The Social Security Administration’s (SSA) Medical-Vocational Guidelines (Grids) provide that the literacy or illiteracy of certain categories of claimants can either result in a finding of “disabled” or “not disabled.” See 20 C.F.R. Pt. 404, Subpt. P, App. 2. Consequently, if a claimant appears to have trouble reading or writing in English, the Grids should be closely reviewed to determine whether the claimant’s other vocationally-relevant characteristics would direct a finding of disabled if the claimant was illiterate.
As described below, many courts have issued decisions ruling that administrative law judges improperly determined that claimants were literate and, therefore, applied the incorrect Grid Rule. [Where the claimant is both illiterate and unable to communicate in English, please see Inability to Speak English.]
Tip
Illiteracy can be established by the results of a Wide Range Achievement Test (WRAT), Wechsler Individual Achievement Test (WIAT), or the Woodcock-Johnson Psychoeducational Battery–Revised: Tests of Achievement (WJ-R ACH).
Regulations
20 C.F.R. §§ 404.1564, 416.964
20 C.F.R. §§ 404.1564(a), 416.964(a) states that past work experience and the kinds of responsibilities the claimant had when working may show intellectual abilities, although the claimant may have little formal education. The regulations also stated that formal education that was completed many years before the claimant’s impairment began, or unused skills and knowledge that were a part of a claimant’s formal education, may no longer be useful or meaningful in terms of a claimant’s ability to work. 20 C.F.R. §§ 404.1564(b), 416.964(b). The regulations define illiteracy as “the inability to read or write.” 20 C.F.R. §§ 404.1564(b)(1), 416.964(b)(1). The SSA considers 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. Id. The regulations specifically require that SSA ask how long the claimant attended school and whether s/he is able to speak, understand, read and write in English and do at least simple calculations in arithmetic. 20 C.F.R. §§ 404.1564(b)(6), 416.964(b)(6).
20 C.F.R. Pt. 404, Subpt. P, App. 2 (Grids), § 201.00(h)
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, a finding of disabled is warranted. On the other hand, if the claimant is under age 45, age is usually not a significant factor in limiting the 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. Pt. 404, Subpt. P, App. 2 (Grids), § 201.00(h)(1)
While illiteracy or the inability to communicate in English may significantly limit an individual’s vocational profile, 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 age 18-44, even if they are illiterate or unable to communicate in English.
20 C.F.R. Pt. 404, Subpt. P, App. 2 (Grids), §§ 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 illiterate or unable to communicate in English.
Rulings
Acquiescence Ruling 86-3(5) (“AR 86-3(5)”)
Issued in response to Martinez v. Heckler, 735 F.2d 795 (5th Cir. 1984), 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, the lowest category of the Grid regulations that might be applied, namely Grid Rule 201.23, cannot be mechanically applied. In addition, Grid Rule 202.16 cannot be mechanically applied to individuals who are both illiterate and unable to communicate in English.
This ruling 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, ALJ hearing or Appeals Council review.
Resources
HALLEX I-5-3-12, Evaluation of Illiteracy (June 1994)
The adjudicator is required to determine educational abilities based on the claimant’s numerical grade of education completed, unless there is contradictory evidence. Contradictory evidence that could indicate possible illiteracy may be found in medical reports, reports of field office personnel, work history reports, etc. HALLEX I-5-3-12(A)
HALLEX I-5-3-12(B) provides that adjudicators should be aware that claimants who may not recognize the relevance of their illiteracy may attempt to hide it. If an ALJ has reason to believe that an individual may be illiterate, but the evidentiary record does not clearly show literacy or illiteracy, the ALJ may want to ask the individual at the administrative hearing to read and write a simple message, in addition to eliciting testimony on the issue. Any writing obtained from the individual at the hearing should be entered as an exhibit. It is also appropriate to obtain any available school records or any other evidence that would bear on the issue.
Development of illiteracy may be especially important to the case when the issue has a direct bearing on which Grid Rule applies. Specifically, Grid Rules 201.17 and 202.09 direct a conclusion of disability when a claimant is illiterate and the other medical and vocational factors are identical to the cited rule. However, the same claimant who is at least literate and able to communicate in English would be found not disabled under Grid Rules 201.18 and 202.10. The ALJ should give careful consideration to the need to develop possible illiteracy when considering whether Rule 201.18 or 202.10 applies to direct a conclusion.
