention; it has been in effect for twenty years and appears to
    have been consistently applied by the SSA outside of the
    Sixth Circuit. We have no doubt that despite the brevity of
    AR 92-2(6), it represents the considered judgment of the SSA
    in determining how to manage a highly detailed and complex
    statutory scheme.
    After consideration of the above factors, we are
    persuaded that Skidmore deference provides the proper lens
    through which to view AR 92-2(6). 19 Congress has imbued
    the SSA with the authority to enact regulations with legal
    effect, but the SSA elected not to do so and instead
    19
    We need not decide whether, under the fact-intensive test
    we have described, any Acquiescence Ruling could merit
    Chevron deference.
    24
    formulated its policy through the informal mechanism of an
    Acquiescence Ruling, a type of ruling that is non-binding
    except within the agency. It is not entirely clear from the
    Supreme Court’s precedent whether the lack of the “force of
    law” is always fatal to the application of Chevron, but in any
    event, the lack of legal effect of this ruling, combined with
    the absence of formal notice-and-comment rulemaking and
    the failure of the SSA to describe its reasoning, cannot be
    counterbalanced by the SSA’s institutional desire for
    uniformity and ease of administration. 20
    *      *      *      *      *
    We therefore hold that Skidmore, not Chevron,
    provides the type of deference applicable to our review of AR
    92-2(6).
    D.
    Having determined that we will employ Skidmore
    deference in reviewing AR 92-2(6), the central question we
    are tasked with answering is whether the SSA’s interpretation
    is persuasive. We do not believe this question can be
    answered by conducting an independent review of the statute
    and then comparing our analysis with that of the agency, for
    such a process would not endow the agency’s interpretation
    with the “respect” that it may be entitled to under Skidmore.
    Instead, to decide whether we should defer to an agency’s
    interpretation after we have determined that Skidmore
    provides the appropriate lens through which to view that
    interpretation, we begin by considering how much deference
    the agency’s opinion is entitled to.
    20
    We note our decision to apply Skidmore deference to AR
    92-2(6) is contrary to the only other court of appeals decision
    addressing what type of deference should be given to this
    ruling. See Johnson, 
    191 F.3d 770
     (applying Chevron
    deference to AR 92-2(6) without discussion). Because the
    Court of Appeals for the Seventh Circuit’s opinion in Johnson
    predates the Supreme Court’s decisions in Christensen, Mead,
    and Barnhart, we do not view its application of Chevron as
    persuasive.
    25
    As noted, Skidmore deference requires a court to
    assign a “weight” to an administrative judgment based on
    “the thoroughness evident in its consideration, the validity of
    its reasoning, its consistency with earlier and later
    pronouncements, and all those factors which give it power to
    persuade, if lacking power to control.” 
    323 U.S. at 140
    . Such
    weight is appropriate, the Skidmore Court held, because
    “rulings, interpretations and opinions of the Administrator
    under this Act, while not controlling upon the courts by
    reason of their authority, do constitute a body of experience
    and informed judgment to which courts and litigants may
    properly resort for guidance.” 
    Id.
     We, like many of our sister
    courts of appeals, have adopted Mead’s conceptualization of
    the Skidmore framework as a “sliding-scale” test in which the
    level of weight afforded to an interpretation varies depending
    on our analysis of the enumerated factors. Mead, 
    533 U.S. at 228
     (“The fair measure of deference to an agency
    administering its own statute has been understood to vary
    with circumstances[,] . . . produc[ing] a spectrum of judicial
    responses, from great respect at one end, to near indifference
    at the other.” (citations omitted)); see Ebbert v.
    DaimlerChrysler Corp., 
    319 F.3d 103
    , 115 (3d Cir. 2003)
    (referring to certain categories of documents as being “at the
    lower end of the Skidmore scale of deference”); see also
    Kristin E. Hickman & Matthew D. Krueger, In Search of the
    Modern Skidmore Standard, 
    107 Colum. L. Rev. 1235
    , 1271
    (2007) (determining, after a five-year review of all courts of
    appeals cases applying Skidmore, that “the sliding-scale
    model of Skidmore deference dominates the independent
    judgment model among the federal circuit courts of appeals”).
    Through our previous applications of Skidmore to
    informal agency interpretations, some important factors have
    emerged. For example, we have noted that more deference is
    granted under Skidmore’s sliding scale test when the
    agency’s interpretation is “issued contemporaneous[ly] with a
    statute.” Madison, 
    233 F.3d at 187
    . Less deference is
    afforded when an agency’s interpretation is inconsistent with
    its prior positions. See Mercy, 
    380 F.3d at 155
