Pong Chulira, 7th Circuit NOSSCR Member

In its Equity Action Plan, the SSA expresses its commitment to serving all Americans, regardless of their ability to communicate in English. However, the way SSA handles claims from individuals who cannot communicate in English raises questions about the sincerity of its equity goals.

For over four decades, SSA acknowledged the challenges faced by individuals who do not speak or understand English, particularly those aged 45 or older. SSA recognized that older, non-English speaking workers found it more difficult to achieve the fluency necessary for new employment opportunities.  For example, Rule 201.17 of the Medical-Vocational Guidelines, dictated a finding of disabled for a claimant limited to sedentary work who was illiterate or unable to communicate in English.

That all changed in early 2020, when SSA adopted new regulations that changed this approach.  The new rules determined that an individual’s ability to speak and understand English is not relevant to their employability for the purposes of the Social Security Act. Specifically, the “inability to communicate in English” is no longer an educational category that is considered at Step Five of the Sequential Evaluation Process. Removing Inability to Communicate in English as an Education Category, 85 Fed. Reg. 10586, 2020 WL 885690 (Feb. 25, 2020).  For example, the previously mentioned Grid Rule 201.17 was amended to simply “illiterate.” 

This change has led to significant confusion.  On one hand, SSA acknowledges the need to accommodate claimants with limited English abilities during the application and appeal process, (see, e.g., POMS GN 00203.011, Special Interviewing Situations: Limited English Proficiency (LEP) or Language Assistance Required), on the other hand, SSA no longer considers English language proficiency when adjudicating claims.

The current rule overlooks the fact that the ability to speak and understand English is referenced in the General Educational Development language standards within the Dictionary of Occupational Titles (DOT).  The DOT specifies language requirements for various occupations.  In almost all circumstances, the language requirements for the occupations cited by a vocational expert (VE) for a claimant who cannot speak or understand English will exceed a claimant’s residual functional capacity.  For example, Language Development Level 1 requires a person to recognize the meaning of 2,500 words, read at a rate of 95-120 words a minute, write simple sentences, and speak simple sentences using present and past tenses.  Dictionary of Occupational Titles, Appendix C, available at https://occupationalinfo.org/appendxc_1.html. Language Development Level 2 requires a person to have a vocabulary of 5,000-6,000 words, read at a rate of 190-215 words per minute, write compound and complex sentences, and speak clearly using appropriate emphasis, pronunciation, and present, perfect, and future tenses. Id.  Accordingly, the DOT—SSA’s bible at Step 5—recognizes that an individual’s ability to understand English is relevant to their employability.

This issue was highlighted in a case that we appealed to the First Circuit.  During the hearing, the attorney asked the VE, “If the individual identified was not proficient in English, to the point that they could speak fluently, would that affect . . . their ability to work?”  The VE testified, “It would; yes . . .”  and eliminated the majority of the previously cited jobs.  The ALJ then attempted to rehabilitate the VE testimony by asking, “Would this person have any trouble working in a location where the predominant language or the predominant number of customers’ language were Spanish-speaking or her native language?”  Ultimately, however, the VE admitted he could not determine whether the language issue would affect the number of jobs or eliminate jobs entirely.

Following the Supreme Court decision in Loper Bright Enterprises v. Raimondo, 114 S.Ct. 2244 (2024), which overturned Chevron Deference, we sought additional briefing to argue that SSA’s interpretation of education to exclude English language proficiency was unreasonable.  SSA’s purported “reasoned decision making,” for example, relied on questionable employment data as highlighted in the public comments.

The current rule fails to reflect the reality of the language barrier on an individual’s ability to transition to new occupations. Overcoming Chevron Deference was a mountain we needed to climb in our pursuit of justice for our clients.  Now, we hope that the terrain is flatter as we continue to zealously represent claimants with limited English proficiency.

While the current SSA administration emphasizes advancing equity through its mission, it should also consider the detrimental impact of certain regulations, like this one, on vulnerable groups, such as individuals who cannot communicate in English. Until then, we must persist in advocating for these claimants.

This is a guest column. The views expressed in this column are the views of the author alone, and do not represent the views of NOSSCR, NOSSCR’s leadership, or NOSSCR’s staff.