EM-21065 -- SSA Does Not Consider GED or Aptitudes -- Oh Really, Part 2

We pick up from the discussion of DPT and Temperaments earlier this week.  EM-21065 says more disturbing and misguided things about GED and aptitudes:

SSA does not use General Education Development (GED), Aptitudes, and frequency counts or percentages in adjudication.

Later, EM-21065 says: 

Only use SVP to determine the demands of work. SSA does not consider GED or Aptitudes to identify the demands of work for disability adjudication in SSA’s disability programs.

Continuing:   

SSA does not consider the descriptors of GED, Aptitudes, Work Situations (Temperaments), or Work Functions (DPT) when searching for a person’s past work or when limiting work demand requirements for a search of occupations for a TSA or occupations to cite for a framework determination or decision. We should not use these features since our policy does not use these descriptors to identify the demands of work for disability adjudication in SSA’s disability programs.

And finally: 

1. SSA does not consider the following information:

General Education Development (GED) ratings. These ratings do not correspond with SSA’s regulatory definitions of unskilled, semiskilled, and skilled work.

Aptitudes and Work Situations (Temperaments). These ratings do not represent functional requirements for work because they reflect the personal interests, natural abilities, and personality characteristics of job incumbents rather than limitations or restrictions resulting from a medically determinable impairment(s), as is required for SSA’s disability programs.

We start with GED, general educational development.  This is a specification of reasoning, mathematics, and language in the DOT trailer with a three digit code.  Appendix C of the DOT describes the category:

General Educational Development embraces those aspects of education (formal and informal) which are required of the worker for satisfactory job performance. This is education of a general nature which does not have a recognized, fairly specific occupational objective. Ordinarily, such education is obtained in elementary school, high school, or college. However, it may be obtained from experience and self-study.

GED describes the educational level required for satisfactory job performance.  These are bona fide occupational qualifications for the integral, essential, and expected job functions.  The statute commands the Commissioner to consider education.  Many unskilled jobs do require a high school education or equivalent.  It is true that GED does not correlate 1:1 to skill level.  

There are 16 DOT codes classified as semi-skilled that require reasoning level 1.  There are 1,887 DOT codes classified as semi-skilled and skilled that require reasoning level 2.  The regulations include in semi-skilled that is not academically challenging:  

A job may be classified as semi-skilled where coordination and dexterity are necessary, as when hands or feet must be moved quickly to do repetitive tasks.

Those are the exceptions.  Of the approximately 10,000 skilled and semi-skilled occupations, the majority require reasoning level 4 or higher.  Nor does correlation have to be 1:1 to be informative about the requirements of work.  

Aptitudes represents a different challenge.  As with temperaments, the aptitudes were not "selected" for inclusion in the SCO.  Aptitudes are part of the DOT dataset defined in the Revised Handbook for Analyzing Jobs.  The RHAJ defines:

Aptitudes: Capacities or abilities required of an individual in order to facilitate the learning of some task or job duty. The II Aptitudes included in this component are defined and discussed in Chapter 9.

There is that pesky description, again: required.  In Chapter 9, the RHAJ expands on the definition:

Aptitudes, a component of Worker Characteristics, are the capacities or specific abilities which an individual must have in order to learn to perform a given work activity. There are II Aptitudes used by USES for job analysis. Nine Aptitudes are measured by the United States Employment Service's General Aptitude Test Battery (GATB). Two others, Eye-Hand-Foot Coordination and Color Discrimination, have been added to these for job analysis because they are considered to be occupationally significant. Measurements for these Aptitudes have not been developed for the GATB. 

These are not nice to have, aptitudes are the ability that "an individual must have in order to learn to perform a given work activity."  Employers require aptitudes that a person must have to learn how to perform the BFOQ or essential functions of a job.  Absent those aptitudes, a person is not expected to learn how to do the job.  Aptitudes represent an educational component of work.  

SSA is not the expert agency about the requirements of work.  The Department of Labor is the expert agency about the requirements of work.  When we need information about what is and is not required in the workplace, DOL is the source of that information.  EM-21065 warrants no deference and no respect under controlling court precedent.  

_______________________

Suggested Citation:

Lawrence Rohlfing, EM-21065 -- SSA Does Not Consider GED or Aptitudes -- Oh Really, Part 2, California Social Security Attorney (June 29, 2022) https://californiasocialsecurityattorney.blogspot.com

The Ability to Communicate in English is an Incomplete Finding

After making a finding of an inability to perform past relevant work, the ALJ must assess the vocational factors -- age, education, and work experience.  The regulations use four steps of education:

(1) Illiteracy. 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.

(2) Marginal education. Marginal education means ability in reasoning, arithmetic, and language skills which are needed to do simple, unskilled types of jobs. We generally consider that formal schooling at a 6th grade level or less is a marginal education.

(3) Limited education. Limited education means ability in reasoning, arithmetic, and language skills, but not enough to allow a person with these educational qualifications to do most of the more complex job duties needed in semi-skilled or skilled jobs. We generally consider that a 7th grade through the 11th grade level of formal education is a limited education.

(4) High school education and above. High school education and above means abilities in reasoning, arithmetic, and language skills acquired through formal schooling at a 12th grade level or above. We generally consider that someone with these educational abilities can do semi-skilled through skilled work.

In paragraph 5, the Commissioner addresses the ability to communicate in English.  A Ph.D. from the Sorbonne does not implicate the ability to speak, read, and understand English -- that person gets treated as illiterate.  The Commissioner concludes that paragraph:

(5) ... 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.

 An ALJ bent on finding a basis to deny could use the ability to communicate orally in English as a paragraph 5 finding of the ability to communicate in English.  But that oral capacity does not transform the ability to read and write in English into literacy at paragraph 1.  Nor does the ability to communicate orally in English erase an educational deficit from the native country.  A person with a sixth grade education from a foreign country that possesses basic language skills in a non-English language will not likely have achieved literacy in English for SSA purposes -- reading and writing inventory lists and directions.  When the ALJ finds the ability to communicate in English, the representative must look to see if the evidence suggests both oral and literate communication.  If there is no evidence of literacy, the representative should propound that question to the vocational expert.  If the ability to read and write is marginal, then the representative should include a marginal education component in the examination (reasoning, math, and language level 1).  A limited capacity to speak, read, and understand English with demonstrated proficiency should ask for GED level 2.

One word of reminder -- reasoning level is either equal to or higher than both language and math.  Reasoning is never lower than language or math.  See the Revised Handbook for Analyzing Jobs as the taxonomy for the DOT and its other companions.