07-3550 | Omnilex

Gesamter Gesetzestext

# UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

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August Term, 2008

(Argued: December 11, 2008; Last Submission: February 24, 2009
Decided: June 4, 2009)

Docket No. 07-3550-cv

ELISA ENCARNACION, on behalf of ARLENE GEORGE, ANA LORA, on
behalf of MICHELLE TAVARES, HORTENSIA LACAYO, MATTHEW LACAYO,
and ROSA VELOZ, on behalf of BEN-HAMIR COLLADO,

## Plaintiffs-Appellants,

\- V. -

MICHAEL J. ASTRUE, Commissioner of Social Security,

Defendant-Appellee.

Before:
MCLAUGHLIN, WESLEY, and HALL, Circuit Judges.
X

The U. S. District Court for the Southern District of New
York (Swain, J.) granted summary judgment to the Commissioner of
Social Security, upholding the Commissioner's implementation of
the Social Security Act's provisions for determining children's
eligibility for Supplemental Security Income Benefits. The
plaintiffs appealed. Pursuant to Skidmore v. Swift & Co., 323
U.S. 134 (1944), we hold that the agency's interpretation of the
Act is persuasive and therefore should be upheld.

AFFIRMED.

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JEFFREY S. TRACHTMAN, Kramer Levin
Naftalis & Frankel LLP (Jessica Glass,
Kramer Levin Naftalis & Frankel LLP;
James M. Baker, Christopher James Bowes,
Center for Disability Advocacy Rights;
Kenneth Rosenfeld, Matthew J. Chachere,
Northern Manhattan Improvement
Corporation Legal Services, on the
brief), New York, New York, for
Plaintiffs-Appellants.

SUSAN D. BAIRD, Assistant U.S. Attorney
(Michael J. Garcia, U.S. Attorney for
the Southern District of New York, David
S. Jones, Assistant U. S. Attorney, on
the brief), New York, New York, for
Defendant-Appellee.

MCLAUGHLIN, Circuit Judge:

The plaintiffs represent a putative class of children whose
parents claim that the Commissioner of Social Security (the
"Commissioner") has implemented a policy (the "Policy") that
excludes some children from eligibility for Supplemental Security
Income Benefits ("SSI Benefits") in a manner that violates the
Social Security Act (the "Act") and the Commissioner's own
regulations. Pursuant to those regulations, childhood disability
is determined by evaluating applicants within six domains of
functioning, such as the child's ability to acquire and use
information. Children are eligible for benefits if they have at

least two "marked" limitations on their functioning within these
domains or at least one "extreme" limitation. Under the Policy,
the combined effect of a child's multiple mental or physical
impairments may be deemed a marked or extreme limitation if the

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limitation occurs within a single domain. But the Policy
prohibits the Social Security Administration (the "SSA") from
considering the combined effects of limitations in different
domains. Thus, the SSA will not adjust a less-than-marked
limitation in one domain based on limitations in other domains.

The plaintiffs maintain that the Policy violates the Act's
command that the SSA consider the combined effects of a child's
impairments "throughout the disability determination process."
42 U.S.C. § 1382c (a) (3) (G) . They also claim that the Policy
violates a nearly identical provision in the Commissioner's
regulations. The district court disagreed and granted summary
judgment to the Commissioner. We AFFIRM.

### BACKGROUND

This is the second time we have addressed the plaintiffs'
claims. We provide an abbreviated version of the extensive
background, including the relevant statutory and regulatory
history, recounted in our prior decision, Encarnacion ex rel.
George v. Barnhart, 331 F.3d 78, 80-86 (2d Cir. 2003)
("Encarnacion I") .

The Act provides for SSI Benefits to disabled children as
well as adults. See Pub. L. No. 92-603, § 301, 86 Stat. 1329,
1471, 1473 (1972) . The Commissioner has authority to promulgate
regulations to determine eligibility for SSI Benefits. See 42
U.S.C. § 405 (a) . In 1984, Congress added to the Act a provision

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that applies to all disability determinations (whether for
children or adults), which instructs:

In determining whether an individual's physical or
mental impairment or impairments are of a sufficient
medical severity that such impairment or impairments
could be the basis of eligibility [for SSI Benefits],
the [Commissioner] shall consider the combined effect
of all of the individual's impairments without regard
to whether any such impairment, if considered
separately, would be of such severity. If the
[Commissioner] does find a medically severe combination
of impairments, the combined impact of the impairments
shall be considered throughout the disability
determination process.

