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Guillermina Rodriguez v. Michael J. Astrue

February 5, 2013

GUILLERMINA RODRIGUEZ, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Robert N. Block United States Magistrate Judge

O

ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS

The Court now rules as follows with respect to the one disputed issue listed in the Joint Stipulation, which is whether the Administrative Law Judge ("ALJ") erred at Step Five of the Commissioner's sequential evaluation process. Specifically, plaintiff contends that the record before the ALJ did not support a finding that plaintiff was literate and consequently a finding of disability as of plaintiff's 50th birthday was mandated by Grid Rule 202.09 of the Commissioner's Medical-Vocational Guidelines. (See Jt Stip at 4-9, 12.)*fn1

The Commissioner's regulations define "illiteracy" as "the inability to read or write." See 20 C.F.R. §§ 404.1564(b)(1), 416.964(b)(1). "We consider someone illiterate if the person cannot read or write a simple message such as instructions or inventory lists even though the person can sign his or her name." Id. Further, under the Ninth Circuit's construction of the regulations, "illiteracy" means illiteracy in English. See Chavez v. Department of Health and Human Services, 103 F.3d 849, 852 (9th Cir. 1996); see also Silveira v. Apfel, 204 F.3d 1257, 1261 (9th Cir. 2000). The Commissioner "bears the burden of establishing that [the claimant] is literate." See Silveira, 204 F.3d at 1261. A claimant's ability orally to communicate in English does not mean that the claimant is literate. See id. at 1261 n.13.

Here, one of the ALJ's findings was that plaintiff "is able to communicate in English." (See AR 31.) In support of this finding, the ALJ made the following single statement: "The claimant testified that she could speak, read and write only simple English words." (See id.)

Plaintiff does not dispute that she can communicate in English, but she does dispute the ALJ's implied finding that she was literate. The only testimony by plaintiff to which the ALJ could have been referring when he made the foregoing statement about plaintiff's reading and writing ability was the following disjointed testimony from the first administrative hearing (see AR 45-47) *fn2

Q Okay. By the way, how long have you been in the United States? A Since 1972.

Q I notice you speak some English.

A Yes. And I'm learning more now.

Q You're really what?

A And I'm learning more now.

Q More now. Learning more now. Are you going to school now?

A I'm learning more English from the radio, television. And my family -- I ...


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