Case Law
Second Circuit
The ALJ improperly considered the prospects for sedentary job employment in light of the claimant’s inability to speak English and his possession of only a fifth grade education.Minuto v. Secretary of Health and Human Servs., 525 F. Supp. 261, 265 (S.D.N.Y. 1981).
Third Circuit
Where the claimant’s past work necessarily involved comprehension and evaluation of written documents, and the claimant admitted to having completed the seventh grade, the court found that the ALJ properly concluded that the claimant was literate. Tavoletti v. Sullivan, 732 F. Supp. 578, 581-82 (W.D. Pa. 1989).
Fourth Circuit
The district court found that the ALJ’s finding that a claimant had a limited education was not supported by substantial evidence when the claimant had attended school through the sixth grade but the transcript reflected evidence of his functional illiteracy and his limited ability to do simple arithmetic or to count. Freeman v. Harris, 509 F. Supp. 96, 101 (D.S.C. 1981).
Fifth Circuit
In Martinez v. Heckler, 735 F.2d 795 (5th Cir. 1984), the Fifth Circuit held that in cases where a “claimant is both illiterate and unable to communicate in English, he does not fall within the criteria set out in Rule 201.23.” Id. at 797. This Rule is applicable in those cases where a claimant can perform sedentary work, is illiterate or unable to communicate in English, is 18 to 44 years old and has an unskilled work history or no work history. Id. at 796. Thus, the court remanded to determine whether or not the claimant was unable to communicate in English. Id. at 797.
The Fifth Circuit found that the ALJ erroneously determined that the claimant was literate (despite evidence that the claimant could not read or write) and, therefore, applied an incorrect Grid Rule. Albritton v. Sullivan, 889 F.2d 640, 643 (5th Cir. 1989).
A Texas district court noted that as a consequence of Martinez v. Heckler, 735 F.2d 795 (5thCir. 1984), “ALJs in this circuit are instructed that, ‘when illiteracy and inability to communicate in English are alleged or appear to be in question, findings with respect to both issues must be made.’”Delgado v. Barnhart, 305 F. Supp.2d 704, 715 (S.D. Tex. 2004), citingAR 86-3(5)). As an accurate assessment of the claimant’s literacy and ability to communicate in English were deemed critical to a proper assessment of the claimant’s educational level, and since the ALJ failed to employ the appropriate legal and procedural standards in assessing his educational level, substantial evidence did not support the ALJ’s finding that the claimant had a limited education. Id. at 718.
The sole issue before the court in Jimmerson was whether the claimant was illiterate. Jimmerson v. Apfel, 111 F. Supp.2d 846, 849 (E.D. Tex. 2000). In Jimmerson, the claimant presented abundant testimony regarding his illiteracy, including a witness who had known the claimant for ten years offered corroborating testimony that he had personal knowledge of the claimant’s inability to read and write. The ALJ rejected this uncontradicted evidence of illiteracy, in part, based on the fact that since the claimant attended high school through the tenth grade, it was “highly unlikely” that he “could proceed to that level of education and be illiterate.” Id. However, the court stated that it was “clear” that the claimant’s past level of education was not dispositive of the issue of his alleged illiteracy. Id. The court concluded that the record revealed that whatever schooling the claimant may have received was “no longer meaningful and did not represent his educational abilities in the face of uncontradicted evidence that he was functionally illiterate.” Id., citing Albritton v. Sullivan,889 F.2d 640, 643 (5th Cir. 1989). See also Bridges v. Commissioner of Social Sec. Admin. 278 F. Supp.2d 797, 806-807 (N.D. Tex. 2003) (holding that the ALJ’s omission of illiteracy from the hypothetical question, “although not obviously defective at the time of the hearing, rendered his hypothetical questions defective upon the Appeals Council’s receipt of evidence of Plaintiff’s illiteracy”).
Sixth Circuit
The claimant was determined to be functionally illiterate, despite the fact that he had a sixth grade education. Conn v. Secretary of Health and Human Servs., 51 F.3d 607, 609 (6th Cir. 1995).
