BY LINDA BENTLEY | APRIL 15, 2015
Inability to speak English qualifies Puerto Ricans for disability benefits
A U.S. District Court found it is the ability to communicate in Spanish, not English, that is vocationally important in Puerto Rico
WASHINGTON – The Office of the Inspector General (OIG) for the Social Security Administration (SSA) recently completed an audit and issued a report titled, “Qualifying for Disability Benefits in Puerto Rico Based on an Inability to Speak English.”
The OIG found that SSA applies the same medical-vocational guidelines nationally and makes no exception for claimants residing in Puerto Rico where both Spanish and English are the official languages.
The current guidelines assume individuals, including Puerto Ricans, who are unable to communicate in English are limited in their ability to find a job, despite Puerto Ricans having the ability to find local work with their Spanish-speaking skills.
The SSA uses a five-step sequential evaluation process for determining whether a claimant qualifies for disability benefits.
For claims that reach the last step in the process, adjudicators use medical-vocational grids developed in the 1970s to guide them in determining a claimant’s physical and vocational abilities to adjust to other work.
If a claimant’s medical impairments do not meet the criteria of severe impairment, the adjudicator performs a function-by-function assessment of the claimant’s physical and mental residual functional capacity to determine the type of work-related activities the claimant is capable of performing, such as lifting, walking, sitting and following directions.
Because the SSA applies the grid rules nationally and makes no exceptions for Puerto Rico, it assumes individuals who are unable to communicate in English are limited in their ability to find a job, despite Puerto Ricans having the potential to find work with their Spanish-speaking ability.
According to the Code of Federal Regulations (20 C.F.R. § 404.1564(b)(5)), “Because English is the dominant language of the country, it may be difficult for someone who doesn’t speak and understand English to do a job, regardless of the amount of education the person may have in another language. 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.”
The adjudicators evaluate claimants’ physical capacity to work in addition to their age, education and work experience.
The ability to speak, read, write and understand English is considered an educational factor.
So, when claimants are unable to communicate in English, the relevance of their work experience and education is lessened and claimants are more likely to receive disability benefits.
SSA policy does not differentiate between someone who is unable to communicate in English and someone who is illiterate in any language.
Additionally, the report notes work experience acquired in a language other than English may be considered less transferable to an English-speaking economy, whereas a Spanish-speaking claimant who performed skilled work, such as a nurse, in Puerto Rico, could be determined “unskilled” in the area of work experience, when utilizing the grid.
The OIG identified 218 cases in Puerto Rico from Fiscal Years 2011 to 2013 in which adjudicators used the grid rules to grant benefits and about 4 percent of the hearings sampled during the audit involved those same grid rules.
The SSA is planning to issue an Advanced Notice of Proposed Rulemaking on the need to update the medical-vocational guidelines, which should lead to changes in how the SSA considers factors affecting a claimant’s ability to adjust to other work.
The OIG stated the SSA may also want to review other interpretations of the grid rules and pointed out a U.S. District Court found, which was upheld by the U.S. Court of Appeals, it is the ability to communicate in Spanish, not English, that is vocationally important in Puerto Rico.
The OIG recommended the SSA determine the number of beneficiaries awarded disability based on their inability to communicate in English and evaluate the appropriateness of the grid rules related to inability to communicate in English when determining eligibility for disability benefits in circumstances such as those the OIG indentified in its audit.
The SSA agreed with the OIG’s recommendations and stated it was sponsoring a workgroup comprised of federal agency experts in the field of disability to study the validity of its vocational rules.
