Thursday, June 29, 2017

High School Education in Another Language is Irrelevant

Recent hearing, a claimant over the age of 50 and limited to light work lacking the ability to communicate in English -- ALJ says that claimant has a high school education in Mexico.  So what, right?  Let's look at the regulations and explanations found in POMS/HALLEX.

20 C.F.R. §§ 404.1564(b)(5); 416.964(b)(5) provides:
Inability to communicate in English. 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 and understand English to do a job, regardless of the amount of education the person may have in another language. Therefore, we consider a person's ability to communicate in English when we evaluate what work, if any, he or she can do. It generally doesn't matter what other language a person may be fluent in.
Hmm, regardless of the amount of education that the person may have and it doesn't matter what language the person is fluent in.

Accordingly, a finding of “disabled” is warranted for individuals age 45-49 who:
(i) Are restricted to sedentary work,
(ii) Are unskilled or have no transferable skills,
(iii) Have no past relevant work or can no longer perform past relevant work, and
(iv) Are unable to communicate in English, or are able to speak and understand English but are unable to read or write in English.
  There it is in subparagraph (iv) -- the inability to communicate in English or able to speak and understand English but unable to read and write along with the rest of the profile results in a finding of disability.  Appendix 2, Rule 201.17 applies even with a high school or more education in another language if the person is illiterate in English. 

Appendix 2 § 202.00(d)
Where the same factors in paragraph (c) of this section regarding education and work experience are present, but where age, though not advanced, is a factor which significantly limits vocational adaptability (i.e., closely approaching advanced age, 50-54) and an individual's vocational scope is further significantly limited by illiteracy or inability to communicate in English, a finding of disabled is warranted.
 Same analysis.  Appendix 2, Rule 202.09 applies with illiteracy or inability to communicate in English.

And we have to remember the definition of high school education. 20 C.F.R. §§ 404.1564(b)(4); 416.964(b)(4) includes the person obtaining language skills.  The regulations describe the pertinent language skills as English.  

In case anyone is confused by the regulation, POMS 25015.010 describes the issue:

When to apply illiterate or unable to communicate in English

This category applies when the claimant is unable to:
  • read a simple message (such as short instructions or inventory lists) in English,
  • write a simple message in English,
  • speak or understand a simple message in English, or
  • any combination of the above.
 A high school education in another language -- a college degree in another language -- is irrelevant to the presence of disability under Rules 201.17, 202.09, and 203.01, 203.02, 203.10. 


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