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Post by workdrone on Feb 24, 2020 21:59:46 GMT -5
Do you still include inability to communicate in English when your give a hypothetical to a vocational expert. if so, there is less here than meets the eye. The Agency's legal and policy positions are crystal clear from this new rule. In light of it, I don't think any rational/prudent ALJ is going to manually add this limitation back into a hypo. Doing so is basically an ALJ nullification of the Commissioner's new rule, which is not legally defensible as an ALJ's authority derives from the Commissioner. Practically, such an act would likely be a very quick way to get that ALJ the negative attentions of the AC and HQ higher ups.
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Post by carrickfergus on Mar 4, 2020 10:24:25 GMT -5
I don't see how including that in a hypo is nullification. Just because inability to communicate in English is removed from the education component of the grid matrix, doesn't mean that it is vocationally irrelevant. It just means that the grid matrix cannot direct a finding of disability using that limitation.
Example: claimant has a stroke, he is (was) bilingual with his predominant language, let's say, Italian. Suppose there is a finding of fact that one of the residuals of his stroke is aphasia and inability to verbally communicate in English, although he can communicate somewhat effectively in his native language. I think that would be appropriate to include the language limitation in a hypo, unless the agency makes that limitation irrelevant as a matter of law.
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Post by Deleted on Mar 4, 2020 11:58:15 GMT -5
I took it to be that Inability to communicate in English language is no longer a vocational factor to be put into RFCs.
Your example is ability to speak.
If it is no longer a consideration for 45 plus individuals With regard to GRIDS why are we going to ask about it in an RFC for individuals of any age?
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Post by roymcavoy on Mar 4, 2020 12:28:26 GMT -5
I took it to be that Inability to communicate in English language is no longer a vocational factor to be put into RFCs. Your example is ability to speak. If it is no longer a consideration for 45 plus individuals With regard to GRIDS why are we going to ask about it in an RFC for individuals of any age? if it impairs ability to communicate, it has to be in RFC as a potential social limitation. I think it is meant to remove the differentiation between, say 201.17 and 201.18, where the inability to communicate in English is the sole factor that distinguishes a claimant from being disabled vs not disabled
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Post by jimmyjiggles on Mar 4, 2020 12:56:00 GMT -5
I took it to be that Inability to communicate in English language is no longer a vocational factor to be put into RFCs. Your example is ability to speak. If it is no longer a consideration for 45 plus individuals With regard to GRIDS why are we going to ask about it in an RFC for individuals of any age? As a practical matter, since education is part of someone's vocational profile, and since the vocational profile is part of the RFC/hypo, won't someone who cannot read or write in English be defined as illiterate? Or will getting a GED/Diploma in a non-English speaking country now be considered having a high school education?
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Post by hopefalj on Mar 4, 2020 13:01:22 GMT -5
I took it to be that Inability to communicate in English language is no longer a vocational factor to be put into RFCs. Your example is ability to speak. If it is no longer a consideration for 45 plus individuals With regard to GRIDS why are we going to ask about it in an RFC for individuals of any age? if it impairs ability to communicate, it has to be in RFC as a potential social limitation. I think it is meant to remove the differentiation between, say 201.17 and 201.18, where the inability to communicate in English is the sole factor that distinguishes a claimant from being disabled vs not disabled I completely disagree with this. You don't include things like this in a hypo if they aren't impairment-related. You don't restrict someone from driving because they don't have a license or had it suspended due to a DWI/DUI. You don't restrict someone from being 500 feet within a school because they're a convicted child predator. Being Spanish-speaking is not an MDI or even a symptom of an MDI. In the past, inability to communicate in English was a factor considered under education pee the Regulations, so it could be considered by the VE with a hypo. That portion was removed from the Regs rather than just the grids, so it will be no longer correct to consider it for disability purposes.