Social Security Disability Benefits Reform Act of 1984, Pub. L.
No. 98-460, $ 4, 98 Stat. 1794, 1800 (codified at 42 U.S.C.
§ 1382c (a) (3) (G) ). In 1985, the SSA adopted a regulation that
repeats this statute nearly verbatim. See Disability Insurance
and Supplemental Security Income; Determining Disability and
Blindness; Multiple Impairments, 50 Fed. Reg. 8,726, 8,729 (Mar.
5, 1985) (codified at 20 C.F.R. § 416.923) . These two provisions
are central to the plaintiffs' claims in this case.

The Commissioner's regulations for determining a child's
eligibility for SSI Benefits have undergone many amendments. One
important change came as a result of the Supreme Court's decision
in Sullivan v. Zebley, 493 U.S. 521 (1990). There, the Supreme
Court held that the SSA regulations for determining whether a
child is disabled, which permitted benefits to children only if
their impairments matched or medically equaled specific
impairments listed in an appendix to the SSA's regulations, were

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an impermissible implementation of the Act. See id. at 526, 541.
The regulations did not permit a child claimant to show that "the
overall functional impact of his unlisted impairment or
combination of impairments is as severe as that of a listed
impairment." Id. at 531.

In response to Sullivan, the SSA amended the regulations to
require an "individualized functional assessment" ("IFA") for
each child. See Supplemental Security Income; Determining
Disability for a Child Under Age 18, 56 Fed. Reg. 5,534 (Feb. 1,
1991) (codified at 20 C.F.R. § 416.924). As a result of the new
regulations, a child's impairments were evaluated within six
domains of childhood activity or functioning. See Encarnacion I,
331 F. 3d at 83. The amended regulations established a hierarchy
of limitations (the effect of an impairment or combination of
impairments) : "extreme, " "marked," "moderate," and "severe." See
id. The regulations recommended that children be deemed disabled
if their impairments caused a marked limitation in one domain and
a moderate limitation in another domain, or if a child had three
moderate limitations. See id.

In 1996, the regime for children's SSI Benefits underwent
more changes. Congress amended the Act to define a "disabled"
child as one who "has a medically determinable physical or mental
impairment, which results in marked or severe functional
limitations, and which can be expected to result in death or

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which has lasted or can be expected to last for a continuous
period of not less than 12 months." Personal Responsibility and
Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193,
§ 211, 110 Stat. 2105, 2188-89 (codified at 42 U.S.C.

§ 1382c (a) (3) (C) (i)). Congress made clear that children should
not qualify for benefits under the new definition unless they
have at least two marked limitations, thus making eligibility
more restrictive. See Encarnacion I, 331 F.3d at 83-84 (citing
H.R. Rep. No. 104-725, at 328 (1996) (Conf. Rep.), reprinted in
1996 U.S.C.C.A.N. 2649, 2716). Congress also eliminated the IFA
process. Pub. L. No. 104-193, § 211 (b) (2), 110 Stat. at 2189.

The Commissioner was charged with promulgating "such
regulations as may be necessary to implement" the amendment, id.
§ 215, 110 Stat. at 2196, and issued regulations pursuant to this
statutory authority, see 20 C.F.R. § 416.924 et seq. The
regulations establish a three-step process. First, the child
must not be engaged in "substantial gainful activity." Id.

§ 416.924 (a) . Second, the child "must have a medically
determinable impairment (s)" that is "severe" in that it causes
"more than minimal functional limitations." Id. § 416.924 (c) .

Third, the child's impairment or combination of impairments must
medically or functionally equal an impairment listed in an
appendix to the regulations. See id. § 416.924 (d); 20 C.F.R. pt.
404, subpt. P, app. 1 (listing and describing impairments). The

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plaintiffs' challenge concerns the manner of determining
functional equivalence at the third step of this process.

