By Ghermann Magaña, Attorney
A recent story in the media reported on Senator Jeff Sessions of Alabama writing to the Acting Commissioner of Social Security to express concern about a purported issue where an inability to speak English is a determinative fact in granting disability benefits. Supposedly this is a loophole that allows these individuals to move through the disability determination process faster. However, the media has conjured up a fantastical story that is not based in Social Security’s actual regulations.
The Medical-Vocational Guidelines, known as the Grid Rules among many disability practitioners, provide Social Security adjudicators with direction or guidelines in their deciding claims. These rules come into play at the fifth step in sequential evaluation, where it must be determined whether a claimant can do other work. As disability lawyers in Joplin, MO, both me and my colleagues have written about, the first four steps involve the following:
1. Making sure that there has been no substantial gainful activity since the alleged disability onset date.
2. Determining which of a claimant’s impairments are severe.
3. Determining whether the claimant’s medical impairments meet or medically equal any of the conditions noted in the Listing of Impairments.
4. Between the 3rd and 4th steps, determining an individual’s residual functional capacity (RFC), that is, the most than an individual is able to do despite the effects of all of their severe and non-severe impairments. Then, determining whether their RFC would allow them to do their past relevant work as actually performed or as performed in the national economy.
Social Security’s regulations state that the Medical-Vocational Guidelines resolves (or provides guidance on) the issue of capability to do other work by addressing specific combinations of factors. These include RFC, age, education, and work experience. With regard to education, the regulations state that “a person will meet the criteria for different education levels . . . not solely on the basis of his or her statements, but based upon all evidence pertinent to evaluating that person’s educational capacities.”
In the context of a non-English speaker, Social Security is not obligated to just accept somebody’s statement that they do not speak English. Moreover, even if someone does not speak English, they are evaluated on the basis of that, their age, education, work experience, and RFC. For example, a non-English speaker younger than 45 limited to sedentary, light, or medium work will not necessarily qualify for benefits because there are likely administratively noticed jobs for such a person. On the other hand, an English or non-English speaker who is 55, is limited to light work, cannot perform past work, and has no transferable skills to other light work can be found disabled according to the Medical-Vocational Guidelines.