United States District Court, D. Maine
REPORT AND RECOMMENDED
H. Rich III United States Magistrate Judge.
Supplemental Security Income (“SSI”) appeal
raises the question of whether the administrative law judge
(“ALJ”), whose findings were adopted by the
Appeals Council on review, supportably deemed the plaintiff
capable of performing work existing in significant numbers in
the national economy. The plaintiff seeks remand on several
bases, including that the ALJ erred in relying on the
testimony of a vocational expert (“VE”) without
clarifying the impact of the plaintiff's inability to
speak or understand English on her ability to perform the
representative jobs at issue. See Plaintiff's
Itemized Statement of Errors (“Statement of
Errors”) (ECF No. 13) at 10, 18-19. I agree and,
accordingly, recommend that the court vacate the
commissioner's decision and remand this case for further
proceedings consistent herewith. I need not, and do not,
reach the plaintiff's remaining points of error.
to the commissioner's sequential evaluation process, 20
C.F.R. § 416.920; Goodermote v. Sec'y of Health
& Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the
ALJ found, in relevant part, that the plaintiff had the
severe impairments of diminished vision in her right eye, an
affective disorder/major depressive disorder, and an
anxiety-related disorder/post-traumatic stress disorder,
Finding 1, Record at 91; that she had the residual functional
capacity (“RFC”) to perform a full range of work
at all exertional levels, with the following nonexertional
limitations: she could occasionally climb ladders, scaffolds,
or ropes, could not drive commercial vehicles, could perform
tasks requiring no more than occasional far and near acuity
with the right eye and no more than occasional depth
perception and field of vision with the right eye, could not
work at unprotected heights or around dangerous moving
equipment, needed to avoid tasks involving a variety of
instructions or tasks, but could understand and carry out
simple one- or two-step instructions and detailed but
uninvolved oral instructions involving a few concrete
variables in or from standardized situations, and could not
work in direct contact with the public but could work with
supervisors and coworkers, Finding 4, id. at 93;
that, considering her age (26 years old, defined as a younger
individual, on the date her application was filed, December
15, 2014), education (limited, “is not able to
communicate in English, and considered in the same way as an
individual who is illiterate in English (20 C.F.R. [§]
416.964)”), work experience (transferability of skills
immaterial), and RFC, there were jobs existing in significant
numbers in the national economy that she could perform,
Findings 6-9, id. at 97; and that she, therefore,
had not been disabled from the date of her application,
December 15, 2014, through the date of the decision, January
17, 2017, Finding 10, id. at 98-99. By notice dated
November 30, 2017, the Appeals Council granted review of the
ALJ's decision, id. at 170-74, following which,
by decision dated February 7, 2018, it “adopt[ed] all
of the [ALJ]'s findings with respect to the
[plaintiff]'s severe impairments, her [RFC] and her
ability to perform other work existing in significant numbers
in the national economy.” Id. at 7-8. The
decision of the Appeals Council is the final determination of
the commissioner. 20 C.F.R. § 416.1481.
standard of review of the commissioner's decision is
whether the determination made is supported by substantial
evidence. 42 U.S.C. § 1383(c)(3); Manso-Pizarro v.
Sec'y of Health & Human Servs., 76 F.3d 15, 16
(1st Cir. 1996). In other words, the determination must be
supported by such relevant evidence as a reasonable mind
might accept as adequate to support the conclusion drawn.
Richardson v. Perales, 402 U.S. 389, 401 (1971);
Rodriguez v. Sec'y of Health & Human Servs.,
647 F.2d 218, 222 (1st Cir. 1981).
reached Step 5 of the sequential evaluation process, at which
stage the burden of proof shifts to the commissioner to show
that a claimant can perform work other than her past relevant
work. 20 C.F.R. § 416.920(g); Bowen v. Yuckert,
482 U.S. 137, 146 n.5 (1987); Goodermote, 690 F.2d
at 7. The record must contain substantial evidence in support
of the commissioner's findings regarding the
plaintiff's RFC to perform such other work. Rosado v.
