Generally, non-English-speaking clients are on equal footing with English-speaking clients when applying for Social Security disability. Still, there are some preventative measures that can be taken to avoid any difficulties for non-English-speaking clients at the hearing, such as complications that may arise due to the client’s inability to communicate effectively in a non-native language. There are advantages to proving that a client cannot read or write in English as well. Most of these suggestions are fairly practical and easy to implement—they simply require attention to detail and a cooperative client.
First, when filling out the initial application, it’s important to indicate that the client does not speak English. This may seem obvious, but it is a vital step. Judges often look at early records in the disability process when trying to establish if a client speaks English.
Second, clients should be made aware that they can ask for a translator at every level of the process, and they should be encouraged to do so. If a translator is present, the client should ask to have that noted in the file. It should also be noted if the client is using a friend or family member to translate for them or if the Social Security employee speaks their native language. These small details are key to building a case for the inability to speak English. More importantly, the consistency with which this is done establishes the client’s credibility.
Another way to establish credibility is to request a letter from the client’s employer. Many non-English-speaking clients can successfully hold jobs in the United States without speaking English. This is often due to the type of work being performed or the environment in which it is performed; for example, a client may work in a predominantly non-English-speaking neighborhood. A letter explaining that the client was not required to learn to read, write or speak English will be invaluable to establishing a client’s credibility.
Also, there are certain forms that clients must fill out themselves, such as the function report (daily activities), medications list and updated medical treatment form. These forms should be filled out by someone who can read and write in English; however, this should be noted on the form itself. There is usually a space to indicate this in the function report. Preparing for hearings often takes much longer with non-English-speaking clients. Keeping the translators on staff at a law firm aware of pertinent legal concepts is often valuable in helping explain any issues that may arise during a client’s preparation.
Notably, non-English-speaking clients may often be unable to treat with doctors fluent in their native language. As a result, crucial details can be lost in translation, especially diagnoses, types of tests, and limitations. Therefore, it is important to make sure that the client understands what they are diagnosed with as substantiated in the records. For example, a client with degenerative disc disease must understand that claiming to have a herniated disc will hinder his or her ability to win a case. Such miscommunications are frequent and, again, can detract from credibility at a hearing.
If the client is treated by a doctor fluent in his or her language, or if a translator is present at the doctor’s office, this should be noted in the records or a letter should be obtained from the doctor establishing the facts (an exception: any doctor’s office that treats speakers of the client’s native language, and this is apparent in the title of the practice).
Another problem that may arise, especially among Spanish-speaking clients, is identity theft. Many illegal immigrants possess stolen identities to allow them to work in this country. Often, as a result, clients who have been victims of identity theft will have wage earnings reported for their Social Security numbers that are not a part of their work history. The easiest way to spot this problem is by closely examining the detailed earnings record. Encouraging clients to make a list of their past work and comparing it to the work record is crucial. The best way to establish this is to have the client contact both the Internal Revenue Service and the Social Security Administration, and, if applicable, file a police report.
Further, a work record for a Title II claim can also be inaccurate. To be eligible for a Title II claim, often referred to as an SSD claim, the client must prove he or she is disabled before the date of last insured. This date is generally calculated by quarters of coverage in earnings. Clearly, this date can be miscalculated if the reported earnings are not being earned by the client. The miscalculation will also affect the client’s monthly disability rate of pay. Needless to say, identity theft can be a serious issue for a client in terms of eligibility.
Clients also have a right to a translator at the hearing itself. Clearly, this is key to ensuring that a client understands what is happening during the hearing. While many clients may speak some English, it may not be enough to understand legal concepts. It can be useful to make a note of why a translator is present in your opening statement, as it often helps to alleviate any doubt a judge may have about the presence of a translator.
Judges will often have basic questions asked and answered in English, then proceed to use the translator for more complicated concepts. Importantly, this should only be done when a client has enough working English to disqualify him or her from the advantages of the medical vocational guidelines discussed below. Additionally, make sure the client knows that he or she should only answer questions after the translator has posed them.
Fortunately, some rules can be highly advantageous for clients unable to communicate in English; notably, the medical vocational guidelines, often referred to as the “grids” in disability, are more favorable to these clients. For instance, they may be able to “grid out” or be found disabled at an earlier age. Exceptions can apply, however. While applying the medical vocational guidelines can be formulaic, this is often the path to a successful disability claim.
Overall, these suggestions can be invaluable in many cases to establishing a client’s credibility. Helping clients overcome any disadvantages at the earliest possible date will help ensure more successful claims and more appreciative clients.
Allison Eberle-Lindemuth is an associate at Pond Lehocky Stern Giordano. She focuses her practice exclusively on Social Security disability.