Will Social Security consider the years of schooling I have had or what my real edcuational ability is when determining what other work I can do?

I am currently working on a federal court case in which my client completed 8th grade but believes that she really only has an education at the 3rd or 4th grade level.  She claims that the teachers just passed her along to the next grade to get her out of their class. The issue of education arises in Social Security Disability cases as a vocational factor – when Social Security has already determined that you cannot perform your past work but is considering what other kind of work you can do.

Social Security’s method for evaluating education is found in 20 C.F.R. Section 404.1564. They understand that if a long time has passed since you have received your education, the skills and knowledge you obtained may no longer be useful.  They will use a person’s numerical grade level to determine educational abilities unless there is evidence to contradict it.  So, for example, in my case it will be important to look at the school records and determine whether my client actually passed any of the classes she was taking or was absent or tardy so much such that she was not there and thus could not have learned the material despite the fact that she was passed.  Also, it will be important to check if she was in special education classes while she was in school.

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Is someone “literate” if he or she is able to pass the naturalization exam?

Last week I had a new situation, at least new for me.  I was representing a native Spanish speaker.  I had conducted all of our interviews through an interpreter.  He understood some basic English but could not read or write ;  he was also illiterate  in Spanish.   He is, however, a naturalized US citizen and had passed his citizenship exam in English.   I was going to argue that my client was illiterate and that in combination of his closely approaching advanced age, and limitation to light work, he would be considered disabled pursuant to Rule 202.09  of the “grids” (Appendix 2 to Subpart P of Part 404 , Medical-Vocational Guidelines).     I was worried that the ALJ would find him literate because he passed his citizenship exam.  I know the naturalization exam is not a literacy test, but it got me thinking as to whether there was any California case law on the topic.  I was surprised to some California law on point.

In an unpublished case, Lopez v. Astrue, CV 09-8136-MLG, United States District Court, C.D. California, Western Division, July 1, 2010, the Judge asked the vocational expert to assume the following concerning the claimant’s language ability,

I am going to say that since he is a naturalized citizen, we’re going to presume that he has adequate ability in English language to communicate and to read and write at least well enough to get along at a basic level in our society.

Based on that hypothetical, the Vocational Expert identified two jobs in the national economy that the claimant could perform:  Surveillance System Monitor (DOT 379.367-010) and Information Clerk (DOT 237.367-018).  In supporting the judge’s decision, the government argued on appeal that, “Plaintiff must have an adequate ability to communicate in English because he has lived in the United States for 28 years, is a naturalized citizen, and testified that he writes, understands and speaks basic English.”

The Court did not accept the argument that naturalization = literacy.  The Court held that the ability to speak basic English was not sufficient to show that the claimant had the ability to perform those jobs, both of which required Level Three Language Development skills.  Although the case is not published,  it is a useful to see how a federal judge dealt with the issue.

The Court though cited to a published case  on literacy, ” Pinto v. Massanari, 249.F.3d, 840, 843 (9th Cir. 2001).  In Pinto, the vocational expert testified that the claimant, who was illiterate  in English, could perform her past relevant work as a hand packager, which required Language Level 1, as it was generally performed in the national economy. Id. The Ninth Circuit found that the ALJ “although noting Pinto’s limitation in both his findings of fact and hypothetical to the vocational expert, failed to explain how this limitation related to his finding that Pinto could perform her past relevant work as generally performed.” Id. at 847.  With this particular claimant, it appeared that her English was below Level 1 and the Court held that the ALJ must explain how this claimant could perform a job with a language level less than what she had.

Naturalization applicants must prove a basic level of English, not literacy, in order to pass the exam.  Passing the exam means an applicant has demonstrated a basic proficiency in English, nothing more.  An ALJ cannot assume a level of English simply because an applicant has passed the citizenship exam.  Moreover, if a an individual is illiterate, the judge has to explain how the claimant is able to perform the job with the language level that the claimant has.  While no one wants to admit to being illiterate, a finding of illiteracy or an inability to communicate in English  may make or break the case.  It did in mine.  We won.