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Post by roymcavoy on Mar 4, 2020 13:39:28 GMT -5
if it impairs ability to communicate, it has to be in RFC as a potential social limitation. I think it is meant to remove the differentiation between, say 201.17 and 201.18, where the inability to communicate in English is the sole factor that distinguishes a claimant from being disabled vs not disabled I completely disagree with this. You don't include things like this in a hypo if they aren't impairment-related. You don't restrict someone from driving because they don't have a license or had it suspended due to a DWI/DUI. You don't restrict someone from being 500 feet within a school because they're a convicted child predator. Being Spanish-speaking is not an MDI or even a symptom of an MDI. In the past, inability to communicate in English was a factor considered under education pee the Regulations, so it could be considered by the VE with a hypo. That portion was removed from the Regs rather than just the grids, so it will be no longer correct to consider it for disability purposes. I think we are talking about two different scenarios. I was referencing the scenario mentioned somewhere above in this thread where stroke residuals might inhibit communication in general. I used the word “social” incorrectly—I did not mean to invoke mental limitation. I meant “interaction.” I agree with you 100% that a language barrier alone is not worthy of a limitation—as you said, no impairment so no RFC limit can be supported. This is precisely why I said I believe the intent is to eliminate the different grid results based *only* on an inability to communicate in English, such as 201.17 and 201.18.
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Post by nylawyer on Mar 4, 2020 16:57:39 GMT -5
if it impairs ability to communicate, it has to be in RFC as a potential social limitation. I think it is meant to remove the differentiation between, say 201.17 and 201.18, where the inability to communicate in English is the sole factor that distinguishes a claimant from being disabled vs not disabled I completely disagree with this. You don't include things like this in a hypo if they aren't impairment-related. You don't restrict someone from driving because they don't have a license or had it suspended due to a DWI/DUI. You don't restrict someone from being 500 feet within a school because they're a convicted child predator. Being Spanish-speaking is not an MDI or even a symptom of an MDI. In the past, inability to communicate in English was a factor considered under education pee the Regulations, so it could be considered by the VE with a hypo. That portion was removed from the Regs rather than just the grids, so it will be no longer correct to consider it for disability purposes. Exactly. Outside of a fairly rare case where a medical impairment prevents a claimant from learning or communicating in English (the stroke patient mentioned above), it shouldn't part of an RFC. However, I am curious to see how illiterate is going to be defined if that remains in the grids. Because if an inability to read and write is a significant enough factor that it can lead to a disability finding, how do you distinguish that from a claimant who can read and write, just not in English? Wouldn't that individual have the same encumbrance as the illiterate claimant? Really, the only distinguishing factor I can think of is that an illiterate English language speaker likely has an impairment that contributed to his inability to read and write.
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Post by christina on Mar 4, 2020 17:54:55 GMT -5
I completely disagree with this. You don't include things like this in a hypo if they aren't impairment-related. You don't restrict someone from driving because they don't have a license or had it suspended due to a DWI/DUI. You don't restrict someone from being 500 feet within a school because they're a convicted child predator. Being Spanish-speaking is not an MDI or even a symptom of an MDI. In the past, inability to communicate in English was a factor considered under education pee the Regulations, so it could be considered by the VE with a hypo. That portion was removed from the Regs rather than just the grids, so it will be no longer correct to consider it for disability purposes. Exactly. Outside of a fairly rare case where a medical impairment prevents a claimant from learning or communicating in English (the stroke patient mentioned above), it shouldn't part of an RFC. However, I am curious to see how illiterate is going to be defined if that remains in the grids. Because if an inability to read and write is a significant enough factor that it can lead to a disability finding, how do you distinguish that from a claimant who can read and write, just not in English? Wouldn't that individual have the same encumbrance as the illiterate claimant? Really, the only distinguishing factor I can think of is that an illiterate English language speaker likely has an impairment that contributed to his inability to read and write. I believe we changed reg about illiteracy too with effect being if someone is literate in their native language, we don’t consider them illiterate under grid rules. When I looked over changes today I saw this about illiteracy
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Post by bowser on Mar 4, 2020 21:45:11 GMT -5
Why is there any discussion here? Haven't you all reviewed the crystal clear guidance we've been given?
