Older disability applicants who cannot speak or understand English may be cut out of disability benefits, according to a rule change proposed by the SSA.
The Social Security Administration wants to stop using the “inability to communicate in English” criteria as a vocational factor when evaluating claims for disability benefits.
For thousands of disabled Americans age 45 years or older, who cannot speak, write, read and understand the English language, this is not good news. But so far, it is still in the proposal stage.
Here is what may change:
Currently, if you don’t know how to communicate (read, write, speak or understand) in English, and you are at least 45 years old, the SSA considers these factors when they evaluate what work, if any, you can do.
The fact that you are a non-English speaking applicant is in your favor. Because until now, the SSA realized how difficult it can be for someone who does not speak and understand English to do a job. It makes no difference what amount of education you may have in another language.
Also, the SSA only considers claimants in this context who are age 45 or older. SSA assumes that it is harder for older non-English speaking workers to become fluent in English to (practically speaking) become employable.
If the rule changes, these considerations of communicating in the workplace will no longer exist. Your inability to communicate in English will no longer help you win your claim for disability benefits.
Where Can I Read this Proposal?
The proposed rule is Docket ID: SSA-2017-0046 of the Federal Register. It is an action called a Notice of Proposed Rulemaking (NPRM) and has been an item under review since September 2015.
“Inability to Speak English” Proposed Rule Has Congress at Odds
The window to submit public comments on the proposal closed on April 2, 2019. Now things are coming to a boil.
The Washington Post recently shared an enlightening article on this rule change. It reports how the SSA maintains the English language barrier is not the obstacle it used to be. The SSA claims that these days, US citizens who are non-English speaking have expanded work opportunities, and the U.S. workforce has become more multi-lingual as a whole.
The Post article also illustrates how Congress is debating the proposal on a partisan level.
Members of the Democratic Party attribute the plan to the Trump administration’s “unnecessary and polarizing policy change that discriminates against older workers and is anti-immigrant,” while members of the Republican party support the proposed rule change, saying the existing process “is antiquated and does not take into account how multilingual U.S. citizens and residents have become.”
The Washington Post points to the House of Representatives’ report from the Committee on Appropriations, which calls for the withdrawal of the intended rule change, as follows:
“The rule does not provide any valid evidence that there is a sufficient occupational base of jobs that this narrow group of severely disabled individuals can perform despite their pervasive limitations. The Committee understands that of the 157 organizations who submitted or signed comments, all but one commented in opposition to the rule. In light of the harm that would be caused by this policy change, the Committee strongly urges SSA to withdraw this proposed rule.”
The Post article brings attention to the Social Security Administration’s estimated figures below:
- If the proposed rule is passed: up to 6,500 applicants each year would no longer qualify for SSDI
- If the proposed rule is passed: projected savings would be $4.6 billion
- Currently: about 8.5 million people receive some kind of federal disability insurance benefits costing around $133 billion annually.
- Projected SSA Funds: The SSA disability program will have insufficient funds to pay all claims as soon as 2052.
Where in the SSDI evaluation process is the “inability to communicate in English” provision?
It occurs in the last step of the SSA’s disability assessment. The inability to speak, write and understand English is an “education” category in Step Five of the sequential evaluation process.
Quick Review of SSA’s Five Step Disability Evaluation:
Step 1: Establishes that you are not engaged in Substantially Gainful Activity. Continue to Step 2.
Step 2: Establishes that you have a severe impairment that meets the durational requirement. Continue to Step 3.
Step 3: Considers whether your impairment meets or equals a “listing” in SSA’s Blue Book. If you do, benefits are awarded. If not, go to Step 4.
Step 4: Adjudicator determines your “residual functional capacity” (RFC) – the maximum you can do despite your impairments. Using the RFC, the reviewer decides whether you can return to any past work. If you can return, benefits are denied. If you cannot return to past work, continue to Step 5.
Step 5: The adjudicator looks at your RFC and your “age, education, and work experience to see if you can make an adjustment to other work.” Benefits are awarded only if you cannot make an adjustment to other work. Otherwise, benefits are denied.
See more about the SSDI disability evaluation process.
When the SSA adjudicator looks at an applicant’s age, work experience and education in Step 5, the education category further divides applicants into subcategories:
- High School and above
- Inability to communicate in English
Applying SSA’s age requirements, a finding of “disabled” is warranted for individuals age 45-49 (or a minimum of age 45) who:
- Are restricted to sedentary work,
- Are unskilled or have no transferable skills,
- Have no past relevant work or can no longer perform past relevant work, and
- Are unable to communicate in English, or are able to speak and understand English but are unable to read or write in English.
The “Inability to Communicate in English” Rule Change Will Cause Other Problems
In its current form, the “language factor” rule has aided many thousands of disabled, non-English speaking American workers in their quest for the benefits they need and deserve.
If passed, it will change a federal regulation that has been in place since 1978. Not only will many deserving claimants lose this support; it will create even worse delays to an already overwhelmed system. An applicant with serious impairments that could have been awarded benefits at the Initial or Reconsideration levels will be put on hold for months or years before they can be heard by an ALJ and then maybe be found disabled.
This will also cause confusion in SSDI claims as they will be out of sync with the General Educational Development language standards we currently use in referencing the Dictionary of Occupational Titles (DOT) in regards to vocational information. Especially at Steps Four and Five of the disability evaluation process, claim approvals can hinge on the application of DOT vocational standards and the claimant’s actual limitations.
How We See It.
As Social Security Disability lawyers, our concern is for the very people we serve who would be placed under yet another harmful burden. Clearly, removing the “inability to communicate in English” component from the process will impede and deprive thousands of deserving non-English speaking applicants the benefits they need.
We are disability lawyers who work directly with seriously diseased and injured claimants every day. Many people we represent are not proficient in the English language. What we see are hard-working Americans who might now be denied a benefit because they are non-English speakers.
If reducing costs is the goal, a savings of $4.6 billion seems trifling compared to an annual $133 billion overhead. It is true, SSA is financially challenged. But this should not fall on the backs of the impaired.
The disability system has many flaws on many levels, but the “inability to communicate in English” factor is not one of them. Non-English speaking claimants are frequently denied benefits for separate reasons. A person’s lack of English proficiency is never the lone, unique grounds upon which a disabled claimant is granted benefits.
Our law firm remains hopeful that SSA takes another look at the realities of this proposal and the unfortunate effects it will bring to so many.
In the meantime, please stay tuned. We will bring updates on this developing matter as it unfolds.
Kindy, Kimberly. “He doesn’t speak English. Should that be considered in an application for disability benefits?” The Washington Post, June 10, 2019. https://www.washingtonpost.com/national/he-doesnt-speak-english-should-that-be-considered-in-an-application-for-disability-benefits/2019/06/08/60660b3e-8629-11e9-98c1-e945ae5db8fb_story.html?noredirect=on&utm_term=.279f242dcd86
“Removing Inability to Communicate in English as an Education Category, A Proposed Rule by the Social Security Administration on 02/01/2019.” Federal Register. Docket ID: SSA-2017-0046. Accessed 6/11/2019. https://www.federalregister.gov/documents/2019/02/01/2019-00250/removing-inability-to-communicate-in-english-as-an-education-category
“§ 404.1564 Your education as a vocational factor.” Code of Federal Regulations. Accessed 6/11/2019. https://www.ssa.gov/OP_Home/cfr20/404/404-1564.htm
“Appendix 2 to Subpart P of Part 404—Medical-Vocational Guidelines.” Code of Federal Regulations. Accessed 6/11/2019. https://www.ssa.gov/OP_Home/cfr20/404/404-app-p02.htm