Sec'y of Health & Human Servs., 807 F.2d 292,
294 (1st Cir. 1986).
determined that the plaintiff, an Iraqi immigrant, was unable
to communicate in English. Record at 96; Finding 7,
id. at 97. While illiteracy or an inability to
communicate in English is not per se disabling,
see, e.g., Omar v. Astrue, Civil No. 08-270-P-S,
2009 WL 961230, at *4 (D. Me. Apr. 7, 2009) (rec. dec.,
aff'd May 1, 2009), it is relevant to the
determination of disability as a subset of education, one of
three vocational factors (age, education, and work
experience) that, along with a claimant's RFC, drive the
Step 5 determination of whether a claimant can work,
see 20 C.F.R. §§ 416.960(c)(1) (“We
will look at your ability to adjust to other work by
considering your [RFC] and the vocational factors of age,
education, and work experience, as appropriate in your
case.”), 416.964(b)(5) (“Since the ability to
speak, read and understand English is generally learned or
increased at school, we may consider this an educational
factor. 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
the Commissioner will meet the step 5 burden, or not, by
relying on the testimony of a [VE] in response to a
hypothetical question whether a person with the
claimant's RFC, age, education, and work experience would
be able to perform other work existing in the national
economy.” Richardson v. Soc. Sec. Admin.
Comm'r, No. 1:10-cv-00313-JAW, 2011 WL 3273140, at
*11 (D. Me. July 29, 2011) (rec. dec., aff'd
Aug. 18, 2011) (citation and internal quotation marks
omitted). The ALJ did so here. See Record at 97-98.
literacy, or education level, is relevant only to [the Step
5] inquiry[, ] . . . it follows that the Commissioner bears
the burden of establishing this factor.” Silveira
v. Apfel, 204 F.3d 1257, 1261 n.14 (9th Cir. 2000). An
ALJ, therefore, must explain the impact of a claimant's
illiteracy or inability to communicate in English on her
ability to work. See, e.g., Yacoub v.
Colvin, No. 1:14-cv-00884-SKO, 2016 WL 541407, at *14
(E.D. Cal. Feb. 11, 2016).
detailed below, although the ALJ found the plaintiff unable
to communicate in English, see Finding 7, Record at
97, she did not convey that finding to the VE, see
id. at 32-34. Later, when the plaintiff's attorney
attempted to question the VE on that point, the ALJ
interrupted their colloquy, indicating that the need for such
testimony was obviated by regulatory guidance in the
so-called “Grid, ” the Medical-Vocational
Guidelines, Appendix 2 to Subpart P, 20 C.F.R. § 404.
See id. at 34-36. In affirming the ALJ's
findings on review, the Appeals Council agreed, citing the
Grid rules to which the ALJ had alluded at hearing. See
id. at 7.
hearing, the ALJ asked the VE if an individual fitting the
following description could perform any work:
Let's assume that we have an individual with no work
history and assume that there are no exertional limitations,
but that the individual should occasionally climb ladders,
scaffolds, or ropes, should not drive commercial vehicles,
could perform task[s] that require no more than occasional
far acuity with the right eye, occasional depth perception,
and occasional field of vision with the right eye.
But no restrictions of the use of the left eye. No. work at
unprotected heights or around dangerous moving equipment. The
individual must avoid tasks involving a variety of
instructions or tasks but is able to understand to carry out
detailed, but uninvolved oral instructions involving a few
concrete variables in or from standardized situations, cannot
work in direct contact with the public, but can work with
supervisors and co-workers.
Id. at 32.
testified that such a hypothetical individual could perform
the jobs of dishwasher, Dictionary of Occupational Titles
(U.S. Dep't of Labor 4th ed., rev. 1991)
(“DOT”) § 318.687-010), cleaner, DOT §
323.687-014, and packaging line attendant, DOT §
920.587-018. See id. at 32-33. Each of those jobs is
described in the DOT as having a General Educational
Development (“GED”) language level of 1,
entailing the following abilities:
READING: Recognize meaning of 2, 500 (two- or three-syllable)
words. Read at rate of 95-120 words per minute. Compare
similarities and differences between words and between series
WRITING: Print simple sentences containing subject, verb, and
object, and series of numbers, names, and addresses.
SPEAKING: Speak simple sentences, using normal word order,
and present and past tenses.
DOT §§ 318.687-010, 323.687-014, 920.587-018;
Appendix C, § III, to DOT.
the ALJ invited the plaintiff's counsel, Sherri A. Stone,
Esq., to question the VE, see Record at 34, ...