[Federal Register Volume 84, Number 22 (Friday, February 1, 2019)]
[Proposed Rules]
[Pages 1006-1014]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-00250]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
[Docket No. SSA-2017-0046]
RIN 0960-AH86
Removing Inability To Communicate in English as an Education
Category
AGENCY: Social Security Administration.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: We propose to eliminate the education category ``inability to
communicate in English'' when we evaluate disability claims for adults
under titles II and XVI of the Social Security Act (Act). Changes in
the national workforce since we added this category to our rules in
1978 demonstrate that this education category is no longer a reliable
indicator of an individual's educational attainment or the vocational
impact of an individual's education. The proposed revisions reflect
research and data related to English language proficiency, work, and
education; expansion of the international reach of our disability
programs; and audit findings by our Office of the Inspector General
(OIG). The proposed revisions would help us better assess the
vocational impact of education in the disability determination process.
DATES: To ensure that your comments are considered, we must receive
them by no later than April 2, 2019.
ADDRESSES: You may submit comments by any one of three methods--
internet, fax, or mail. Do not submit the same comments multiple times
or by more than one method. Regardless of which method you choose,
please state that your comments refer to Docket No. SSA-2017-0046 so
that we may associate your comments with the correct regulation.
CAUTION: You should be careful to include in your comments only
information you wish to make publicly available. We strongly urge you
not to include in your comments any personal information, such as
Social Security numbers or medical information.
1. Internet: We strongly recommend that you submit your comments
via the internet. Please visit the Federal eRulemaking portal at http://www.regulations.gov. Use the web page's ``Search'' function to find
docket number SSA-2017-0046 and then submit your comment. The system
will issue a tracking number to confirm your submission. You will not
be able to view your comment immediately because we must post each
comment manually. It may take up to a week for your comment to be
viewable.
2. Fax: Fax comments to (410) 966-2830.
3. Mail: Address your comments to Office of Regulations and Reports
Clearance, Social Security Administration, 3100 West High Rise
Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401.
Comments and background documents are available for public viewing
on the Federal eRulemaking portal at http://www.regulations.gov or in
person, during regular business hours, by arranging with the contact
person identified below.
FOR FURTHER INFORMATION CONTACT: Dan O'Brien, Office of Disability
Policy, Social Security Administration, 6401 Security Boulevard,
Baltimore, Maryland 21235-6401, (410) 597-1632. For information on
eligibility or filing for benefits, call our national toll-free number,
1-800-772-1213, or TTY 1-800-325-0778, or visit our internet site,
Social Security Online, at http://www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION:
Background
Current Disability Rules for Adults
Title II of the Act provides for the payment of disability
insurance benefits to fully insured individuals under the Act. Title II
also provides for the payment of child's insurance benefits for
individuals who become disabled before attaining age 22, and for the
payment of widow's and widower's insurance benefits for disabled
widows, widowers, and surviving divorced spouses of insured
individuals.\1\ In addition, title XVI of the Act provides for
Supplemental Security Income (SSI) payments to eligible individuals who
are aged, blind, or disabled and have limited income and resources.\2\
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\1\ See sections 202(d)(1)(B)(ii), (e)(1)(B)(ii), (f)(1)(B)(ii),
223(a) of the Act, 42 U.S.C. 402(d)(1)(B)(ii), (e)(1)(B)(ii),
(f)(1)(B)(ii), 423(a).
\2\ Section 1611(a) of the Act, 42 U.S.C. 1382(a).
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For adults (including individuals claiming child's insurance
benefits based on disability under title II), the Act defines
``disability'' under both titles II and XVI as the inability to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.\3\
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\3\ See sections 223(d)(1)(A), 1614(a)(3)(A) of the Act, 42
U.S.C. 423(d)(1)(A), 1382c(a)(3)(A).
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In many cases, the Act requires us to consider an adult claimant's
education when we determine whether or not he or she is disabled. The
Act states that an adult shall be determined to be under a disability
only if his physical or mental impairment(s) are of such severity that
he is not only unable to do his previous work but cannot, considering
his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy,
regardless of whether such work exists in the immediate area in which
he lives, whether a specific job vacancy exists for him, or whether he
would be hired if he applied for work.\4\
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\4\ See sections 223(d)(2)(A), 1614(a)(3)(B) of the Act, 42
U.S.C. 423(d)(2)(A), 1382c(a)(3)(B).
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We use a five-step sequential evaluation process to determine
whether an adult is disabled based on this statutory definition.\5\ If
we are unable to find an individual disabled or not disabled at a given
step, we proceed
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to the next step.\6\ If we proceed to the fifth and final step, we
consider the individual's residual functional capacity (RFC), which is
the most the individual can still do despite his or her limitations,\7\
together with the individual's vocational factors of age, education,
and work experience,\8\ to determine if the individual can make an
adjustment to perform other work previously not performed.\9\ We find
individuals to be disabled if they cannot make an adjustment to perform
other work.\10\ We find individuals not disabled if they can make an
adjustment to perform other work.\11\ Other work that individuals can
adjust to must exist in significant numbers in the national
economy.\12\ At the final step of our sequential evaluation process, we
use the Medical-Vocational Guidelines (grid rules) to administer the
Act's definition of disability and direct or guide determinations and
decisions about whether individuals are disabled.\13\ The education
category ``inability to communicate in English'' is administered
through the grid rules.
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\5\ 20 CFR 404.1520(a)(4) and 416.920(a)(4).
\6\ Id. At the first step, we consider the individual's work
activity, if any. If the individual is doing substantial gainful
activity, we will find the individual not disabled. At the second
step, we consider the medical severity of the individual's
impairment(s). If the individual does not have a severe medically
determinable physical or mental impairment that meets the duration
requirement, or a combination of impairments that is severe and
meets the duration requirement, we will find the individual not
disabled. At the third step, we also consider the medical severity
of the impairment(s). If the individual has an impairment(s) that
meets or equals one of our listings in 20 CFR part 404, subpart P
Appendix 1 and meets the duration requirement, we will find the
individual is disabled. If the individual is found not disabled at
the third step, we consider our assessment of the individual's
residual functional capacity and his or her past relevant work at
the fourth step. If the individual can still do his or her past
relevant work, we will find that the individual is not disabled. At
the fifth and last step, we consider our assessment of the
individual's residual functional capacity and his or her age,
education, and work experience to see if the individual can make an
adjustment to other work. If so, we will find that the individual is
not disabled. If the individual cannot make an adjustment to other
work, we will find the individual disabled. See 20 CFR
404.1520(a)(4) and 416.920(a)(4).