Despite “overwhelming evidence” of the claimant’s illiteracy, the ALJ erroneously concluded that the claimant possessed a marginal education and was not disabled. Skinner v. Secretary of Health & Human Servs., 902 F.2d 447, 450 (6th Cir. 1990). Had the ALJ properly found the claimant illiterate, the Grids would have directed the ALJ to award the claimant benefits. Id.
Even though the claimant had a seventh grade education, a Michigan district court concluded that substantial evidence did not support the ALJ’s conclusion that the claimant had a limited education, as the evidence strongly supported the conclusion that the claimant was illiterate. Boone v. Sec’y of Health & Human Servs., 595 F. Supp. 758, 759-760 (E.D. Mich. 1984). In so holding, the court cited to the claimant’s testimony that he could not read or write, could not write a letter or a note, could not read the newspaper, and that his daughter had to read a letter for him. Id. at 760. The court also found that “this evidence of illiteracy is further buttressed by the record which is replete with references indicating that plaintiff’s forms and applications were completed by others and that plaintiff needs his daughter’s assistance in processing his claim.” Id. See also Young v. Comm’r of Soc. Sec., 351 F. Supp.2d 644, 648 (E.D. Mich. 2004) (noting that the claimant was functionally illiterate, given his testimony that while he could make out a grocery list, he was unable to obtain a driver’s license in Iowa because he could not take the written test).
A Tennessee district court remanded for reevaluation based on the correct educational level where the ALJ erroneously found that the claimant had a high school education, when in fact, the claimant only had a tenth grade education with reading and arithmetic abilities at the third grade level. Field v. Apfel, 34 F. Supp.2d 1081, 1091-92 (W.D. Tenn. 1998).
“Illiteracy” was intended to be included in the education component of Grid Rule 201.19. Welchance v. Bowen, 731 F. Supp. 806, 811 (M.D. Tenn. 1989). If such had not been the intent, the drafters would have used the same language they used in Rule 201.18. Id.
Seventh Circuit
The Seventh Circuit determined that the ALJ properly found that the claimant was literate, as described in the regulations. Glenn v. Secretary of Health & Human Servs., 814 F.2d 387, 391 (7th Cir. 1987).
In Yourek v. Barnhart, 334 F. Supp.2d 1090 (N.D. Ill. 2004), the court held that the ALJ had an obligation to develop a complete record once the claimant had raised the issue of his potential illiteracy. Id. at 1093. The court noted that neither the ALJ nor the claimant’s counsel “made any attempt to ascertain Mr. Yourek’s literacy level by asking him to perform such tasks as reading a brief article or writing a note.” Id. As the ALJ’s determination regarding the claimant’s literacy level was not supported by substantial evidence, and as the literacy issue was crucial to the disability determination, the court remanded for re-evaluation of the claimant’s literacy level. Id. at 1093-94.
An Illinois district court held that there was substantial evidence in the record that the claimant was not illiterate. Briscoe ex rel. Taylor v. Barnhart, 309 F. Supp.2d 1025, 1041-42 (N.D. Ill. 2004). In so holding, the court noted that even though the claimant testified that he could not read or write well, and that he could not understand a lot of words when attempting to read a newspaper, “[a]n inability to read or write well, or an inability to understand words in a newspaper, does not necessitate a finding that Plaintiff was unable to perform minimal literary endeavors similar to writing simple messages such as instructions or inventory lists.” Id., citing 20 C.F.R. § 404.1564. Additionally, the court cited to the claimant’s testimony that he can read and write a “little bit, and when he does read, he likes to read the newspaper.” Id. Thus, the ALJ was not required to find the claimant disabled under Rule 202.09 of the Grids. Id. at 1041-42.
Eighth Circuit
In Wilcutts v. Apfel, 143 F.3d 1134, 1137 (8th Cir. 1998), the second ALJ in the case determined the claimant was not illiterate partly because he achieved an IQ score of 86, finding that, “[t]his performance is impossible for an illiterate person.” The Eighth Circuit held that the ALJ mistakenly viewed the WAIS-R as a test of a person’s ability to read and write. The court also emphasized several factors that supported the finding that the claimant was illiterate: (1) the claimant had testified at the first hearing that he could not read or write; (2) his doctor and the SSA worker observed that the claimant could not read; (3) the claimant’s wife corroborated his testimony that he could not read; and (4) the VE testified that illiteracy would have a significant impact on the claimant’s ability to work. Id. The court remanded the case to the Commissioner for further testing to settle the question of the claimant’s literacy, stating:
Tests such as the Wechsler Individual Achievement Test (WIAT), the Wide Range Achievement Test 3 (WRAT3), or the Woodcock-Johnson Psychoeducational Battery–Revised: Tests of Achievement (WJ-R ACH), are designed to measure people’s ability to, among other things, read and write.