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Post by jagvet on Mar 5, 2020 1:37:48 GMT -5
Why is there any discussion here? Haven't you all reviewed the crystal clear guidance we've been given? Because it's interesting! By the way, I am amazed how many people work 20-30 years in a diverse workforce, but speak little or no English. They now get a boost in claims over immigrants who learned English and had the same work history.
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Post by bowser on Mar 5, 2020 7:57:33 GMT -5
Why is there any discussion here? Haven't you all reviewed the crystal clear guidance we've been given? Because it's interesting! ... Perhaps I missed something. Aren't people discussing whether or not we are to include illiteracy in our hypotheticals, despite it being retained in the Grids? Does it not - at the very least - affect one's ability to perform complex verbal/written communication (in English) or perform direct public service (in English)? How is that NOT a factor to be included in a hypothetical question/RFC? I assume we are all expected to read and interpret the new reg with its questions and comment, as opposed to someone "in the know" telling us specifically how to apply this in the various situations we are expected to face. Or - as usual - is the "real world" of what goes on in a Hearing Office just not that important...
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Post by superalj on Mar 5, 2020 8:20:35 GMT -5
The grid still retains illiteracy so if one cannot communicate in English, that person is almost certainly illiterate in English.
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Post by nylawyer on Mar 5, 2020 8:46:26 GMT -5
Because it's interesting! ... Perhaps I missed something. Aren't people discussing whether or not we are to include illiteracy in our hypotheticals, despite it being retained in the Grids? Does it not - at the very least - affect one's ability to perform complex verbal/written communication (in English) or perform direct public service (in English)? How is that NOT a factor to be included in a hypothetical question/RFC? I assume we are all expected to read and interpret the new reg with its questions and comment, as opposed to someone "in the know" telling us specifically how to apply this in the various situations we are expected to face. Or - as usual - is the "real world" of what goes on in a Hearing Office just not that important... Because RFCs are supposed to be limitations related to medical impairments, not other life circumstances. A claimant who is a convicted felon is going to be adversely affected vocationally, but you don't put that into an RFC. A claimant with a sick elderly parent who they are the primary caretaker of may be required to be absent frequently, but again that's not in an RFC. Depending on the economy, someone in their 40's who has only done hard manual labor their entire lives may not be able to get hired into a sedentary job, even one that is unskilled. Hell, racism, homophobia and misogyny are all real things that impact hiring, but we aren't going to ask a VE how they impact job numbers available.
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Post by barkley on Mar 5, 2020 9:06:44 GMT -5
There is a difference in applying the grid rules and forming an RFC.
While it is correct to say that a life circumstance - i.e. transportation or criminal record - are not considered in our fictional world of work, illiteracy is a different cat. Typically, you can find a person who is illiterate has borderline intellectual functioning or a learning disorder. In my RFC, I handle that by saying the claimant can perform simple, routine work tasks but must be given instructions orally or through demonstration. The claimant cannot effectively manage written instructions. Or words to that effect.
I have not had a case with a non-English speaking claimant since the Grid change. Even if you could come up with an underlying impairment, on a nationwide scale, there likely would be plenty of jobs. I have been to parts of the country where just speaking English was a real disadvantage.