For a child's impairment to functionally equal a listed
impairment, the impairment must "result in 'marked' limitations
in two domains of functioning or an 'extreme' limitation in one

domain." 20 C.F.R. § 416.926a (a). The domains that the
regulations establish to determine whether impairments result in
marked or extreme limitations are: (1) acquiring and using
information, (2) attending and completing tasks, (3) interacting
and relating with others, (4) moving about and manipulating
objects, (5) caring for oneself, and (6) health and physical
well-being. Id. § 416.926a (b) (1). The SSA must determine
whether an impairment or combination of impairments causes a
"marked" limitation on a child's functioning in at least two of
these domains, or an "extreme" limitation in at least one domain.
A "marked" limitation is "'more than moderate' but 'less than
extreme'" and "interferes seriously with" a child's "ability to
independently initiate, sustain, or complete activities." Id.
§ 416.926a (e) (2) (i). An "extreme" limitation is "'more than
marked'" and "interferes very seriously with" a child's "ability
to independently initiate, sustain, or complete activities." Id.
§ 416.926a (e) (3). The regulations recognize that an impairment
or combination of impairments may have effects in more than one
domain; thus, the SSA evaluates a child's impairments in any

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domain in which they cause limitations. Id. § 416.926a (c) .

The question that the plaintiffs urge us to answer in the
affirmative is whether the Act and the regulations require the
SSA to consider the combined effects of a child's impairments
across domains. In other words, must the SSA consider, for
example, whether the effects of impairments that cause a moderate

limitation on a child's ability to acquire and use information
(domain 1) and a moderate limitation on the child's ability to
complete tasks (domain 2) result in a marked limitation? The
plaintiffs advocate that the SSA must consider such adjustments
to limitation levels to properly take a "comprehensive look" at
the applicant. Under its Policy, the SSA does not engage in this
sort of analysis.

The Commissioner points to two documents to support the
existence of the Policy: an SSA training manual, see SSA, Office
of Disability, Publ'n No. 64-075, Childhood Disability Training:
Student Manual, Tab F at 15 (1997), and commentary in the notice
of the agency's final rulemaking implementing Congress's 1996
amendments, see Supplemental Security Income; Determining
Disability for a Child Under Age 18, 65 Fed. Reg. 54,747, 54,763
(Sept. 11, 2000) (codified at 20 C.F.R. pts. 404, 416). The
manual provides that "[m]oderate limitations cannot be 'added up'
to equal a 'marked' limitation." In the rulemaking notice, the
Commissioner explained that permitting a finding of disability

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based on less-than-marked limitations in multiple domains would
improperly reinstate the IFA process, under which a child with
three moderate limitations could be considered disabled. See id.

In September 2000, the plaintiffs sued the Commissioner in
the U. S. District Court for the Southern District of New York
(Swain, J.), claiming that they were denied benefits because of
the Policy and that the Policy violated the Act because it
prevented the agency from considering the combined effect of
impairments throughout the disability-determination process. The
district court upheld the Policy, and we affirmed, reading the
SSA regulations to provide sufficient flexibility to "look
comprehensively at the combined effects of [a claimant's]
impairments." Encarnacion I, 331 F.3d at 90 (internal quotation
marks omitted). We left open, however, the possibility of a
later suit alleging that: (1) the Commissioner did not, in fact,
16 permit the SSA to "adjust the level of a claimant's limitation
within one or two domains to 'look comprehensively' at the
claimant and account for the 'interactive and cumulative effects'
of limitations in other domains," or (2) the domains
insufficiently account for significant aspects of childhood
functioning. See id. at 89 & n.7 (citations omitted) .

The plaintiffs filed this case in September 2003, alleging
that the Policy prevents the SSA from adding together less-than-
marked limitations from separate domains and prohibits the SSA

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from adjusting the level of limitation in one domain to reflect
the impact of limitations in other domains. In support of their
claims, the plaintiffs submitted an expert declaration from Kevin
P. Dwyer, a school psychologist. Dwyer opined that the Policy.
resulted in an "irrational and unscientific" methodology for
determining disability and denied benefits to children who were
as, or more, disabled than those who had two marked limitations
and qualified for benefits.

The district court granted summary judgment to the
Commissioner. The court concluded that Encarnacion I did not
require the Commissioner to engage in cross-domain combination of
less-than-marked limitations and that the regulations, as
informed by the Policy, adequately took into account the combined
effect of a child's impairments. The court also found that
Dwyer's general statements, unconnected to any actual cases, were
insufficient to defeat summary judgment.

The plaintiffs now appeal.

