Is Eliminating the Ability to Communicate in English Entitled to Chevron Deference?

 As we always do, we start with the statute.  Social Security Act section 223(d)(2)(A) states that:

An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country. 

42 U.S.C. § 423(d)(2)(A) (emphasis added). Congress gives broad authority to the Commissioner to construe the statute.  Social Security Act section 205(a) states that:

The Commissioner of Social Security shall have full power and authority to make rules and regulations and to establish procedures, not inconsistent with the provisions of this title, which are necessary or appropriate to carry out such provisions, and shall adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder.

42 U.S.C. § 405(a) (emphasis added).  Prior to February 25, 2020, the Commissioner defined one of the educational categories as:

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.

20 C.F.R. § 404.1564(b)(5) (2019).  Paragraph (b)(5) is gone.  20 C.F.R. § 404.1564(b)(5) (2020).  The Commissioner explains:

When this final rule becomes effective, we will no longer consider whether an individual is able to communicate in English at the fifth and final step of the sequential evaluation process (step 5).

85 Fed. Reg. 10586, 10587 (Feb. 25, 2020). 

Can an administrative agency promulgate whatever regulations it wants?  No.  The courts determine what the law is.  The courts defer to the Commissioner’s rules and regulations interpreting the statute.  Chevron USA Inc. v. NRDC.  Chevron establishes a two-step framework:  (1) has Congress directly spoken on the issue; and (2) is the interpretation based on a permissible construction of the statute.  467 U.S. 837, 842-44. 

The statute requires the agency to consider education.  That explicit mandate requires that: consideration of the ability to engage in substantial gainful activity in light of age, education, and work experience.  To effectuate that mandate, the Commissioner promulgated the medical-vocational guidelines in 1978.  The dearth of education makes no difference for younger individuals below the age of 45.  Educational disadvantages for literacy kick in at age 45 and still do.  Appendix 2, Rules 201.17, 202.09, 203.01.  Limited education matters at advanced age and the absence of past relevant work.  20 C.F.R. § 404.1562(b), Appendix 2, Rule 203.10.  Clearly education matters and matters more the older the claimant has gotten. 

The comments and the responses are directed at a misperception of xenophobia or racism; that the rules about the ability to communicate in English paint non-English speakers as non-contributory, unable to work, or some other negative connotation.  The guidelines never did what the commenters or the agency presents.  Rather, the rules treated non-English speakers as if they were five years older.  But the Commissioner is entitled to latitude and that warrants examination in the micro of a single person, not the macro of every non-English speaker in the nation. 

Assume a person that is 50 years old, limited to light work, and can occasionally use the hands for handling and fingering.  The person does not read and write in English and fumbles through oral English.  By fumbles, I mean well enough to get by but not well enough to conduct someone else’s business or the bona fide occupational qualifications require dealing with people.  The person has a high school education in another country.  We know the drill, the vocational expert will likely identify usher, counter clerk, and furniture-rental clerk. 

Those jobs do not exist in significant numbers but furniture-rental clerk is a mess thanks in large part to erroneous industry designations in Job Browser Pro.  Back to the main point, can a person unable to communicate in English or illiterate in English perform those jobs?  The agency continues is illicit affair with the DOT/SCO, so we indulge that fantasy – that the DOT/SCO is reliable when contradicted by the O*NET just because the Department of Labor says so, after all Labor publishes(ed) both.  First, it is not clear whether the DOT describes bona fide occupational qualifications or essential job functions.  Essential job functions is part of the ADA analysis.  The distinction makes no difference under Social Security Ruling 00-1c.  I assume BFOQ. 

Ushers, counter clerks, and furniture-rental consultants require frequent talking and hearing.  The SCO defines those concepts:

TALKING: Frequently

Expressing or exchanging ideas by means of the spoken word to impart oral information to clients or to the public and to convey detailed spoken instructions to other workers accurately, loudly, or quickly. In Part A, the rating for the Talking component appears second in the second set of Physical Demand ratings under the vertical heading Ta.

HEARING: Frequently

Perceiving the nature of sounds by ear. In Part A, the rating for the Hearing component appears third in the second set of Physical Demand ratings under the vertical heading He.