\7\ See 20 CFR 404.1545 and 416.945.
\8\ See 20 CFR 404.1520(g) and 416.920(g).
\9\ 20 CFR 404.1520(a)(4)(v) and 416.920(a)(4)(v).
\10\ Id.
\11\ Id.
\12\ 20 CFR 404.1560(c) and 416.960(c).
\13\ 20 CFR 404, Subpart P, Appendix 2.
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Current Policy for Education as a Vocational Factor
In this NPRM, we propose to eliminate the education category of
``inability to communicate in English'' from step five of the
disability sequential evaluation process. Instead, we would consider an
individual's education using the other current education categories of
high school education and above, marginal education, limited education,
and illiteracy.
Our current rules explain how we evaluate the vocational factor of
education.\14\ Education is primarily used to mean formal schooling or
other training that contributes to an individual's ability to meet the
vocational requirements of work, such as reasoning ability,
communication skills, and arithmetic ability.\15\ However, a lack of
formal schooling does not necessarily mean that an individual is
uneducated or does not have reasoning, communication, and arithmetic
abilities. Past work experience and the kind of responsibilities an
individual had when they were working, daily activities, hobbies, or
results of testing may show that the individual has significant
intellectual ability that can be used to work.\16\
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\14\ See 20 CFR 404.1564 and 416.964.
\15\ See 20 CFR 404.1564(a) and 416.964(a).
\16\ Id.
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Generally, we will use individuals' highest completed numerical
grade level to determine the education category.\17\ However, we may
adjust an individual's education category if there is evidence that his
or her educational abilities are higher or lower than the numerical
grade level completed in school.\18\ We discuss the categories that
examine such evidence below.
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\17\ See 20 CFR 404.1564(b) and 416.964(b).
\18\ Id.
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We currently use five categories of education: High school
education and above, marginal education, limited education, illiteracy,
and inability to communicate in English.\19\ These categories of
education are organized into four levels in the grid rules: High school
graduate or more; limited or less; marginal or none; and illiterate or
unable to communicate in English.
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\19\ See 20 CFR 404.1564(b)(1)-(5) and 416.964(b)(1)-(5).
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High school education and above means abilities in reasoning,
arithmetic, and language skills acquired through formal schooling at a
12th grade level or above.\20\ We generally consider that someone with
these educational abilities can do semi-skilled through skilled work.
For individuals in this category, we also consider whether there is
recently completed education that provides for direct entry into
skilled work. If they recently completed education allowing for direct
entry into skilled work and are able to perform the work for which they
received the education, we do not consider them to be disabled.\21\
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\20\ See 20 CFR 404.1564(b)(4) and 416.964(b)(4).
\21\ See 20 CFR 404, Subpart P Appendix 2, rules 201.00(d) and
(g), and Tables No. 1, 2, and 3.
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Limited education means ability in reasoning, arithmetic, and
language skills, but not enough to allow a person with these
educational qualifications to do most of the more complex job duties
needed in semi-skilled or skilled jobs.\22\ We generally consider an
individual with a 7th grade through the 11th grade level of formal
education to have a limited education.
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\22\ See 20 CFR 404.1564(b)(3) and 416.964(b)(3).
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Marginal education means ability in reasoning, arithmetic, and
language skills needed to do simple, unskilled jobs.\23\ We generally
consider an individual with formal schooling at a 6th grade level or
less to have a marginal education.
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\23\ See 20 CFR 404.1564(b)(2) and 416.964(b)(2).
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Illiteracy means the inability to read or write.\24\ We consider an
individual illiterate if he or she cannot read or write a simple
message, such as instructions or inventory lists, even though the
individual can sign his or her name. Generally, we expect an illiterate
individual to have little or no formal schooling.
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\24\ See 20 CFR 404.1564(b)(1) and 416.964(b)(1).
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Our rules explain that we consider inability to communicate in
English an education category because the ability to speak, read, and
understand English is generally learned or increased in school.\25\ Our
current rules further explain that because English is the dominant
language of this country, it may be difficult for someone who does not
speak and understand English to do a job, regardless of the amount of
education he or she may have in another language.\26\ Therefore, under
our current rules, we consider an individual's ability to communicate
in English when we evaluate what work, if any, he or she can do. We do
not consider fluency in other languages.\27\
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\25\ See 20 CFR 404.1564(b)(5) and 416.964(b)(5).
\26\ This policy dates to 1978. See 43 FR 55349 (1978) (codified
at 20 CFR 404.1507, 416.907 (1979)). Prior to that time, our rules
did not specifically address the inability to communicate in English
as a vocational factor. See 20 CFR 404.1502(e) and 416.902(e)
(1978). Rather, since 1960, 25 FR 8100, 8101 (1960) (codified at 20
CFR 404.1502(e) (1961)), the rules provided that education and
training are factors in determining an individual's employment
capacity, that a lack of formal schooling was not necessarily proof
that an individual is uneducated, and that the kinds of
responsibilities an individual had while working may indicate an
ability to do more than unskilled work, even though an individual's
formal education has been limited.
\27\ See 20 CFR 404.1564(b)(5) and 416.964(b)(5).
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Based on the organization of education categories in the current
grid rules, an individual who is unable to
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communicate in English may be considered under the grid rules
specifying education level of ``illiterate or unable to communicate in
English'' or under the broader category of ``limited or less'' or
``marginal or none,'' depending on the individual's age and RFC.\28\
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\28\ See 20 CFR 404.1564(b)(5) and 416.964(b)(5).