## DISCUSSION

We review de novo the district court's grant of summary
judgment. Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir. 2007) .

### I. Effect of Encarnacion I

The plaintiffs contend that Encarnacion I dictates a result
in their favor. We disagree.

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erroneous procedure
particularly since SSA regulations are

In Encarnacion I, the Court gave three reasons for rejecting
the plaintiffs' challenge. First, the SSA considers impairments
in each domain that they affect. 331 F.3d at 88. Second, the
SSA evaluates the combined effects of impairments within each
affected domain. Id. And third, notwithstanding the Policy, the
regulations appeared to the Court to permit "the existence of
sub-marked limitations in other domains [to] influence the level
of impairment [the] SSA finds in any one given domain," although
not in the sense that the SSA would add up less-than-marked
limitations to equal a marked limitation. See id. at 88, 89.
Thus, in the Court's view, the plaintiffs' challenge rested on
the incorrect "assumption that after adding together limitations
within domains, [the] SSA makes no further adjustments to the
level of limitation in each domain." Id. at 88.

The Court also noted that "the flexibility to account for
cumulative effects . . . is likely essential to a permissible
implementation of the Act" because, under Sullivan v. Zebley, 493
U.S. 521 (1990), and the Act's language, an impairment cannot be
"assigned zero weight in the ultimate decision whether or not to
award benefits." Id. at 89, 90. However, based on the record
before it, the Court was "satisfied that the agency's policy of
considering the combined impact of an impairment within every
affected domain but not adding across domains is not a plainly

flexible enough to allow [Administrative Law Judges] to look
comprehensively at the combined effects of [a claimant's]
impairments." Id. at 90 (internal quotation marks omitted) .

Judge Raggi wrote a separate concurrence to emphasize her
view that the Court's opinion permitted, but did not require, the
Commissioner to adjust the limitation level within one domain
based on limitations in other domains. See id. at 92 (Raggi, J.,
concurring) . Judge Raggi noted that "the SSA does not presently
engage in across-domain analysis in determining childhood
disability," but concluded that the Commissioner's method of
evaluating the combined effects of impairments within each domain
they affect was a reasonable implementation of the statute. See
id. at 92-93. With regard to the majority's statement that the
flexibility it described was "likely essential to a permissible
implementation of the Act," Judge Raggi understood the majority
to "refer[] both to the flexibility available in the present SSA
practice . . . as well as to the flexibility afforded by the
alternative across-domain adjustment process." Id. (internal
quotation marks omitted) .

We believe that Encarnacion I did not resolve the precise
issue before us. Rather, the Court suggested what the plaintiffs
assumed did not exist: the possibility of cross-domain adjustment
as part of the agency's "comprehensive" look at each applicant.
There is now, however, no dispute that the SSA, in practice, does

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not engage in the sort of cross-domain adjustment that the Court
in Encarnacion I thought the regulations permitted. Because it
believed that the regulations allowed cross-domain adjustments,
the Court in Encarnacion I did not decide whether the
Commissioner could permissibly implement the Act without such
analysis.

Like Judge Raggi, we do not read the majority's statement
about sufficient flexibility to require the SSA to adjust the
limitation level in one domain based on limitations in other
domains. See id. at 92. Instead, we understand the Court to
have meant that the Commissioner's interpretation could not be so
inflexible as to assign zero weight to an impairment in the
disability-determination process.1 We know that the Court found
sufficient flexibility for the three reasons noted above. We
simply do not know, because the Court was not required to decide,
whether the Court would have reached the same result absent the

third of those three reasons - i.e., that the agency could adjust
limitation levels within a particular domain based on a
comprehensive look at the claimant. We therefore must decide
that issue here.

1 To the extent that the Court in Encarnacion I meant to suggest
that the Act required the agency to make cross-domain
adjustments, any such comments are dicta and do not free us of
the obligation to decide the issue ourselves.

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#### II. Deference Due the Policy

The plaintiffs allege that the Policy conflicts with both
the Act and the regulations. Before addressing the substance of
their challenge, we must decide the level of deference due the
Commissioner.