Id. at 1138, citing Otfried Spreen & Esther Strauss, A Compendium of Neuropsychological Tests, Administration, Norms, and Commentary 161 (2d ed. 1998).
In Holz, the Eighth Circuit directed the Commissioner to consider, on remand, whether the Medical-Vocational Guidelines, “to the extent they are instructive, direct or suggest a finding of disability in the particular circumstances of this case.” Holz v. Apfel, 191 F.3d 945, 947 (8thCir. 1999). The court noted that the claimant was between the ages of 47 to 49 during the relevant period, could not perform his past relevant work, had no transferrable skills, was physically limited to sedentary work, and had an IQ of 76 and a limited ability to read and write and may be illiterate or “nearly so.” Id. See also Muncy v. Apfel, 247 F.3d 728, 735 (8thCir. 2001) (directing the Commissioner to consider, on remand, whether the Medical-Vocational Guidelines “suggest a finding of disability in the particular circumstances of this case,” noting that the claimant was illiterate, could not write or manage his own finances, could not perform his past relevant work, has no relevant skills, and is physically limited to light work).
In Howard, the claimant argued that she was illiterate, which the court noted would support a finding of disabled even if the claimant could perform light work. Howard v. Massanari, 255 F.3d 577, 584 (8th Cir. 2001), citing 20 C.F.R. Part 404, Subpt. P, App. 2, § 201.09. The court determined that as the “literacy question [was] crucial, the ALJ should have developed a stronger record on this point.” Id., citing Wilcutts v. Apfel, 143 F.3d 1134, 1137-38 (8th Cir. 1998). However, the Eighth Circuit held that “[i]n the final analysis,” the fact that the ALJ failed to develop “more robust proof of literacy (or illiteracy)” was not “fatal” to the Commissioner’s decision since the record included evidence that the claimant had the ability to read, and, “given our deferential standard of review,” the evidence was sufficient to support the ALJ’s conclusion that the claimant was functionally literate. Id. at 584-85.
The Eighth Circuit commented that a finding that a claimant has the ability to read and write only very simple messages could preclude an award of disability benefits. Mitchell v. Shalala, 48 F.3d 1039, 1042 (8th Cir. 1995), citing Starks v. Bowen, 873 F.2d 187, 190 (8th Cir. 1989) (concluding that although the claimant could only read and write “poorly,” substantial evidence supported the Commissioner’s finding that he was literate). See also Foreman v. Callahan, 122 F.3d 24, 27 (8th Cir. 1997) (remanding for further proceedings where a claimant suffered from borderline intellectual functioning, a learning disability which required special instruction, and “very limited” ability to read and write).
Limited education, generally considered to have ended at 7th grade through 11th grade, is defined as the ability to perform “reasoning, arithmetic, and language skills, but not enough to allow a person with these educational qualifications to do most of the more complex job skills needed in semi-skilled or skilled jobs . . . .” Shelton v. Chater, 87 F.3d 992, 995 (8th Cir. 1996). In Shelton, the Eighth Circuit found that the ALJ properly developed the record regarding literacy, and affirmed the ALJ’s finding that the claimant was literate with a limited education. Id. See also Loving v. Dep’t of Health & Human Servs., 16 F.3d 967, 971 (8th Cir. 1994) (rejecting a psychologist’s conclusion that the claimant was functionally illiterate where the conclusion of functional illiteracy was contradicted by the claimant’s own testimony about his reading activities).
In Hensley v. Barnhart, 352 F.3d 353 (8th Cir. 2003), the court held that although there might not be substantial evidence in the record to support the ALJ’s finding that the claimant has at least an eighth-grade education and was not illiterate, any resulting error was harmless. Id. at 357.