     (holding the
    Skidmore factors counseled against affording the agency’s
    interpretation deference given the agency’s “internally
    conflicting positions” and the unreasonableness of its
    26
    interpretation). We have held that, when determining what
    deference to give to an agency’s actions under Skidmore,
    “[t]he most important considerations are whether the agency’s
    interpretation ‘is consistent and contemporaneous with other
    pronouncements of the agency and whether it is reasonable
    given the language and purpose of the Act.’” DDNR, 685
    F.3d at 284 (quoting Cleary, 
    167 F.3d at 808
    ).
    Additionally, many of the same circumstances we
    found relevant for determining whether to apply Chevron
    deference are also useful for deciding the level of deference
    due under Skidmore. For example, the relative expertise of
    the SSA in administering a complex statutory scheme and the
    agency’s longstanding, unchanging policy regarding this issue
    counsel towards a higher level of deference. See Alaska
    Dep’t of Envtl. Conservation, 
    540 U.S. at 492
     (holding that
    the    Environmental      Protection   Agency’s      (“EPA”)
    interpretation of the Clean Air Act (“CAA”) in internal
    guidance memoranda merited sufficient “respect” under
    Skidmore for the Court to defer to the agency’s
    “longstanding, consistently maintained interpretation”
    because the EPA was the “expert federal agency charged with
    enforcing the [CAA]”). On the other hand, the brevity of AR
    92-2(6) and its underdeveloped reasoning counsel toward a
    lower level of deference. See Packard, 
    418 F.3d at
    252–53
    (holding that a brief letter by the Department of
    Transportation interpreting the Motor Carrier Act was entitled
    to no deference under Skidmore because the letter “simply
    provide[d] no reasoning or analysis that a court could
    properly find persuasive”).
    Applying these factors to the instant matter reveals that
    a relatively high level of deference is warranted. As we have
    explained above, the SSA is an agency to which Congress has
    given “exceptionally broad authority” to manage a complex,
    nationwide administrative system. Schweiker, 
    453 U.S. at 43
    .
    The need for uniformity in such an organization cannot be
    doubted. Moreover, administering the Social Security Act is
    the central purpose of the SSA, and the SSA has developed a
    massive body of expertise during the 56 years of the disability
    insurance program’s existence. Although the text of the
    Acquiescence Ruling does not explain the reasoning behind
    the SSA’s adoption of its interpretation, the SSA appears to
    27
    have consistently applied this policy during the past 20 years
    and its reasons for creating a policy which sets a fixed date
    for review of a cessation determination are not difficult to
    discern.    In sum, these considerations counsel toward
    applying a fairly high level of deference on the Skidmore
    scale.
    After applying an appropriately high level of deference
    under Skidmore, we find the SSA’s interpretation of § 423(f)
    sufficiently persuasive to defer to it. While it may not be the
    interpretation we would adopt if we were to engage in an
    independent review, the interpretation contained in AR 92-
    2(6) represents the considered judgment of the agency and is
    in accordance with the SSA’s statutory mandate to set rules
    for the governance of the disability insurance program.
    Essentially, the SSA conceptualizes the cessation scheme as
    one in which there is a single determination followed by
    several layers of review. Under this view, the terms “now”
    and “current” in § 423(f) refer to the date of the initial finding
    that a recipient’s disability has ceased. Therefore, the ALJ’s
    role in a cessation proceeding is to review the SSA’s
    determination that a benefits recipient was not eligible for
    benefits as of a fixed, specific date, not to determine whether
    he might have become eligible at some later time. The SSA’s
    interpretation finds support in the fact that the Social Security
    Act requires that a “period of disability” be “continuous” and
    requires the filing of an application for benefits in order to
    begin such a period. 
    42 U.S.C. § 416
    (i)(2). The Social
    Security program is thus designed to prevent any breaks in
    the continuity of a period of disability and the attendant
    benefits that flow from such a disability. As the Court of
    Appeals for the Seventh Circuit recognized, allowing an ALJ
    to consider a benefits recipient’s status several years after the
    initial determination that the recipient was no longer disabled
    would potentially allow a break in continuity in contravention
    of the statute. See Johnson, 
    191 F.3d at 747
     (deferring to the
    SSA’s interpretation in AR 92-2(6) because of the potential
    lack of continuity in the disability period and the fact that
    allowing a revised evaluation of the recipient at the time of
    the ALJ hearing would require the ALJ “to adjudicate
    disability for a new period of time — from the cessation of