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Under the grid rules, age 45 is the earliest point at which English
language proficiency can make a difference in disability
determination.\29\ In other words, the ``inability to communicate in
English'' education category makes no difference as to the outcome of
disability determination for individuals under 45 years of age. The
grid rules are premised on the idea that for individuals under age 45,
the inability to communicate in English does not pose a significant
vocational limitation because being younger gives them an advantage in
adjusting to other work.\30\ Our current rules are also based on the
premise that English language proficiency has the least significance
for unskilled work because most unskilled jobs involve working with
things rather than with data or people.\31\
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\29\ See 20 CFR 404, Subpart P Appendix 2, Table No. 1.
\30\ See 20 CFR 404, Subpart P Appendix, rule 201.00(h)(2).
\31\ See 20 CFR 404, Subpart P Appendix 2, rules 201(h)(4)(i)
and 202(g).
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Why We Are Proposing To Revise Our Rules
In 1978, we promulgated the five-step sequential evaluation process
and adopted the grid rules, under which we consider the interaction of
the individual's residual functional capacity, age, education, and work
experience to determine whether or not an individual is disabled under
our rules. We propose to revise the rules for how we consider an
individual's education in relation to the inability to communicate in
English for several reasons. Central to our proposed revisions is that
our current rules do not take into account that claimants who cannot
read, write, or speak English often have a formal education that may
provide them with a vocational advantage. If a claimant meets the
current criterion of ``inability to communicate in English,'' we
generally disregard the amount of formal schooling the individual may
have and evaluate the claim in the same manner as we do for a claim
filed by an illiterate individual. Moreover, since we adopted these
rules, the U.S. workforce has become more linguistically diverse and
work opportunities have expanded for individuals who lack English
proficiency. Further, our current rules treat English language
proficiency as a relevant vocational factor even when claimants live in
countries outside the U.S. or in U.S. territories where English is not
a dominant language, leading to disparate results based on the location
of the claimants.
Claimants Who Are Unable To Read, Write, or Speak English Often Have
Formal Education That Could Provide a Vocational Advantage
Claimants who report an inability to read, write, or speak English
often report having a high school education or more. In fiscal year
2016, approximately 49% of title II claimants and 39% of title XVI
claimants who reported an inability to read, write, or speak
English,\32\ also reported having completed a high school education or
more.\33\ Further, the claimants who reported an inability to read,
write, or speak English and who had at least a high school education
had past work experience at higher skill levels, when compared to the
claimants with less education.\34\ Our claims data indicate that higher
levels of education may provide a vocational advantage, even for
individuals who are unable to communicate in English.\35\
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\32\ Under our current rule, these claimants may fall under the
``illiterate'' or ``inability to communicate in English'' category.
See 20 CFR 404.1564(b)(1) and (5), and 416.964(b)(1) and (5).
\33\ This conclusion is based on our analysis of the initial
determination data for all fiscal year 2016 claims in the U.S. Table
1: Self-reported education level of claimants reporting an inability
to read, write or speak English, Adult Initial Determinations, FY
2016 (Table 1), available at regulations.gov as a supporting and
related material for docket SSA-2017-0046. We note that in the
fiscal year 2016, we adjudicated over 1.5 million and 1.2 million
claims, respectively, under titles II and XVI at the initial level,
and approximately 7.7% (118,815) title II claimants and 10.1%
(128,084) of the title XVI claimants reported an inability to read,
write, or speak English.
\34\ This conclusion is based on our analysis of the title II
claims allowed under the grid rules 201.17 and 202.09 at the initial
level within the U.S. in fiscal year 2017. See Graph 1: Self-
reported education and Specific Vocational Preparation (SVP) level
of past relevant work by Title II claimants reporting an inability
to read, write, or speak English allowed under 201.17 or 202.09,
Initial Determinations within U.S. and U.S. territories, FY 2017,
available at regulations.gov as a supporting and related material
for docket SSA-2017-0046.
\35\ Id.
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The U.S. Workforce Has Become More Linguistically Diverse
Since we adopted our current rules in 1978, linguistic diversity in
the national economy has increased, which has changed the way the
inability to communicate in English affects an individual's ability to
work. For purposes of the data analysis in this NPRM, we refer to
individuals who self-identified in the U.S. Census Bureau's (Census)
American Community Survey as speaking a language other than English at
home and speaking English ``well,'' ``not well,'' or ``not at all''
collectively as LEP.\36\ We selected this definition consistent with
how the Census defines LEP.\37\
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\36\ Our analysis is based on the data published by the Census,
which is the primary source of data on languages spoken in the U.S.
To obtain data on an individual's ability to speak English, Census
has been asking three questions since 1980. The first of the three
part-question asks if the respondent speaks a language other than
English at home and gives the option to choose ``No, only speaks
English'' or ``Yes.'' If the respondent selects ``Yes,'' the second
part of the question asks the respondent to identify the language
spoken at home. Finally, the third part of the question asks the
respondent to rate his or her ability to speak English as ``very
well,'' ``well,'' ``not well,'' and ``not at all.'' See Measuring
America: The Decennial Censuses From 1790 to 2000, pp. 85, 92, and
101 available at https://www.census.gov/prod/2002pubs/pol02-ma.pdf.
In this NPRM, we refer to individuals speaking only English at home
as individuals speaking ``only English.'' We refer to individuals
speaking another language at home and speaking no English as
individuals speaking English ``not at all'' or as individuals
speaking no English.
\37\ The U.S. Census Bureau defines LEP as individuals who speak
English less than ``very well.'' U.S. Census Bureau American
Community Survey (ACS), What State and Local Governments Need to
Know, p. 12, n. 8, February 2009, https://www.census.gov/content/dam/Census/library/publications/2009/acs/ACSstateLocal.pdf.
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In absolute numbers, the working age population (ages 25-64) with
LEP increased from approximately 5.4 to 17.8 million between 1980 and
2016, while more than doubling, from 5.1% to 10.5%, as a percentage of
the population.\38\ Within this group, the number of individuals who
spoke no English more than quadrupled from approximately 682,000 to 2.8
million (representing growth from 0.6% to 1.7%, as a percentage of the
working age population).\39\
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\38\ See SSA Office of Research, Evaluation, and Statistics
(ORES) analysis of 1980 Census and 2016 American Community Survey:
English Proficiency, Table 1: Estimated working-age (25-64)
population, by English proficiency and educational attainment, 1980
and 2016 (ORES Table 1). Available at regulations.gov as a
supporting and related material for docket SSA-2017-0046.