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Post by bowser on Mar 5, 2020 9:07:14 GMT -5
Because RFCs are supposed to be limitations related to medical impairments, not other life circumstances. A claimant who is a convicted felon is going to be adversely affected vocationally, but you don't put that into an RFC. A claimant with a sick elderly parent who they are the primary caretaker of may be required to be absent frequently, but again that's not in an RFC. Depending on the economy, someone in their 40's who has only done hard manual labor their entire lives may not be able to get hired into a sedentary job, even one that is unskilled. Hell, racism, homophobia and misogyny are all real things that impact hiring, but we aren't going to ask a VE how they impact job numbers available. Well, those factors don't impress me as affecting one's ability to perform specific job functions - physical/mental/special senses - in the same manner as illiteracy. One's criminal record and personal commitments strike me more akin to "hireability" or ability to get to a particular job from one's current home - which are specifically not to be considered. Perhaps I'm especially dense But the interpretation you suggest impresses me as removing our analysis even further from anything I can understand as "the real world." Which makes it even harder for me to view my job as dealing with individual people, and furthering any conceivable (let alone laudable) social goals. Instead, we are just applying an entirely artificial administrative framework. Hammering out widgets. Deboning chickens.
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Post by generalsherman on Mar 5, 2020 9:07:48 GMT -5
I’m thinking about a hypothetical one-armed guy. If they’re limited to light work they can only usually do customer-service type work, because everything else requires use of both upper extremities. So, could someone like that who speaks no English succeed as an usher or ticket-taker? I doubt it! But if lack of English is no longer a vocational factor, could that even be considered? Apparently not.
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Post by jimmyjiggles on Mar 5, 2020 10:40:26 GMT -5
I’m thinking about a hypothetical one-armed guy. If they’re limited to light work they can only usually do customer-service type work, because everything else requires use of both upper extremities. So, could someone like that who speaks no English succeed as an usher or ticket-taker? I doubt it! But if lack of English is no longer a vocational factor, could that even be considered? Apparently not. This a great example of a case that shows the difference between illiteracy and inability to speak English. An illiterate can presumably do those jobs you cite, whereas a non-English speaker, even one with a PhD, could not.
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Post by jimmyjiggles on Mar 5, 2020 10:50:27 GMT -5
Perhaps I missed something. Aren't people discussing whether or not we are to include illiteracy in our hypotheticals, despite it being retained in the Grids? Does it not - at the very least - affect one's ability to perform complex verbal/written communication (in English) or perform direct public service (in English)? How is that NOT a factor to be included in a hypothetical question/RFC? I assume we are all expected to read and interpret the new reg with its questions and comment, as opposed to someone "in the know" telling us specifically how to apply this in the various situations we are expected to face. Or - as usual - is the "real world" of what goes on in a Hearing Office just not that important... Because RFCs are supposed to be limitations related to medical impairments, not other life circumstances. A claimant who is a convicted felon is going to be adversely affected vocationally, but you don't put that into an RFC. A claimant with a sick elderly parent who they are the primary caretaker of may be required to be absent frequently, but again that's not in an RFC. Depending on the economy, someone in their 40's who has only done hard manual labor their entire lives may not be able to get hired into a sedentary job, even one that is unskilled. Hell, racism, homophobia and misogyny are all real things that impact hiring, but we aren't going to ask a VE how they impact job numbers available. While what you say is true, don't forget that every hypo starts with "assume a person of the claimant's age, education, and vocational history..." None of these things need be impacted by MDIs, but are considered in determining whether someone is disabled. To some extent (arguably at least) the ability to speak English is going to impact your educational level. I think that is what these comments are getting to. One problem with getting rid of the non-english speaking educational category is that it is not clear what categories those folks who previously occupied this category belong in now. Is a 8th grade education in Bolivia equivalent to an 8th grade education in the US? Absent any additional guidance, I guess the answer is yes? Or is that person illiterate? I see comments here putting the cart before the horse, saying we can assume or infer some MDI giving rise to the illiteracy, but that ignores the fact that this is an educational category, not a RFC limitation per se.
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Post by bowser on Mar 5, 2020 12:23:29 GMT -5
So, for a non-English speaker, with either no PRW or exertionally demanding PRW. Maybe they have a significant upper extremity limitation or are otherwise limited to light or sed work. VE identifies a significant number of jobs as customer service or telephone solicitor.
I'm not supposed to consider whether their lack of English language skills is relevant?
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