Effective April 27, 2020, the Social Security Administration (SSA) will no longer consider whether an individual is able to communicate in English at the fifth and final step of the sequential evaluation process. SSA touted its new regulations – “How We Determine An Individual’s Education Category – as a “modernization” of how it awards disability benefits. SSA claims the new rule “reflects changes in the national workforce, acknowledges the vocational advantage that formal education may provide in any language, and accounts for expansion of the international reach of our disability programs.” Numerous commenters argued otherwise in response to last year’s Notice of Proposed Rulemaking announcing these changes, but to no avail. The preamble to the new regulations outlines SSA’s justifications for these changes, including employment data that some may consider suspect.
Before the rule change, SSA’s policy read: “Since the ability to speak, read and understand English is generally learned or increased at school, we may consider this an educational factor. Because English is the dominant language of the country, it may be difficult for someone who doesn’t speak English to do a job, regardless of the amount of education the person may have in another language.” 20 C.F.R. §§ 404.1564(b)(5) & 416.964(b)(5). But SSA has removed this section. It now claims inability to communicate in English is no longer a good measure of, or proxy for, a person’s education level. So while the new regulations will continue to consider whether a claimant is illiterate, ability to read and write in another language will considered equivalent to being able to do so in English. Thus, for example, Rule 201.07 of the Medical-Vocational Guidelines, which dictated a finding of disabled for a claimant limited to sedentary work who was illiterate or unable to communicate in English has been amended to simply “illiterate.” Numerous other references to inability to communicate in English have been removed from the Medical-Vocational Guidelines at 20 C.F.R. Pt. 404, Subpt. P, App.2.
SSA’s definition of illiterate remains very circumscribed:
Illiteracy means the inability to read or write. We consider someone illiterate if the person cannot read or write a simple message such as instructions or inventory lists even though the person can sign his or her name. Generally, an illiterate person has had little or no formal schooling.
20 C.F.R. §§ 404.1564(b)(1) & 416.964(b)(1). In Social Security Ruling (SSR) 20-1p (Education as a Vocational Factor) issued in conjunction with the new rule, SSA emphasizes “We will assign an individual to the illiteracy category only if the individual is unable to read or write a simple message in any language.” [Emphasis added]. SSA emphasizes that illiteracy is considered an educational level, and thus a relevant vocational factor, whereas ability to speak English, per SSA, is not. And inability to communicate in English is not a medically determinable impairment (MDI) and thus not relevant to determination of residual functional capacity
Does this change mean inability to communicate in English is never relevant to job placement? In the preamble, SSA reiterates that under the prior rules, inability to communicate in English had no impact on disability determinations for claimants under age 45. SSA responded to commenters who argued that vocational experts would say language proficiency does affect job placement. The commenters pointed out that the Dictionary of Occupational Titles (DOT) includes a language component in its job descriptors (e.g., General Education Development levels, including language development levels). SSA acknowledged that “we did not state the ability to communicate in English is irrelevant to job placement.” But it argues that its data demonstrates individuals who speak limited or no English “are participating in the U.S. labor force at considerably higher numbers than previously.” Could there be some parts of the country, however, where vocational witnesses might actually acknowledge there would not be jobs, based on their experience, for a claimant unable to speak English? Of note, the jobs cited by SSA in which ability to communicate in English is not necessary encompass more physically demanding jobs. Arguably, there may not be as many jobs at, for example, the sedentary level available for non-English speakers. Or might a claimant’s inability to read or understand spoken instructions or inventory lists, for example, reduce the number of jobs available?
SSA’s evaluation of education levels also changes with the new rule. Most significantly, having attended school taught in another language will not be treated differently than having attended in English. SSA did acknowledge in the preamble to the new rule, however, that where a claimant received “elementary or secondary education in a language other than their primary language, the language learning process may or may not affect their actual educational attainment.” So it may still be possible to demonstrate that a claimant who completed high school in another language should be placed in lower education category (e.g., limited education), particularly if they were taught in a language in which they were not proficient.
SSA will continue to use the highest numerical grade a claimant completed as evidence of educational abilities – unless there is evidence to contradict it. At the same time, per SSA, past work experience, daily activities, hobbies, or testing results “may demonstrate significant intellectual ability that can be used to work.” 20 C.F.R. §§ 404.1564(a) & 416.964(a). SSR 20-1p acknowledges that evidence of special education may be indicative that a claimant’s abilities are lower than the grade level completed, but SSA will require specific evidence to so demonstrate. And under the SSR, a General Equivalency Diploma or General Educational Development Certificate (GED) will be treated as equivalent to a high school education.
SSR 20-1p reiterates that SSA will use this kind of other evidence to place claimants in higher or lower education categories. It repeats the educational levels of illiteracy, marginal, limited, and high school education set forth in 20 C.F.R. §§ 404.1564 & 416.964. As noted above, however, it emphasizes that a
claimant will be considered illiterate only if unable to read or write a simple message in any language. The SSR discusses at length whether completion of the fourth grade may demonstrate literacy. But illiteracy despite a fourth grade education can be proven with other evidence. The SSR gives examples of such evidence, including long term special education related to difficulty learning to read or write, lack of work history due to inability to read or write, or valid intelligence testing or reading and writing test results demonstrating inability to read or write a simple message. On the other hand, the SSR also lists evidence that might demonstrate a claimant with less than a fourth grade education is not illiterate: past work responsibilities, ability to read a newspaper or write and read shopping lists, write or read simple text messages, a driver’s license that required passing a written test, or other evidence. Advocates attempting to demonstrate illiteracy should bear in mind that New York allows a driver’s test to be read to the applicant. And of course, many simple texts are often more emojis than actual text. J
As noted above, both the new regulations and SSR 20-1p are effective April 27, 2020. Unfortunately, they will apply to all pending cases, including Continuing Disability Reviews (CDRs) as of that date, as well as claims filed on or after April 27, 2020.
Thanks to Paul Ryther and NOSSCR for their help in educating us on these new rules.