\39\ Id. We note that ORES Tables refer to an individual
speaking no English as an individual who ``does not speak English.''
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Between 1980 and 2016, the number of non-English speaking workers
in the 25-64 age range grew from approximately 373,000 to 1.7
million.\40\ During the same period, the labor force participation rate
for working age
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individuals who speak no English increased from approximately 54.7% to
61.5%.\41\ Notably, considering the working age population with ``less
than high school diploma,'' the 2016 labor force participation rate for
those speaking no English (60.5%) surpassed the labor force
participation rate of those speaking ``only English'' (48.9%).\42\ In
1980, the reverse was true; working age individuals with less than a
high school diploma speaking only English had a 60.7% labor force
participation rate that exceeded the 54.5% rate for those speaking no
English.\43\
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\40\ See ORES analysis of 1980 Census and 2016 American
Community Survey: English Proficiency, Table 2: Estimated labor
force participation of working-age population (25-64), by English
proficiency and educational attainment, 1980 and 2016 (ORES Table
2). Available at regulations.gov as a supporting and related
material for docket SSA-2017-0046.
\41\ Id.
\42\ Id.
\43\ Id.
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The increase in labor force participation by individuals who lack
English proficiency may be in part due to the increase in low-skilled
work in the national economy. In 2014, our Office of Research,
Evaluation, and Statistics (ORES) prepared an Evidence Synthesis
consolidating information from research we commissioned and other
available research for the purposes of modernizing our vocational
regulations.\44\ ORES' literature review on the vocational factor of
education indicates that with the introduction of new technology
replacing moderately skilled workers, there are fewer moderately
skilled jobs and higher numbers of low and high skilled jobs.\45\
Indeed, our claims data show that many claimants who may fall within
the ``inability to communicate in English'' category have a history of
working in occupations requiring lower level skills such as laborer,
machine operator, janitor, cook, maintenance, and housekeeping.\46\
Consistent with our claims data and ORES' literature review, a
Brookings Institution's (Brookings) study of LEP workers in the U.S.
found that a lack of English proficiency does not generally prevent
low-skilled workers from obtaining employment.\47\ Brookings' analysis
shows that over 1 million individuals with LEP, including those who
speak English ``not at all,'' are represented in each of the following
occupations: Building and grounds cleaning and maintenance; production;
construction and extraction; food preparation and serving;
transportation and material moving; sales and related occupations; and
office and administrative support.\48\ In the first four of the listed
occupations, the workers with LEP make up more than 10% of total
workers.\49\ In sum, both our claims data and external data indicate
that work opportunities have expanded and labor force participation has
increased for individuals who may fall within the ``inability to
communicate in English'' education category.\50\
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\44\ See the Extraction of SSA's Office of Research, Evaluation,
and Statistics, ``Evidence Synthesis: The Use of Vocational Factors
in the Disability Determination Process'' (Sept. 2014) (Extraction
of Evidence Synthesis), available at regulations.gov as a supporting
and related material for docket SSA-2017-0046. The Evidence
Synthesis in its entirety is available at https://www.regulations.gov/docket?D=SSA-2014-0081.
\45\ See the Extraction of Evidence Synthesis. See also
Acemoglu, Daren, and Autor, David. 2011. ``Chapter 12--Skills, Tasks
and Technologies: Implications for Employment and Earnings,'' in
Ashenfelter, O, and Card, D, eds. Handbook of Labor Economics, 4(B):
1043-1171 (available at regulations.gov as a supporting and related
material for docket SSA-2017-0046).
\46\ This is based on our analysis of over 2200 title II and XVI
claims allowed under grid rules 201.17 and 202.09 in the fiscal year
2017 only within the U.S. States and the District of Columbia. See
Table 2: Top 10 past relevant work held by Title II and Title XVI
claimants found disabled under the grid rules 201.17 or 202.09,
Adult Initial Determinations within U.S., FY 2016 (Table 2).
Available at regulations.gov as a supporting and related material
for docket SSA-2017-0046.
\47\ Jill H. Wilson, Investing in English Skills: The Limited
English Proficient Workforce in U.S. Metropolitan Areas,
Metropolitan Policy Program, at Brookings Institution (September
2014), p. 10, available at https://www.brookings.edu/wp-content/uploads/2014/09/Srvy_EnglishSkills_Sep22.pdf.
\48\ See Table 2. Occupations with at Least 1 Million LEP
Workers, 2012. Id. at 13.
\49\ Id.
\50\ We acknowledge that the definition of LEP we used for
purposes of the data analysis in this NPRM is not an exact match for
the claimants who may fall within the ``inability to communicate in
English'' education category. We also note that the ``inability to
communicate in English'' education category is broader than what the
ordinary meaning of the phrase ``inability to communicate'' may
otherwise suggest and can apply to individuals who have no ability
or some ability to communicate in English. Under our current rules,
individuals who have some or even high capacity to read and write
English may be found unable to communicate in English if they are
unable to speak English. Alternatively, individuals who can speak
some English but are unable to read English may be found unable to
communicate in English. In POMS DI 25015.010 C.1.b we expressly
state that an individual is unable to communicate in English when
the individual cannot speak, understand, read ``or'' write a simple
message in English. This means that even when an individual has some
ability to do three out of four, the individual will still be
categorized as unable to communicate in English if he or she cannot
do all four. (https://secure.ssa.gov/apps10/poms.NSF/lnx/0425015010). The population described as LEP for the purposes of the
data analysis in this NPRM is comparable to the claimant population
who may fall under the ``inability to communicate in English''
education category.
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The International Reach of Our Title II Disability Program Has Steadily
Expanded Since 1978
Since we adopted our current education categories in 1978, we have
established a network of bilateral Social Security agreements that
coordinate the U.S. Social Security program with the comparable
programs of other countries.\51\ These international Social Security
agreements, often called ``totalization agreements,'' have two main
purposes. First, they eliminate dual Social Security taxation, the
situation that occurs when a worker from one country works in another
country and is required to pay Social Security taxes to both countries
on the same earnings. Second, the agreements help fill gaps in benefit
protection for workers who have divided their careers between the U.S.
and another country.