Whether a court defers to an agency's interpretation
"depends in significant part upon the interpretive method used
and the nature of the question at issue." Barnhart v. Walton,
535 U.S. 212, 222 (2002). When Congress has entrusted rulemaking
authority under a statute to an administrative agency, we
evaluate the agency's implementing regulations under Chevron,
U. S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837 (1984). See United States v. Mead Corp., 533 U.S. 218, 229-
30 (2001). A similar deference applies when an agency interprets
its own regulations. That interpretation, regardless of the
formality of the procedures used to formulate it, is "controlling
unless plainly erroneous or inconsistent with the regulation [s] ."
Auer v. Robbins, 519 U.S. 452, 461 (1997) (internal quotation
marks omitted); see also Encarnacion I, 331 F.3d at 86 ("[A]n
agency's interpretation of its own regulations is entitled to
considerable deference, irrespective of the formality of the
procedures used in formulating the interpretation."). Even if
neither Chevron nor Auer applies, an agency interpretation is
still entitled to "'respect according to its persuasiveness'"

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under Skidmore v. Swift & Co., 323 U.S. 134 (1944). Estate of

Landers v. Leavitt, 545 F.3d 98, 107 (2d Cir. 2008) (quoting Mead
Corp., 533 U.S. at 221) .

The plaintiffs argue that the Policy is not entitled to
Chevron deference because it is not found in the regulations
themselves, but is only expressed, if at all, in informal sources
like the training manual.2 Cf. id. at 106 ("[A]gency manuals, as
a class, are generally ineligible for Chevron deference."). The
plaintiffs also argue that the Policy is not entitled to Auer
deference to the extent that it interprets 20 C.F.R. § 416.923
because that regulation merely parrots the language of 42 U.S.C.
§ 1382c (a) (3) (G) . Cf. Gonzales v. Oregon, 546 U.S. 243, 257
(2006) ("An 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."). We need not resolve these
issues because we conclude that, even applying the less
deferential Skidmore standard, the Policy must be upheld. See,
e.g., Fed. Express Corp. v. Holowecki, 128 S. Ct. 1147, 1156
(2008) (avoiding questions as to application of Chevron and Auer
deference and upholding agency interpretation under Skidmore).

2 The plaintiffs contend that the training manual and commentary
to the 2000 rulemaking contain only "sparse and inconclusive
references" to the Policy, and that the Commissioner has fully
articulated the Policy only in this litigation.

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##### III. Application of Skidmore

The weight we give an interpretation under Skidmore depends
"upon 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." Skidmore, 323 U.S. at 140. To gauge the
persuasiveness of the Commissioner's interpretation, we begin
with the text of the Act and regulation, both of which require
the SSA to consider the combined impact of a claimant's
impairments "throughout the disability determination process."
42 U.S.C. § 1382c(a) (3) (G); 20 C.F.R. § 416.923.

It is undisputed that the "disability determination process"
is the sequential process that the Commissioner has established
under his broad statutory authority. See, e.g., 42 U.S.C.
§ 405 (a) (authorizing the Commissioner to promulgate regulations
to determine eligibility for benefits) ; Pub. L. No. 104-193,
§ 215, 110 Stat. at 2196 (authorizing the Commissioner to
implement the amended definition of childhood disability). The
requirement that the combination of impairments be considered
throughout the process must therefore be measured with reference
to the "process" the Commissioner has created. We suggested in
Encarnacion I that "the Act appears to require that each of a
claimant's impairments be given at least some effect during each
step of the disability determination process." 331 F. 3d at 90.

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The Commissioner's interpretation satisfies this test because the
SSA considers all impairments within each domain, the final step
of the process as the Commissioner has defined it. The SSA "will
consider a single impairment in every domain it affects, no
matter the degree [, ] [and] will assess the cumulative impact of
all impairments relevant to a particular domain in assessing a
child's cumulative functional limitation in that domain." Id. at
88. Thus, the Policy complies with the statutory language by
mandating consideration of the combined impact of all impairments
within each domain that the impairments affect. Contrary to the
plaintiffs' argument, therefore, the Commissioner's
interpretation does not assign "zero weight" to any impairment or
combination of impairments. 3

We also believe that the Commissioner's interpretation is
consistent with the statutory changes Congress made in 1996. As
we have noted, Congress intended the changes in the definition of
childhood disability to ensure that only those children with at

3 This case is unlike Sullivan v. Zebley, where the Supreme Court
concluded that the childhood-disability regulations did not allow
for consideration of all impairments throughout the process. See
493 U.S. at 535 n.16. The Court explained, however, that if
children were given the same level of individualized
consideration as adults, the regulations would comply with the
statute. See id. For adults, the agency did not merely focus on
the type of impairments, but evaluated the effect of all
impairments on a claimant's functioning. See id. at 535-36 & 535
n.15. Within the domain system, the SSA provides an
individualized assessment of the combined impact of a child's
impairments; it does not merely look at the type of impairments
in an objective fashion, but analyzes the effect of the
impairments on the specific child claimant.