A Missouri district court reversed and remanded for further examination and expansion of the record because the ALJ made inconsistent findings regarding literacy evidence without explanation. King v. Apfel, 991 F. Supp. 1101, 1104 (E.D. Mo. 1997). The court noted that the claimant’s disability claim was based in part on his illiteracy, and that his application form indicated he needed assistance because he could not read or write. Id. Additionally, since the claimant testified that he knew only “little words,” and could write “a few” of them, and that he could not complete a job application, there was at least some “evidence to contradict” the presumption of language skills high enough to be associated with a marginal education. Accordingly, it was not permissible to base the claimant’s education entirely on his grade level, as the ALJ apparently did. Id. at 1105, citing Smith v. Shalala, 46 F.3d 45, 46 (8th Cir. 1995); Walston v. Sullivan, 956 F.2d 768, 771-72 (8th Cir. 1992). The court concluded that there was no evidence the claimant could write a simple message, and that the record “simply does not provide enough evidence to allow the court to determine on what basis the ALJ discredited plaintiff’s claims, and whether substantial evidence supports the finding.” Id. at 1106.
In Anderson v. Callahan, 981 F. Supp. 1258 (E.D. Mo. 1997), the court questioned the claimant’s alleged illiteracy because: (1) he was not observed to have problems reading and writing at his initial disability interview; (2) he had obtained jobs and a driver’s license; (3) he did not allege that difficulty reading and writing caused him to lose any of his jobs; and (4) he did not allege illiteracy as a disabling condition in either his application for disability benefits or his request for reconsideration. Id. at 1268-69.
Ninth Circuit
In Pinto v. Massanari, 249 F.3d 840 (9th Cir. 2001), the court noted that the ALJ’s failure to clarify how the claimant’s language and literacy abilities factored into his analysis that she could perform her past relevant work, “given that the Dictionary of Occupational Titles description required language ability above that possessed by Pinto.” Id. at 846. As the Ninth Circuit explained:
Illiteracy seriously impacts an individual’s ability to perform work-related functions such as understanding and following instructions, communicating in the workplace, and responding appropriately to supervision. These are all factors that Social Security Ruling No. 96-8p requires an ALJ to consider when determining whether a claimant has the residual functional capacity to perform past relevant work. Here the ALJ, although noting Pinto’s limitation in both his findings of fact and hypothetical to the vocational expert, failed to explain how this limitation related to his finding that Pinto could perform her past relevant work as generally performed. See SSR 82-62.
We do not suggest that applicants who are illiterate are entitled to a finding in step four of the disability proceeding that they are disabled. A claimant is not per se disabled if he or she is illiterate. We merely hold that in order for an ALJ to rely on a job description in the Dictionary of Occupational Titles that fails to comport with a claimant’s noted limitations, the ALJ must definitively explain this deviation. Neither the ALJ nor the vocational expert addressed the impact of Pinto’s illiteracy on her ability to find and perform a similar job.
Id. at 846-847 (citation omitted). The court also noted that a claimant who can only speak Spanish is considered illiterate. Id. at 846 n. 4. The court observed that “[i]lliteracy seriously impacts an individual’s ability to perform work-related functions such as understanding and following instructions, communicating in the workplace, and responding appropriately to supervision” and these are all factors that SSR 96-8p “requires an ALJ to consider when determining whether a claimant has the residual functional capacity to perform past relevant work.” Id.
The Ninth Circuit noted in Silveira v. Apfel, 204 F.3d 1257 (9th Cir. 2000) that the Commissioner bears the burden of establishing that the claimant is literate. Id. at 1261. In Silveira, the court remanded the case for further proceedings, finding that the ALJ made no express finding that the claimant was literate in English, and the record lacked sufficient evidence to determine this issue. Id. at 1261-62.
In 1996, the Ninth Circuit held that the word “or” in Grid Rule 201.23 should be interpreted as conjunctive and applied to claimants who are unable to communicate in English and/or are illiterate. Chavez v. Department of Health & Human Servs., 103 F.3d 849, 852 (9th Cir. 1996). In such a case, a claimant who was both illiterate and unable to communicate in English, and had the RFC for sedentary work, would be subject to Grid Rule 201.23, providing that a claimant who is illiterate or unable to communicate in English is not disabled. Id.
Tenth Circuit
The Tenth Circuit held that the ALJ’s determination that the claimant was literate was not based on substantial evidence, and was based solely on the ALJ’s unsubstantiated inference derived from the claimant’s previous employment that the claimant could read and write. Eggleston v. Bowen, 851 F.2d 1244, 1248 (10th Cir. 1988).