SCO Appendix C. 

Ushers require significant worker functions of serving people:  attending the needs or requests of people or animals or the expressed or implicit wishes of people with immediate response involved. 

Counter clerks require significant worker functions of speaking  or signaling people:  talking with and signaling people to convey or exchange information including giving assignments and directions to helpers or assistants. 

Furniture-rental consultants require significant worker functions of persuading people: influencing others in favor of a product, service, or point of view.  DICOT Appendix B. 

Ushers and counter clerks require below average verbal aptitude but that excludes the bottom 10% of the population.  Furniture-rental consultants require average verbal aptitude.  DICOT dataset, aptitudes, Revised Handbook for Analyzing Jobs. 

All three occupations require dealing with people: involves interpersonal relationships in job situations beyond receiving work instructions. DICOT dataset, temperaments, Revised Handbook for Analyzing Jobs. 

Just based on the DOT/SCO, the inability to communicate in English precludes those jobs.  Having never receive the education to learn English, that person lacks the BFOQ to perform other work as an usher, counter clerk, or furniture-rental consultant in large portions of the country.  I don’t speak enough Spanish to communicate effectively with someone, which upsets my Spanish-speaking wife. I project my own failing on the majority of the American population.  Not understanding English is a detriment. 

Consider a second hypothetical person with the same age, education, and work experience with a limitation to no fast-paced work such as production or packing, and no standing more than six hours in a day.  That set of limitations wipes out production and packing work.  The standing/walking limitation precludes maids and janitors (all the cleaning occupations, it is a lie that they sit two hours a day).  That leaves clerical and other service related industries. 

While speaking English may not be a BFOQ for production, packing, inspecting, or cleaning, the inability to read and write proficiently in English eliminates clerical and paperwork related jobs.   

Taking office helper as an example, office helpers require copying data: transcribing, entering, or posting data.  Office helpers require occasional talking and hearing.  Office helpers require below average verbal aptitude.  Office helpers require the ability to perform a variety of duties involving frequent changes of tasks involving different aptitudes, technologies, procedures, working conditions, physical demands, or degrees of attentiveness without loss of efficiency or composure – the involvement of the worker in two or more work fields may be a clue that this temperament is required.  The absence of the ability to read and write or to communicate orally in English will eliminate jobs. 

The Occupational Outlook Handbook reinforces that concept:  the occupational group of couriers and messengers typically requires a high school diploma or equivalent.  The employment projections state that 8.1% of couriers and messengers lack a high school education or equivalent.  The O*NET informs that couriers and messengers deal with external customers in 77% of jobs.  The O*NET Resource Center states that couriers and messengers do not require a high school diploma or equivalent in 3.28% of jobs.  Whether a diploma in another language suffices to fill the education requirements of these jobs does not answer the BFOQ question of dealing with people in a time constrained business environment. 

What the Commissioner has done is take administrative notice that the inability to speak and understand English or the inability to communicate in English will not preclude work under rules 201.17, 202.09, and 203.01.  Fair enough.  In the broad scheme of work, the inability to communicate either orally or in writing in English is not a death knell to employability.

In the micro of an individual claim, a litigant must be given adequate opportunity to respond to the Commissioner’s taking of official or administrative notice.  Heckler v. Campbell.  The individualized consideration of the particulars of any one case matters in some cases.  The Commissioner may be right – perhaps most jobs do not require either oral or written English proficiency.  But the Commissioner is clearly wrong – some jobs do require either oral or written English proficiency. 

Based on Campbell and the nature of the rulemaking promulgated by the Commissioner in amending the education regulation and three rules as a matter of administrative notice of facts, the courts should not defer to the exclusion of proficiency in either oral or written English in every case as a matter of law.  That broad conduct and preclusion of evidence that in this case it matters does not warrant Chevron deference.    

