The Social Security Administration’s (SSA) Medical-Vocational Guidelines (Grids) provide that in some instances where a claimant is limited to sedentary or light work and is unable to communicate in English, the claimant is deemed disabled. The Grids also provide, however, that in some cases, the claimant’s ability or inability to communicate in English is either not relevant or results in a finding that the claimant is not disabled.
One of the foremost issues in the Social Security disability case law has been whether Grid Rules 201.23 and 202.16 (governing individuals between the ages of 18 and 44) should be applied to direct a finding of nondisability where the claimant is both illiterate and unable to communicate in English. Both Grid Rules are phrased in the disjunctive (“or”) sense, as opposed to the conjunctive (“and”) sense.
In Martinez v. Heckler, 735 F.2d 795, 796 (5th Cir. 1984) (discussed below), the Fifth Circuit held that Grid Rule 201.23 does not apply where the claimant is both illiterate and unable to communicate in English. The SSA issued Acquiescence Ruling 86-3 (5) adopting the Martinez decision in the Fifth Circuit. However, other circuits considering the same issues have determined that the above-cited Grid Rules should be interpreted to direct a finding of “not disabled” regardless of whether the claimant is either illiterate or unable to communicate in English, or both illiterate and unable to communicate in English.
Regulations
20 C.F.R. §§ 404.1564, 416.964
These regulations provide that the ability to speak, read and understand English is considered to be an educational factor. Because English is the dominant language of the country, it may be difficult for someone who does not speak and understand English to do a job, regardless of the amount of education the person may have in another language. Therefore, the SSA considers a person’s ability to communicate in English when evaluating what work, if any, he or she can do.
20 C.F.R. Part 404, Subpt. P, App. 2 § 201.00 (h)
A finding of disabled is warranted for claimants (1) who are at least 45 years of age; (2) who are restricted to sedentary work; (3) who are unskilled or have no transferable skills; (4) who have no relevant past work or who can no longer perform vocationally relevant past work; and (5) who are either illiterate or unable to communicate in the English language. On the other hand, if the claimant is under age 45, age is usually not a significant factor in limiting such an individual’s ability to make a vocational adjustment, even an adjustment to unskilled sedentary work, and even where the individual is illiterate or unable to communicate in English.
20 C.F.R. Part 404, Subpt. P, App. 2 § 201.00 (i)
While the inability to communicate in English may significantly limit an individual’s vocational scope, the primary work functions in the bulk of unskilled work relate to working with things (rather than with data or people), and in these work functions at the unskilled level, the ability to communicate in English has the least significance. The functional capability for a full range of sedentary work represents sufficient numbers of jobs to indicate substantial vocational scope for those individuals ages 18-44, even if they are unable to communicate in English.
20 C.F.R. Part 404, Subpt. P, App. 2 §§ 202.00 (c) and (d)
A finding of disabled is warranted for individuals (1) who are at least closely approaching advanced age (ages 50 to 54); (2) who can no longer perform their past work; (3) who have a history of unskilled work experience, or who have only skills that are not readily transferable to a significant range of semi-skilled or skilled work that is within the individual’s functional capacity, or who have no work experience; and (4) who are unable to communicate in English.
Rulings
Acquiescence Ruling 86-3(5) (“AR 86-3(5)”)
AR 86-3(5) provides that when illiteracy and the inability to communicate in English are both alleged or appear to be in question, the ALJ must make findings with respect to both issues. Where individuals ages 18 to 44 are limited to sedentary work, are unskilled or have no work history, and are found to be both illiterate and unable to communicate in English, Grid Rule 201.23 cannot be mechanically applied.
In addition, Grid Rule 202.16 cannot be mechanically applied to individuals who are bothilliterate and unable to communicate in English. Grid Rule 202.16 only applies to younger individuals limited to light work, who are unskilled or have no work history, and are illiterate or unable to communicate in English.
AR 86-3(5) applies only to cases in which the individual resides in Texas, Mississippi or Louisiana at the time of the determination or decision at any level of administrative review, i.e., initial, reconsideration, administrative law judge hearing or Appeals Council review.
Case Law
First Circuit
A Puerto Ricodistrict court noted that for an individual limited to sedentary work, English is a relevant factor and the availability of jobs might be significantly reduced for persons unable to understand English. Vega v. Secretary of Health and Human Servs., 582 F. Supp. 1579, 1581 (D.P.R. 1984).