Because the Commissioner’s determination was based on an unsupported finding and the applicable Grid factors did not coincide with a particular rule, the Tenth Circuit remanded the case to determine whether there were jobs in the national economy that the claimant could perform taking into account his illiteracy. Id.
The Tenth Circuit found a claimant to be illiterate where he had completed eight years of formal schooling and could sign his name, but where the record contained “absolutely no evidence” of literacy. Dollar v. Bowen, 821 F.2d 530, 535 (10th Cir. 1987).
The ALJ’s determination that the claimant was literate was not based on substantial evidence where the record contained evidence that the claimant could not write, even though she could read (minimally). Dixon v. Heckler, 811 F.2d 506, 510 (10th Cir. 1987).
In Espinosa v. Sec’y of Health & Human Servs., 565 F. Supp. 810 (D. Kan. 1983), the court held that there was “not a scintilla of evidence, much less substantial evidence” for the ALJ’s finding that the claimant was “not illiterate.” Id. at 815. The court noted that the record was “replete with evidence of plaintiff’s difficulty with spoken, much less written, evidence,” including the fact that the claimant testified that he could not read English; his education was limited to the second grade in Mexico; and there was “no evidence of record that he could read English at all.” Id.
A Kansas district court rejected a claimant’s contention that he was functionally illiterate, noting that he was able to read a booklet to obtain his driver’s license, was able to work as a security guard, had completed several hours of vocational education, had spent time in the military, and had some college credits. Ross v. Chater, 930 F. Supp. 1452, 1455 (D. Kan. 1996).
Eleventh Circuit
In Wolfe v. Chater, 86 F.3d 1072 (11th Cir. 1996), the Eleventh Circuit held that substantial evidence did not support the ALJ’s finding that the claimant possessed marginal education and had a reading and spelling level just below the third grade level or in the second grade level of functioning. Id. at 1076. The court looked to other circuits for guidance on this issue, noting that: (1) the Eighth Circuit has held that being able to sign one’s name does not make one literate and that one can be illiterate even if one had a significant amount of formal schooling; (2) the Sixth Circuit has held that a person who reads and writes at the third grade level is functionally illiterate; and (3) the Tenth Circuit has held that, especially in cases where many years have passed since the completion of formal education, the numerical grade level completed in school may not be representative of actual educational abilities. Id.at 1076-77, citing Glenn v. Sec’y of Health & Human Servs., 814 F.2d 387, 390 (7th Cir. 1987); Skinner v. Sec’y of Health & Human Servs., 902 F.2d 447, 449 (6th Cir. 1990); Dixon v. Heckler, 811 F.2d 506, 509-10 (10th Cir. 1987). Because the determination of illiteracy affected the application of the Grids, the Eleventh Circuit remanded the matter for additional evaluation as to whether the claimant was illiterate or marginally educated. Id. at 1079-80 n.7.
An Alabama district court held that the ALJ properly found that the claimant was not illiterate, despite his testimony that he had failed the fifth and sixth grades and completed the seventh grade and testified that he could not read or write. McCray v. Massanari, 175 F. Supp.2d 1329, 1333 (M.D. Ala. 2001). The court noted that the ALJ considered other evidence, including the claimant’s “previous work at a semi-skilled level requiring technical knowledge or skills and supervisory responsibility.” Id., citing 20 C.F.R. § 404.1564(a).
In Lipson v. Barnhart 347 F. Supp.2d 1182 (M.D. Ala. 2004), the claimant argued that remand was required in light of a conflict regarding her education, citing in part, the findings of a psychologist who stated that his assessment revealed that she was illiterate. Id. at 1186. The court noted that this psychologist’s results were contradictory because he also found that the claimant could read, “albeit at less than the third grade level.” Id.at 1187. Furthermore, by the claimant’s own account, she can read, and she can also write, as she “completed a great portion of the materials in her application and supplements that are part of this record.” Id.Furthermore, the psychologist’s assessment made no findings regarding “the impact of Lipson’s reading skills and intellectual functioning upon her ability to perform vocational tasks.” Id. Thus, the court affirmed the ALJ’s finding that the claimant completed the tenth grade. Id. at 1188.