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Suggested Citation:

Lawrence Rohlfing, Is Eliminating the Ability to Communicate in English Entitled to Chevron Deference?, California Social Security Attorney (March 20, 2021)  https://californiasocialsecurityattorney.blogspot.com/2021/03/is-eliminating-ability-to-communicate.html

Larson v. Saul and Skidmore Deference

 When you cannot possibly sleep at night and need a brain game as a complete distraction from the world, the deference doctrine is a good choice.  This is the Chevron watershed that stands at the heart of administrative law in the last 35 years. Deference is the doctrine that fills in the gaps where the law is ambiguous by a publication from the agency that is not law.  Deference to a statutory construct is the core of Chevron deference.  

If a statute is genuinely ambiguous, the path opens for the executive agency to interpret the statute.  Chevron, U.S.A., Inc v. Nat. Res. Def. Council, Inc..  The courts will defer to the agency's construction of the statute unless plainly erroneous or inconsistent with the statute.  

If a regulation is ambiguous, the agency can interpret is own lack of clarity.  Kisor v. Wilkie.  The courts will defer to the agency's construction of the regulation unless plainly erroneous or inconsistent with the statute or regulation.  

But when the statute is ambiguous and either the regulations do not interpret the statute or Congress did not delegate to the agency, full-blown deference under Chevron or Kisor does not attach.  Then the agency gets the power to persuade deference.   Skidmore v. Swift & Co.

Enter Larson v. Saul and the Windfall Elimination Provision of the Social Security Act.  42 U.S.C. § 415(a)(7).  The Eighth Circuit decided Petersen v. Astrue, finding that the WEP did not apply to dual status technicians (civilian workers that are members of the uniformed services).  The COSS responded to Petersen with Acquiescence Ruling 12-1(8).  POMS 00605.380 regurgitates the ruling.  

After the publication of Peterson, the ruling, and POMS, three other circuits weighed in on the dual service technician issue.  In the Eleventh Circuit, Martin v. Social Security Administration Commissioner  relied at least in part on Skidmore deference to agree with the COSS.  The Sixth and Tenth Circuits did not get past the step one question (is the statute ambiguous) to require resort to a deference doctrine.  Babcock v. Soc. Sec. Comm'r; Kientz v. Comm'r, SSA. 

Larson rejected the non-ambiguity findings of Babcock and Kientz.  Larson found the WEP provisions truly ambiguous and that both the claimant and the COSS made reasonable arguments for the construction of the statute.  Based on that equipoise, Larson granted Skidmore deference to the ruling and POMS.  Larson's benefits were subject to the windfall elimination provision of the Act.  

There are two problems with the grant of deference by the Ninth and Eleventh Circuits.  The administrative state makes a decision about whether dual service technicians without input from the stakeholders and weighing of policy considerations in public.  Without notice and comment, the legislation by administrative fiat should not form part of the social contract.  Second, Congress punted.  Congress either did not consider in the statute whether dual service technicians would get unreduced Social Security benefits or did not want to make that decision public for fear of retribution by voters impacted by the WEP.  Members of Congress have plausible deniability in the effectuation of a statute on constituents.  

The four circuits and the COSS create another problem.  Dual service technicians should move to geographic boundaries of the Eighth Circuit before applying for Social Security retirement or disability benefits.  A national program lacks uniform application across the country.  But that is the nature of every Acquiescence Ruling that cabins a decision to a circuit -- a lack of uniform application of a national standard to residents of different states.  Nor is this the kind of problem that will ever get before the Supreme Court to resolve the split in the circuits.  It is not likely that any of the remaining circuits will ever disagree with the duo of decisions disagreeing with Petersen or the duo of decisions yielding under the deference doctrine to cabin Petersen to the Eighth Circuit.  

The practice pointer is simple.  A claimant for benefits in the dual service technician role should move to the Eighth Circuit before applying for benefits.  A concern for uniform application of a statute should prompt the agency to rescind the Acquiescence Ruling  and POMS with a regulation that addresses the problem and move forward with a request for Brand X deference.    

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Suggested Citation:

Lawrence Rohlfing, Larson v. Saul and Skidmore Deference, California Social Security Attorney (August 27, 2020) http://californiasocialsecurityattorney.blogspot.com/2020/08/larson-v-saul-and-skidmore-deference.html