Second Circuit
The Second Circuit found that the absence of findings by the ALJ on the questions of literacy and the ability to communicate in English was crucial in light of the ALJ’s determination that the claimant was only capable of sedentary work, that her work experience was unskilled in nature, and that she was 45 years old at the time of the hearing. Vega v. Harris, 636 F.2d 900, 904 (2d Cir. 1981). If the claimant was also illiterate or “unable to communicate in English,” then the Grids mandated a determination of disability. Id.
Where the record contained strong evidence of the claimant’s inability to communicate in English, the ALJ erred in determining that the claimant was able to communicate in English based on a “brief exchange” with the claimant during the hearing. Lugo v. Chater, 932 F. Supp. 497, 502 (S.D.N.Y. 1996).
Assuming that a claimant retains an RFC to perform light work, the Grids direct a finding of “disabled” for individuals who are of advanced age, have unskilled work experience, and have limited knowledge of the English language.Hierrmann v. Bowen, 669 F. Supp. 595, 598 (S.D.N.Y. 1987).
The ALJ’s mechanical application of Grid Rules 201.18 and 201.24 was inappropriate in light of the uncertainty surrounding the claimant’s English language abilities. Rodriguez v. Heckler, 621 F. Supp. 194, 198 (S.D.N.Y. 1985).
Third Circuit
In Torres, the court rejected the claimant’s argument that she was disabled under § 200.00(h) of the Grids which requires a finding of disability for individuals aged 45-49 who: (1) are restricted to sedentary work; (2) are unskilled or have no transferrable skills; (3) have no past relevant work or can no longer perform past relevant work; and (4) are unable to communicate in English, or are able to speak and understand English but are unable to read or write English. Torres v. Thompson, 274 F. Supp.2d 678 (E.D. Pa. 2003).
The district court held that Acquiescence Ruling 86-3(5) necessitated the finding that Grid Rule 201.23 applied regardless of whether the claimant was both illiterate and unable to communicate in English (i.e., just unable to communicate in English), or merely illiterate. Flecha v. Shalala, 872 F. Supp. 1312, 1316-17 (D.N.J. 1994).
Fifth Circuit
Because the claimant was both illiterate and unable to communicate in English, Grid Rule 201.23 did not apply and the Commissioner’s decision denying continuing benefits was not supported by substantial evidence.Martinez v. Heckler, 735 F.2d 795, 796 (5th Cir. 1984).
The ALJ’s cumulative failures to make and/or document the relevant inquiries regarding Plaintiff’s language abilities required remand due to the lack of substantial supporting evidence. Delgado v. Barnhart, 305 F. Supp.2d 704, 716 (S.D. Tex.2004).
Seventh Circuit
The court held that considering the testimony of the claimant and the reports of witnesses, the ALJ’s direction to the VE to assume that the claimant spoke and understood some functional English, but was not fluent, was supported by the record. Ortiz v. Chater, 986 F. Supp. 479, 488 (N.D. Ill. 1997).
Ninth Circuit
The Ninth Circuit held that the word “or” in Grid Rule 201.23 should be interpreted as conjunctive and applies to claimants who are unable to communicate in English and/or are illiterate. In such a case, a claimant who was both illiterate and unable to communicate in English would be subject to Grid Rule 201.23, providing that the claimant is not disabled if the claimant is illiterate or unable to communicate in English, but still retains residual functional capacity for sedentary work. Chavez v. Department of Health and Human Servs., 103 F.3d 849, 852 (9th Cir. 1996).
Tenth Circuit
Grid Rule 202.16 applies to individuals who are both illiterate and unable to communicate in English, as well as to claimants who are either illiterate or unable to communicate in English. Cazares v. Chater, No. Civ 6:94-CV-401MV/LCS, 1995 WL 845646, at *2 (D.N.M. Dec. 8, 1995).
Eleventh Circuit
The Commissioner erred in finding that the claimant was English literate, where the claimant testified that he was educated through the fourth grade in Cuba, and that he neither read, wrote, nor spoke English (except for being able to speak in short phrases). Reyes v. Heckler, 601 F. Supp. 34, 36-37 (S.D. Fla. 1984).