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\51\ Additional information is available at https://www.ssa.gov/international/agreements_overview.html.
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The international reach of our title II disability program has
steadily expanded over the years. In 1978, we had a totalization
agreement with only one country.\52\ We now have totalization
agreements with 28 countries.\53\ English is the predominant language
in only four of those countries (Canada, United Kingdom, Ireland, and
Australia). When an individual files a disability claim based in part
on eligibility under a totalization agreement, we use the same five-
step sequential evaluation process to determine whether he or she
qualifies for disability benefits. Under our current rules, even if
individuals applying for disability live in a country with a
totalization agreement where English is not a dominant language, we
must still classify them in the ``inability to communicate in English''
education category if they cannot speak, read, or write English. In
light of the significant expansion of the totalization program since
1978, we believe our proposal to consider individuals' education level
would strengthen our international disability program abroad.
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\52\ Id.
\53\ Id. These countries are Italy, Germany, Switzerland,
Belgium, Norway, Canada, the United Kingdom, Sweden, Spain, France,
Portugal, Netherlands, Austria, Finland, Ireland, Luxembourg,
Greece, South Korea, Chile, Australia, Japan, Denmark, the Czech
Republic, Poland, the Slovak Republic, Hungary, Uruguay, and Brazil.
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OIG Audit Recommendation
Eligibility for the title II disability program benefits extends to
U.S. nationals in the U.S. territories, which include Puerto Rico, the
U.S. Virgin Islands, Guam, the Northern Marianas Islands, and American
Samoa. As we do for individuals in countries with totalization
agreements, we currently consider the inability to communicate in
English to be a vocationally relevant factor when adjudicating
disability claims in all U.S. territories, regardless of whether
English is the dominant
[[Page 1010]]
language.\54\ In 2015, OIG examined the trends associated with the
application of existing grid rules involving the inability to
communicate in English in Puerto Rico.\55\ OIG's audit of claims in
Puerto Rico indicated that the grid rules involving the inability to
communicate in English merit a closer examination.
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\54\ Among the U.S. territories, English is dominant language
only in the U.S. Virgin Islands. In the U.S. Virgin Islands, 71.6%
speak English only, 17.2% speak Spanish or Spanish Creole, 8.6%
speak French or French Creole, and 2.5% speak other languages.
Available at https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=DEC_10_DPVI_VIDP2&prodType=table. As for
the other territories, in American Samoa, 88.6% speak Samoan, 3.9%
speak English only, 2.7% speak Tongan, 3% speak other Pacific Island
languages, and 1.4% speak Asian languages. Available at https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=DEC_10_DPAS_ASDP2&prodType=table. In Guam,
43.6% speak English only, 21.2% speak Philippine languages, 17.8%
speak Chamorro, 10% speak other Pacific island languages, and 6.3%
Asian languages. Available at https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=DEC_10_DPGU_GUDP2&prodType=table. In Puerto
Rico, 94.3% speak Spanish and 5.5% speak English only. Available at
https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_16_5YR_DP02PR&prodType=table. In U.S.
Northern Mariana Islands, 32.8% speak Philippine languages, 24.1%
speak Chamorro, 17% speak English only, 14.1% speak Asian languages,
and 5.1% speak other Pacific Island languages. Available at https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=DEC_10_DPMP_MPDP2&prodType=table.
\55\ Qualifying for Disability Benefits in Puerto Rico Based on
an Inability to Speak English, available at https://oig.ssa.gov/sites/default/files/audit/full/pdf/A-12-13-13062_0.pdf.
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Following the audit, OIG recommended that we evaluate the
appropriateness of the grid rules related to the inability to
communicate in English when determining eligibility for disability for
individuals similar to those evaluated in the audit. In response to the
audit, we analyzed the fiscal year 2016 national data for claims
adjudicated under the two main grid rules dealing with the inability to
communicate in English (i.e., grid rules 201.17 and 202.09). In FY
2016, our analysis revealed that claims from Puerto Rico (31.2%),
California (19.2%), New York (11.22%), and Florida (5.8%) accounted for
67.42% (1,677) of all initial title II allowances (2,487) made under
these two grid rules.\56\ While claims allowed under the two grid rules
in Puerto Rico accounted for nearly a third of all initial title II
allowances under the two grid rules nationally, claims from Puerto Rico
represented 1% of all of the 472,468 of initial title II disability
allowances.\57\
---------------------------------------------------------------------------
\56\ See Table 3: Title II Allowances under grid rules 201.17 or
202.09, Adult Initial Determinations within U.S. and U.S.
territories, FY 2016 (Table 3). Available at regulations.gov as a
supporting and related material for docket SSA-2017-0046.
\57\ Id.
---------------------------------------------------------------------------
Our current policy on the inability to communicate in English
explains the seemingly disproportionate number of allowances made under
grid rules 201.17 and 202.09 in Puerto Rico. According to U.S. census
data, 94.3% of the residents in Puerto Rico speak Spanish.\58\
Consistent with this data, in fiscal year 2016, 11,564 (86.8%)
claimants in Puerto Rico reported an inability to read, write, or speak
English.\59\ Among the claimants who reported an inability to read,
write, or speak English, 9,167 (79.3%) had an education at high school
or more.\60\
---------------------------------------------------------------------------
\58\ Available at https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_16_5YR_DP02PR&prodType=table.
\59\ See Chart 1: Claimants reporting an inability to read,
write, or speak English Adult Initial Determinations, Puerto Rico,
FY 2016 (Chart 1). Available at regulations.gov as a supporting and
related material for docket SSA-2017-0046.
\60\ See Chart 1.
---------------------------------------------------------------------------
A subsequent analysis of our data from the fiscal year 2017
similarly showed that 80.4% of the claimants who reported an inability
to read, write, or speak English and were approved for disability under
the grid rules 201.17 and 202.09 had high school education or more.\61\
Their work histories varied and included many professions requiring
high levels of education and skills.\62\ These data indicate that an
ability to communicate in English is not the most appropriate proxy for
determining educational categorization.