    disability benefits . . . until the date of the ALJ’s decision”).
    Moreover, the Social Security Act was designed to ensure
    28
    that benefits would accrue only during periods of time in
    which a person is truly unable to work. If Hagans was
    capable of working as of September 1, 2004, but became
    classifiable as disabled on some later date, allowing him to
    receive disability benefits for that interim period when he was
    not disabled would thwart the purpose of the SSA.
    In response to these arguments, Hagans contends that
    our opinion in Reefer v. Barnhart, 
    326 F.3d 376
     (3d Cir.
    2003), requires that we consider an individual’s status at the
    time of the ALJ hearing. That case, however, requires only
    that an ALJ consider evidence produced after the cessation
    date, not the status of the disability benefits recipient as of
    some length of time — usually years — after the SSA
    determined that person was no longer disabled. 
    Id. at 381
    .
    Indeed, the Social Security Act unambiguously compels
    consideration of later-acquired evidence by the ALJ. See 
    42 U.S.C. § 423
    (f) (“Any determination under this section shall
    be made on the basis of all the evidence available in the
    individual’s case file, including new evidence concerning the
    individual’s prior or current condition which is presented by
    the individual or secured by the Commissioner of Social
    Security.”). While the fact that all evidence available must be
    considered may support Hagans’s construction of § 423(f), it
    is not dispositive because evidence acquired after the
    cessation date can nonetheless be relevant for the purposes of
    determining the individual’s capabilities on the cessation
    date. 21
    If the evidence is sufficient to show that Hagans was
    not disabled as of September 1, 2004, he would not be
    entitled to benefits as of that date. Otherwise, a fully
    recovered disability benefits recipient who later relapsed
    could receive benefits for several years during which he was
    not actually disabled and was capable of work. Moreover, the
    ALJ’s role in a Social Security cessation proceeding is to
    review the SSA’s determination that a benefits recipient was
    21
    We also note that the ALJ in this case did consider all
    relevant evidence introduced at the time of the hearing, as
    required, including medical reports dating from 2005 and
    2006.
    29
    not eligible for benefits as of a certain date, not to determine
    whether he might have become eligible at some later time.
    Indeed, after the ALJ denied Hagans’s appeal, he filed a new
    application for disability benefits covering a more recent time
    period on the grounds that his impairments have worsened
    since the SSA determined that his disability ended.
    Given our deference to the SSA’s persuasive
    interpretation of § 423(f) under Skidmore, we will affirm the
    District Court’s finding that the SSA correctly evaluated
    Hagans’s condition as of the date on which the agency first
    found that Hagans’s eligibility for disability benefits ceased.
    IV.
    Hagans cursorily argues that the ALJ’s adverse
    findings are not supported by substantial evidence. Because
    this argument is plainly meritless, we need address it only
    briefly.
    When the SSA finds that a disability benefits recipient
    no longer has the physical or mental impairment to render
    him disabled, the SSA may determine that the recipient is no
    longer entitled to disability benefits. 
    42 U.S.C. § 423
    (f).
    Substantial evidence must demonstrate that the recipient’s
    condition has experienced “medical improvement” such that
    the recipient is “able to engage in substantial gainful
    activity.” 
    Id.
     A key part of this analysis involves comparing
    the severity of the impairment at the time of the most
    favorable recent disability determination with the current
    severity of that impairment. 
    20 C.F.R. § 404.1594
    (b)(7),
    (c)(1). The Social Security regulations require that benefit
    recipients be subject to the following set of eight evaluation
    questions when the SSA is attempting to determine whether
    they remain disabled:
    (1) Are you engaging in substantial gainful
    activity? If you are (and any applicable trial
    work period has been completed), we will find
    disability to have ended (see paragraph (d)(5) of
    this section).
    (2) If you are not, do you have an impairment or
    30
    combination of impairments which meets or
    equals the severity of an impairment listed in
    appendix 1 of this subpart? If you do, your
    disability will be found to continue.
    (3) If you do not, has there been medical
    improvement as defined in paragraph (b)(1) of
    this section? If there has been medical
    improvement as shown by a decrease in medical
    severity, see step (4). If there has been no
    decrease in medical severity, there has been no
    medical improvement. (See step (5).)
    (4) If there has been medical improvement, we
    must determine whether it is related to your
    ability to do work in accordance with
    paragraphs (b)(1) through (4) of this section;
