                                          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.




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