---------------------------------------------------------------------------
\61\ See Chart 2: Self-reported education level of claimants
reporting an inability to read, write or speak English allowed under
201.17 or 202.09, Adult Initial Determinations, Puerto Rico, FY
2017. Available at regulations.gov as a supporting and related
material for docket SSA-2017-0046.
\62\ For example, our fiscal year 2017 data on Puerto Rico
showed that work history of the claimants allowed under grid rules
201.17 or 202.09 included jobs in nursing, education, management,
community work, financial, and legal fields. See Table 4: Past
relevant work of Title II claimants with 1 or more years of college
education.
Allowances under 201.17 or 202.09, Adult Initial Allowances,
Puerto Rico, FY 2017, available regulations.gov as a supporting and
related material for docket SSA-2017-0046.
---------------------------------------------------------------------------
ANPRM
On September 14, 2015, we published an Advance Notice of Proposed
Rule Making (ANPRM) in the Federal Register entitled ``Vocational
Factors of Age, Education, and Work Experience in the Adult Disability
Determination Process.'' \63\ In this ANPRM, we documented our
longitudinal vocational factors research efforts from 1998 to 2014, and
we solicited public comments and supporting data about how each of
these vocational factors affects an individual's ability to adjust to
other work.\64\ We said that we would consider all relevant public
comments we received, but that we would not respond directly to
them.\65\
---------------------------------------------------------------------------
\63\ 80 FR 55050, available at https://www.regulations.gov/docket?D=SSA-2014-0081.
\64\ Available at https://www.regulations.gov/docket?D=SSA-2014-0081.
\65\ 80 FR at 55051.
---------------------------------------------------------------------------
Although we did not specifically ask for comments on the
``inability to communicate in English'' education category, 10 of the
137 public comments submitted in response to the ANPRM, including those
submitted after we extended the comment period, addressed that
issue.\66\ Commenters expressed diverging opinions; these commenters
did not present supportive data. For example, one commenter said that
in today's economy, literacy in English has much less effect on an
individual's ability to work because, in the opinion of the commenter,
many non-English speakers are currently working throughout the U.S.
economy. Another commenter noted that the inability to communicate in
English would further erode an individual's ability to work and that it
should be given more weight.
---------------------------------------------------------------------------
\66\ 80 FR 66843, available at https://www.regulations.gov/docket?D=SSA-2014-0081.
---------------------------------------------------------------------------
Proposed Revisions
For the reasons stated above, we propose to revise the rules we use
to evaluate education as a vocational factor for individuals who
communicate in a language other than English when we evaluate
disability claims for adults under titles II and XVI of the Act.
Specifically, we propose to change how we evaluate education for
individuals who communicate in a language other than English by
removing the education category ``inability to communicate in
English.''
Under the proposed regulations, we would not consider an
individual's educational attainment to be at a lower education category
than his or her highest numeric grade level solely because the
education occurred in a language other than English, the individual
participated in an English language learner program, such as an English
as a second language class, or the individual is deemed to have LEP
under current Federal standards.\67\ These proposed rules retain our
[[Page 1011]]
longstanding and well-supported recognition that more formal education,
work experience, and training improve an individual's ability to adjust
to other work.
---------------------------------------------------------------------------
\67\ Individuals who do not speak English as their primary
language and who have a limited ability to read, speak, write, or
understand English can be limited English proficient, or LEP,
available at https://www.lep.gov/faqs/faqs.html#OneQ1. We note that
the definition of LEP provided by LEP.gov differs from the
definition of LEP we used to present data as explained earlier.
---------------------------------------------------------------------------
Instead, we would apply our current rules for determining an
individual's education category for all claimants regardless of which
language they use to communicate. We will use an individual's numerical
grade level to determine the education category of the individual, and
we may adjust an individual's education category if there is evidence
that his or her attained educational abilities are higher or lower than
the highest numerical grade level completed in school.
We propose to make these and other minor conforming revisions in 20
CFR 404.1564 and 416.964. We also propose to make other revisions to
these sections to remove references to the English language.
We also propose to revise the grid rules. First, we propose to
revise all grid rules referencing an inability to communicate in
English. Specifically, we would revise ``Illiterate or unable to
communicate in English'' to ``Illiterate'' (201.17, 201.23, 202.09,
202.16) and ``Limited or less--at least literate and able to
communicate in English'' to ``Limited or Marginal, but not Illiterate''
(201.18, 201.24, 202.10, 202.17). For clarity and ease of use, we
propose to revise ``Marginal or none'' to ``Marginal or Illiterate''
(203.01). Second, we propose to make other conforming changes
throughout the grid rules consistent with the revisions discussed
above.
How We Would Implement These Proposed Revisions
If we adopt these proposed rules as final rules, we would begin to
apply them to new applications, pending claims, and continuing
disability reviews (CDR), as appropriate, as of the effective date of
the final rules.\68\
---------------------------------------------------------------------------
\68\ We would use the final rules beginning on their effective
date. We would apply the final rules to new applications filed on or
after the effective date, and to claims that are pending on and
after the effective date. This means that we would use the final
rules on and after their effective date in any case in which we make
a determination or decision, including CDRs, as appropriate. See 20
CFR 404.902 and 416.1402.
---------------------------------------------------------------------------
Effect on Current Regulatory and Subregulatory Guidance
If we adopt these proposed rules as final rules, we would rescind
Acquiescence Ruling (AR) 86-3(5), which applies to claims in the Fifth
Circuit, because AR 86-3(5) would be inconsistent with the final
rules.\69\ We may also rescind or replace other current Social Security
Rulings to conform to the final rules. Where necessary, we would also
issue updated subregulatory guidance.
---------------------------------------------------------------------------
\69\ AR 86-3(5): Martinez v. Heckler, 735 F.2d 795 (5th Cir.
1984) Disability Program--Individuals Who Are Illiterate and Unable
To Communicate in English--Titles II and XVI of the Social Security
Act addresses whether the Social Security disability grid rules
applicable to individuals who are illiterate or unable to
communicate in English are applicable to individuals who are
illiterate and unable to communicate in English.