    i.e., whether or not there has been an increase in
    the residual functional capacity based on the
    impairment(s) that was present at the time of the
    most recent favorable medical determination. If
    medical improvement is not related to your
    ability to do work, see step (5). If medical
    improvement is related to your ability to do
    work, see step (6).
    (5) If we found at step (3) that there has been no
    medical improvement or if we found at step (4)
    that the medical improvement is not related to
    your ability to work, we consider whether any
    of the exceptions in paragraphs (d) and (e) of
    this section apply. If none of them apply, your
    disability will be found to continue. If one of
    the first group of exceptions to medical
    improvement applies, see step (6). If an
    exception from the second group of exceptions
    to medical improvement applies, your disability
    will be found to have ended. The second group
    of exceptions to medical improvement may be
    considered at any point in this process.
    (6) If medical improvement is shown to be
    related to your ability to do work or if one of
    31
    the first group of exceptions to medical
    improvement applies, we will determine
    whether all your current impairments in
    combination are severe (see § 404.1521). This
    determination will consider all your current
    impairments and the impact of the combination
    of those impairments on your ability to
    function. If the residual functional capacity
    assessment in step (4) above shows significant
    limitation of your ability to do basic work
    activities, see step (7). When the evidence
    shows that all your current impairments in
    combination do not significantly limit your
    physical or mental abilities to do basic work
    activities, these impairments will not be
    considered severe in nature. If so, you will no
    longer be considered to be disabled.
    (7) If your impairment(s) is severe, we will
    assess your current ability to do substantial
    gainful activity in accordance with § 404.1560.
    That is, we will assess your residual functional
    capacity based on all your current impairments
    and consider whether you can still do work you
    have done in the past. If you can do such work,
    disability will be found to have ended.
    (8) If you are not able to do work you have
    done in the past, we will consider one final step.
    Given the residual functional capacity
    assessment and considering your age, education
    and past work experience, can you do other
    work? If you can, disability will be found to
    have ended. If you cannot, disability will be
    found to continue.
    Id. § 404.1594(f). Within the context of a termination
    proceeding, there is a burden-shifting scheme in which
    a recipient must first “introduce[] evidence that his or
    her condition remains essentially the same as it was at
    the time of the earlier determination.” Early v.
    Heckler, 
    743 F.2d 1002
    , 1007 (3d Cir. 1984). Once a
    recipient has done so, “the burden shifts to the [SSA]
    to ‘present evidence that there has been sufficient
    32
    improvement in the [recipient’s] condition to allow the
    [recipient] to undertake gainful activity.’” 
    Id.
     (quoting
    Kuzmin v. Schweiker, 
    714 F.2d 1233
    , 1237 (3d Cir.
    1983)).
    Hagans points to no evidence that contradicts the
    ALJ’s determination that his medical impairments underwent
    an improvement between January 2003 and September 2004,
    and thus fails to shift the burden to the SSA. The medical
    reports and the RFC indicated that, although Hagans was no
    longer capable of doing his past relevant work, his increased
    mobility and the decrease in the severity of his conditions
    rendered him fit to engage in sedentary work. Moreover,
    although Hagans seems to argue that the ALJ did not properly
    consider his mental illness (depression) in conjunction with
    his other problems, the ALJ did consider Hagans’s mental
    problems and determined they did not meet the criteria to
    constitute a listed impairment. She also considered his
    depression in determining the type of work Hagans could
    perform.
    As the record amply supports the ALJ’s finding that
    Hagans ceased to be disabled on September 1, 2004, we will
    affirm the District Court’s finding that this determination was
    supported by substantial evidence.
    V.
    For the foregoing reasons, we will affirm the judgment
    of the District Court.
    33
    

Document Info

Docket Number: 11-2526

Citation Numbers: 694 F.3d 287, 2012 U.S. App. LEXIS 19319, 2012 WL 4040256

Judges: Fuentes, Chagares, Pogue

Filed Date: 9/14/2012

Precedential Status: Precedential

Modified Date: 11/5/2024

Authorities (31)

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Chrysler Corp. v. Brown , 99 S. Ct. 1705 ( 1979 )

Schweiker v. Gray Panthers , 101 S. Ct. 2633 ( 1981 )

Thomas Jefferson University v. Shalala , 114 S. Ct. 2381 ( 1994 )

Skidmore v. Swift & Co. , 65 S. Ct. 161 ( 1944 )

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United States v. Albert Tupone , 442 F.3d 145 ( 2006 )

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