Senator: Non-English Speakers Qualify for Disability Benefits More Quickly

Disability Enrollees Increased by 230 Percent

May 1, 2014

The inability to speak English is now considered a determining factor to receive federal disability benefits.

Ranking Member of the Senate Budget Committee Jeff Sessions (R., Ala.) sent a letter obtained exclusively by the Free Beacon to Acting Commissioner of the Social Security Administration Carolyn Colvin on Thursday, raising concerns regarding revelations that individuals who cannot speak English are fast-tracked for disability approval.

"I write to express my concerns about the expanding number of individuals now qualified for Social Security Disability Insurance (SSDI), and to raise a specific issue, the basis for many of these individuals’ disability classification, where the inability to speak English is a determinative factor," Sessions said.

Sessions revealed a policy for SSDI payments that allows individuals to qualify for benefits more quickly if "they are incapable of communicating in English."

The Social Security Act allows for the consideration of education when deciding if an individual is disabled. "The education factor is not limited to actual education as it relates to schooling, but includes a linguistic limitation on the ability to communicate in the English language," Sessions said.

According to the Act, "Since the ability to speak, read and understand English is generally learned or increased at school, we may consider this an educational factor."

Sessions said he is concerned that the administration is "misconstruing" this part of the Social Security Act, to approve disability applications solely on this factor.

In fact, former SSA judges have testified that individuals have been approved for disability without having to prove they cannot speak English.

On July 22, 2012 Administrative Law Judge Larry Butler had an "on-the-record conversation" in English with a claimant who did not have a lawyer. The individual then requested to postpone the hearing to find an attorney.

"Once the claimant found an attorney, even though he was capable of speaking English, the claimant’s lawyer demanded to have an interpreter at the hearing," the letter said.

Sessions said there are only two questions asked at hearings, including, "Can you speak and understand English?" and "Can you read and understand English?"

"If the applicant answers ‘no’ to these questions, the [Administrative Law Judge] does not probe any further," he said.

"It is difficult to see how someone is a U.S. citizen and incapable of speaking or reading the English language," Sessions added. "In one case handled by Judge Butler, the claimant answered ‘no’ to both questions in a January 2012 hearing, but had been naturalized as a U.S. citizen in August 1987. As, you know, naturalization requires individuals to have a working knowledge of the English language."

Social Security Administrative Law Judge Drew A. Swank also testified that, "there is no burden of proof placed on the individual to demonstrate an inability to communicate in English" at hearings.

In addition, the Hearings Appeal and Litigation Law Manual (HALLEX) requires that "an interpreter be provided at the request of a claimant, even if the claimant is capable of speaking English."

"This makes it difficult for an Administrative Law Judge to adequately determine English proficiency," Sessions said. "Once an interpreter is provided, the claimant, perhaps under instructions from his lawyer, never speaks a word of English at the hearing."

Enrollment in SSDI, which is intended to provide income for Americans who are unable to work, has ballooned in recent years. Roughly 6.7 million individuals received benefits in 2000, a number that grew to 11 million in 2012. Approximately $175 billion worth of benefit payments were disbursed in 2011.

"The population of the United States grew by 9.7 percent between 2000 and 2010, but the number of SSDI applications grew by 230 percent," Sessions noted.

"This is an unsustainable path," he said. "Indeed, benefit payments are already exceeding tax revenues collected for SSDI and the trust fund is projected to reach exhaustion in as little as two years."

In order to be eligible, an individual must not be able to do work that they did before, or "you cannot adjust to other work because of your medical condition."

"SSDI was specifically created for those whose loss of employment was caused by injury or some other medical condition," Sessions said. "Today, however, widespread anecdotal accounts reveal that a number of people immediately file for SSDI after being laid off or losing their job for reasons unrelated to injury or illness."

In light of his concerns, Sessions is asking the SSA to provide a list of the total number of interpreters provided during a hearing process for disability determination in the last five years.

In addition, he asks, "what age does your agency believe an individual is incapable of learning to speak in English" and whether SSDA is limited to American citizens, and if not, "how many non-citizens are now receiving benefits?"

"Individuals who have been naturalized as U.S. citizen can and should be able to communicate in English," Sessions said. "The Administration has an enormous responsibility to ensure that benefits are paid only to those who are truly disabled."