---------------------------------------------------------------------------
Rulemaking Analyses and Notices
We will consider all comments we receive on or before the close of
business on the comment closing date indicated above. The comments will
be available for examination in the rulemaking docket for these rules
at the above address. We will file comments received after the comment
closing date in the docket and will consider those comments to the
extent practicable. However, we will not respond specifically to
untimely comments. We may publish a final rule at any time after close
of the comment period.
Clarity of This Rule
Executive Order 12866, as supplemented by Executive Order 13563,
requires each agency to write all rules in plain language. In addition
to your substantive comments on this notice of proposed rulemaking, we
invite your comments on how to make the rule easier to understand.
For example:
Would more, but shorter, sections be better?
Are the requirements in the rule clearly stated?
Have we organized the material to suit your needs?
Could we improve clarity by adding tables, lists, or
diagrams?
What else could we do to make the rule easier to
understand?
Does the rule contain technical language or jargon that is
not clear?
Would a different format make the rule easier to
understand, e.g., grouping and order of sections, use of headings,
paragraphing?
Regulatory Procedures
Executive Order 12866, as Supplemented by Executive Order 13563
We consulted with the Office of Management and Budget (OMB) and
determined that this notice of proposed rulemaking meets the criteria
for a significant regulatory action under Executive Order 12866, as
supplemented by Executive Order 13563. Therefore, OMB reviewed it.
We also determined that this final rule meets the plain language
requirement of Executive Order 12866.
Executive Order 13132 (Federalism)
We analyzed this proposed rule in accordance with the principles
and criteria established by Executive Order 13132, and determined that
the proposed rule will not have sufficient Federalism implications to
warrant the preparation of a Federalism assessment. We also determined
that this proposed rule will not preempt any State law or State
regulation or affect the States' abilities to discharge traditional
State governmental functions.
Executive Order 13771
Based upon the criteria established in Executive Order 13771, we
have identified the anticipated program cost and administrative costs
as the following.
Anticipated Costs to Our Programs:
Our Office of the Chief Actuary estimates, based on the best
available data, that this proposed rule, assuming it is finalized
and implemented for all disability decisions completed after June 2,
2019, would result in a reduction of about 6,500 OASDI beneficiary
awards per year and 4,000 SSI recipient awards per year on average
over the period FY 2019-28, with a corresponding reduction of $4.6
billion in OASDI benefit payments and $0.8 billion in Federal SSI
payments over the same period.
Anticipated Administrative Costs to the Social Security
Administration:
The Office of Budget, Finance, and Management estimated
administrative costs of $97 million for SSA and $24 million for DDS,
totaling $121 million, for the 10-year period from FY 2019 through
FY 2028.
Regulatory Flexibility Act
We certify that this proposed rule will not have a significant
economic impact on a substantial number of small entities because it
affects individuals only. Therefore, the Regulatory Flexibility Act, as
amended, does not require us to prepare a regulatory flexibility
analysis.
Paperwork Reduction Act
These proposed rules contain public reporting requirements in the
regulation sections listed below, or will require changes in the forms
listed below, which we did not previously clear through an existing
Information Collection Request.
[[Page 1012]]
----------------------------------------------------------------------------------------------------------------
Description of Number of Average burden
OMB No., Form No., Regulation public reporting respondents Frequency of per response Estimated
section requirement (annually) response (minutes) annual burden
----------------------------------------------------------------------------------------------------------------
0960-0072; SSA-454............ Continuing 541,000 1 60 541,000
Disability
Review Report.
0960-0579; SSA-3368........... Disability 2,258,510 1 95 3,575,974
Report--Adult.
0960-0681; SSA-3373........... Function Report-- 1,734,635 1 61 1,763,546
Adult.
0960-0635; SSA-3380........... Function Report-- 709,700 1 61 721,528
Adult Third
Party.
20 CFR 416.964; 20 CFR
404.1564
0960-0144; SSA-3441........... Disability 637,431 1 50 531,193
Report-Appeal.
---------------------------------------------------------------
Total..................... ................ 5,881,276 .............. .............. 7,133,241
----------------------------------------------------------------------------------------------------------------
SSA submitted an Information Collection Request for clearance to
OMB. We are soliciting comments on the burden estimate; the need for
the information; its practical utility; ways to enhance its quality,
utility, and clarity; and ways to minimize the burden on respondents,
including the use of automated techniques or other forms of information
technology. If you would like to submit comments, please send them to
the following locations:
Office of Management and Budget, Attn: Desk Officer for SSA, Fax
Number: 202-395-6974, Email address: [email protected]
Social Security Administration, OLCA, Attn: Reports Clearance Director,
3100 West High Rise, 6401 Security Blvd., Baltimore, MD 21235, Fax:
410-966-2830, Email address: [email protected]
You can submit comments until April 2, 2019, which is 60 days after the
publication of this notice. To receive a copy of the OMB clearance
package, contact the SSA Reports Clearance Officer using any of the
above contact methods. We prefer to receive comments by email or fax.
(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
Security--Disability Insurance; 96.002, Social Security--Retirement
Insurance; 96.004, Social Security--Survivors Insurance; 96.006,
Supplemental Security Income.)
List of Subjects
20 CFR Part 404
Administrative practice and procedure, Blind, Disability benefits,
Old-Age, Survivors, and Disability Insurance, Reporting and
recordkeeping requirements, Social Security.
20 CFR Part 416
Administrative practice and procedure, Reporting and recordkeeping
requirements, Supplemental Security Income (SSI).
Dated: January 2, 2019.
Nancy Berryhill,
Acting Commissioner of Social Security.
For the reasons set out in the preamble, we propose to amend 20 CFR
part 404 subpart P and part 416 subpart I as set forth below:
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950-)
Subpart P--Determining Disability and Blindness
0
1. The authority citation for subpart P of part 404 continues to read
as follows:
Authority: Secs. 202, 205(a)-(b) and (d)-(h), 216(i), 221(a) and
(h)-(j), 222(c), 223, 225, and 702(a)(5) of the Social Security Act
(42 U.S.C. 402, 405(a)-(b) and (d)-(h), 416(i), 421(a) and (h)-(j),
422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 110
Stat. 2105, 2189; sec. 202, Pub. L. 108-203, 118 Stat. 509 (42
U.S.C. 902 note).