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least two marked limitations within particular domains qualified
for SSI Benefits. See id. at 83-84. Moreover, in its efforts to
tighten eligibility, Congress rejected the IFA process, which had
allowed the SSA greater flexibility to award benefits to children
with fewer than two marked limitations. See id. at 84. We find
persuasive the Commissioner's view that adjusting limitations in
one domain based on limitations in another domain would result in
benefits to children who did not satisfy the more restrictive
standard Congress sought to impose, and would be too close to the
IFA process Congress eliminated.

The Commissioner's interpretation - focusing on combined
impairments within each domain - is easily understood and applied
in a reasonably transparent manner. In contrast, we have
difficulty understanding how the plaintiffs' interpretation of
the statute would function in practice. Cf. Fed. Express Corp.,
128 S. Ct. at 1157 (rejecting challenge to agency's
interpretation under Skidmore because "[n]o clearer alternatives
are within [the Court's] authority or expertise to adopt") .

Because the plaintiffs do not challenge the Commissioner's
use of the domains to determine functional equivalence, any
interpretation they offer must account for the domains. While
the plaintiffs' briefs and expert declaration are replete with
condemnations of the Policy, they offer nothing in the way of an
alternative system that would satisfy the statute and be

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efficiently administered, using the domains. For example, the
plaintiffs' expert opines that the Commissioner's Policy fails to
consider, in the ultimate benefits determination, certain
impairments that do not lead to marked limitations in any
particular domain. He explains that "no competent clinician
would fail to include [those impairments] as a highly relevant
variable in the equation." How the SSA would consider
impairments as a "relevant variable" outside the domains, in a
system overseen by administrative law judges, not clinicians, is
unexplained. The plaintiffs' briefs are similarly

unenlightening. We are left with vague arguments that the
Commissioner could have designed a better regulatory system to
effectuate Congress's general marching orders. But "[w]here
ambiguities in statutory analysis and application are presented,
the agency may choose among reasonable alternatives." Id. at
1158.

Apart from the text, congressional purpose, and practical
considerations, other factors point in favor of the
Commissioner's interpretation. The SSA has substantial expertise
and is charged with administering a complex statute. The
agency's considerable efforts to refine the disability-
determination process for children and align it with
congressional purposes has led to "a body of experience and
informed judgment to which courts and litigants may properly

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resort for guidance." Id. at 1156 (internal quotation marks
omitted). And the plaintiffs do not contend that the
Commissioner has waffled in his interpretation of the statute or
regulations; rather, his interpretation has been consistent since
the agency implemented the 1996 amendments. See Alaska Dep't of
Envtl. Conservation v. EPA, 540 U.S. 461, 488 (2004) (upholding
agency's "longstanding, consistently maintained interpretation"
under Skidmore) .

Finally, the plaintiffs inordinately rely on the Dwyer
declaration to argue that the Policy "violates accepted clinical
standards for the evaluation of children and leads to irrational
results." We lack the authority and are ill-equipped, in
contrast to the Commissioner, to decide the best method to
determine childhood disability. Nor does the plaintiffs' expert
declaration (unaccompanied by any evidence as to actual children
who are adversely affected by the Policy or a concrete
alternative to the Commissioner's interpretation) overcome the
Commissioner's reasonable, consistent application of the statute.
We will not reject the agency's otherwise persuasive
interpretation on the say-so of a single expert armed only with
hypotheticals.

We therefore conclude that the Commissioner's interpretation
of the Act and implementing regulations, embodied in the Policy,
is entitled to deference under Skidmore.

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## CONCLUSION

For the foregoing reasons, we AFFIRM the district court's
judgment.

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-------- August Term, 2008 Argued: December 11, 2008 v. - MICHAEL J. ASTRUE, Commissioner of Social Security

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