This Proof Is Not In The Pudding

The Social Security Administration has paved the way for the courts on the issue of “malingering” and we can only hope the courts follow its lead – and quickly. SSA evaluated so-called “symptom validity tests”, used by many insurance companies against disability income claimants and found the tests not worth the money they cost.

A “symptom validity test” consists of a series of written questions, the answers to which are supposed to indicate how well a patient is expressing his or her symptoms to the test giver. The answers to one particular section of the test is supposed to indicate whether the patient is “malingering”, according to the test publisher. (According to a Wikipedia entry, the author of this test worked mainly for insurance companies in personal injury cases).

Insurers deny on the basis of these tests alone. See, for example, Smith v Pension Committee of Johnson & Johnson, 2012 WL 1918822. Should the test indicate that an insured is out of the test’s “normal” range, the insurance company claimsthe insured is not cooperating and labels him or her a “malingerer”. We represented a client in just such a situation about a year ago.

Although the tests may be useful as one part of a battery of diagnostic tools when evaluating disability claimants, insurers are quick to jump on the “symptom validity test” results alone when it gives them ammunition to deny a claim.

For too many years, disability income insurance companies have used for-hire doctors who give “symptom validity tests” to knock out perfectly valid disability income claims on the ground that the claimant is “malingering”. What is overlooked many times by a court is that the for-hire doctors have more reason to fudge their reports than do the people being tested. Many of these doctors make hundreds of thousands of dollars a years working for insurance companies. How long do you think they would work for insurers if they found many claimants were entitled to benefits?

The SSA is heavily involved in determining the same issues disability income insurance companies have to determine – whether an illness or injury disables a person enough so that the person is unable to perform his or her occupation. The SSA doesn’t baby claimants. Only a third of original applications are approved.

So, when SSA says the “symptom validity test” is not helpful in determining malingering, why don’t insurance companies “own up” and do the same?

And, if the insurance companies won’t do it, why don’t the courts?



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