0
2. Amend Sec. 404.1564 by:
0
a. Removing the sixth sentence of paragraph (b) introductory text and
paragraph (b)(5);
0
b. Redesignating paragraph (b)(6) as paragraph (c), and
0
c. Revising the first sentence of newly redesignated paragraph (c).
The revision to read as follows:
Sec. 404.1564 Your education as a vocational factor.
* * * * *
(c) Information about your education. We will ask you how long you
attended school, and whether you are able to understand, read, and
write, and do at least simple arithmetic calculations. * * *
0
3. Amend Appendix 2 to Subpart P of Part 404 by:
0
a. Revising 201.00(h)(1)(iv);
0
b. Revising the second sentence of 201.00(h)(2);
0
c. Revising In 201.00(h)(4)(i);
0
d. In 201.00 Table No. 1, revise rules 201.17, 201.18, 201.23, and
201.24;
0
e. Revising 202.00(d) and (g)
0
f. In 202.00 Table No 2, revising rules 202.09, 202.10, 202.16, and
202.17; and
0
g. In 203.00 Table No. 3, revising rule 203.01.
The revisions to read as follows:
Appendix 2 to Subpart P of Part 404--
* * * * *
201.00 * * *
(h)(1) * * *
(iv) Are illiterate.
(2) * * * It is usually not a significant factor in limiting
such individual's ability to make an adjustment to other work,
including an adjustment to unskilled sedentary work, even when the
individuals are illiterate.
* * *
(4) * * *
(i) While illiteracy may significantly limit an individual's
vocational scope, the primary work functions in most unskilled
occupations involve working with things (rather than with data or
people). In these work functions, education has the least
significance. Similarly the lack of relevant work experience would
have little significance since the bulk of unskilled jobs require no
qualifying work experience. Thus, the functional capacity for a full
range of sedentary work represents sufficient numbers of jobs to
indicate substantial vocational scope for those individuals age 18-
44, even if they are illiterate.
[[Page 1013]]
Table No. 1--Residual Functional Capacity--Maximum Sustained Work Capability Limited to Sedentary Work as a
Result of Severe Medically Determinable Impairment(S)
----------------------------------------------------------------------------------------------------------------
Previous work
Rule Age Education experience Decision
----------------------------------------------------------------------------------------------------------------
* * * * * * *
201.17.......................... Younger individual Illiterate........ Unskilled or none. Disabled.
age 45-49.
201.18.......................... ......do.......... Limited or ......do.......... Not disabled.*
Marginal, but not
Illiterate.
* * * * * * *
201.23.......................... Younger individual Illiterate........ Unskilled or none. Do.\4\
age 18-44.
201.24.......................... ......do.......... Limited or ......do.......... Do.\4\
Marginal, but not
Illiterate.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
202.00
* * * * *
(d) A finding of disabled is warranted where the same factors in
paragraph (c) of this section regarding education and previous work
experience are present, but where age, though not advanced, is a
factor which significantly limits vocational adaptability (i.e.,
closely approaching advanced age, 50-54) and an individual's
vocational scope is further significantly limited by illiteracy.
* * * * *
(g) While illiteracy may significantly limit an individual's
vocational scope, the primary work functions in most unskilled
occupations relate to working with things (rather than data or
people). In these work functions, education has the least
significance. Similarly, the lack of relevant work experience would
have little significance since the bulk of unskilled jobs require no
qualifying work experience. The capability for light work, which
includes the ability to do sedentary work, represents the capability
for substantial numbers of such jobs. This, in turn, represents
substantial vocational scope for younger individuals (age 18-49),
even if they are illiterate.
Table No. 2--Residual Functional Capacity--Maximum Sustained Work Capability Limited to Light Work as a Result
of Severe Medically Determinable Impairment(S)
----------------------------------------------------------------------------------------------------------------
Previous work
Rule Age Education experience Decision
----------------------------------------------------------------------------------------------------------------
* * * * * * *
202.09.......................... Closely Illiterate........ Unskilled or none. Disabled.
approaching
advanced age.
202.10.......................... ......do.......... Limited or ......do.......... Not disabled.
Marginal, but not
Illiterate.
* * * * * * *
202.16.......................... Younger individual Illiterate........ Unskilled or none. Do.
202.17.......................... ......do.......... Limited or ......do.......... Do.
Marginal, but not
Illiterate.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
203.00
* * * * *
Table No. 3--Residual Functional Capacity--Maximum Sustained Work Capability Limited to Medium Work as a Result
of Severe Medically Determinable Impairment(S)
----------------------------------------------------------------------------------------------------------------
Previous work
Rule Age Education experience Decision
----------------------------------------------------------------------------------------------------------------
203.01.......................... *................. Marginal or *................. *
Illiterate.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[[Page 1014]]
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart I--Determinnig Disability and Blindness
0
8. The authority citation for subpart I of part 416 continues to read
as follows:
Authority: Secs. 221(m), 702(a)(5), 1611, 1614, 1619, 1631(a),
(c), (d)(1), and (p), and 1633 of the Social Security Act (42 U.S.C.
421(m), 902(a)(5), 1382, 1382c, 1382h, 1383(a), (c), (d)(1), and
(p), and 1383b); secs. 4(c) and 5, 6(c)-(e), 14(a), and 15, Pub. L.
98-460, 98 Stat. 1794, 1801, 1802, and 1808 (42 U.S.C. 421 note, 423
note, and 1382h note).
0
9. Amend Sec. 416.964 by
0
a. Removing the sixth sentence of paragraph (b) introductory text and
paragraph (b)(5);
0
b. Redesignating paragraph (b)(6) as paragraph (c); and
0
c. Revising the first sentence of newly redesignated paragraph (c)
The revision to read as follows:
Sec. 416.964 Your education as a vocational factor.
* * *
(c) Information about your education. We will ask you how long you
attended school, and whether you are able to understand, read, and
write, and do at least simple arithmetic calculations. * * *
[FR Doc. 2019-00250 Filed 1-31-19; 8:45 am]
BILLING CODE 4191-02-P