What Constitutes Malingering (Faking Disability) And What You Need to Know

Some people fake disability to obtain Social Security benefits, and this behavior is known as malingering.

There are several things you should know about this issue in order to avoid refusal of benefits.

What is Malingering?

Malingering means either faking a disability entirely or exaggerating its symptoms.

Among these two forms of malingering, the second version is probably more dangerous because it could result in complete denial of benefits even though a real, although exaggerated, disability exists. If you are accused of malingering, you are likely to need the assistance of a Social Security disability lawyer in Pennsylvania.

Social Security disability benefits are conditioned on the existence of a genuine disability, and when people fake a disability, doctors may get suspicious. A suspicious doctor may then accuse someone with a genuine disability of malingering behavior, thereby resulting in an unjust refusal of benefits.  

To minimize the chance that your SSA disability application will be denied, you will need to know what constitutes malingering behavior, who has the authority to determine whether someone is committing malingering fraud, and what the consequences of malingering fraud could be.  

Malingering Behavior: The Red Flags

Even if you are otherwise eligible for Social Security disability insurance, the following malingering behaviors can get you tagged as a malingerer.

These behaviors, even if innocently intended, are considered red flags because many people have used them as tactics to defraud the SSA:

  • Requesting a particular drug by name, especially if it is a narcotic
  • Consistently reporting “10 out of 10” pain when your medical records and your lifestyle seem inconsistent with this description
  • Appearing not to try very hard during testing of the limits of your physical or mental abilities
  • Bringing up the subject of disability benefits with your doctor before your disability has been unambiguously established. 

When undergoing an examination or otherwise dealing with your doctor, never exaggerate your symptoms, even if it appears that your doctors are not taking your suffering seriously. In other words, do everything you can to avoid being the target of a disability fraud investigation.

Malingering in the Context of a Psychological Disorder

What is malingering in the context of a pre-existing psychological disorder?

For example, a person suffering from “factitious disorder” might be described in layman’s terms as a pathological hypochondriac. Patients with a factitious disorder have a genuine psychiatric problem, and will purposefully sicken themselves and undergo painful tests or treatments in order to meet a deep emotional need for attention.

Somatoform disorder, by contrast, occurs when a patient with a mental disorder perceives his or her symptoms, which often seem neurological, as real. Symptoms may suddenly worsen when the patient is under extreme stress, to the point where he or she experiences things like paralysis or blindness. It’s believed the emotional stress “converts” into physiological symptoms.

Patients suffering from a factitious disorder or somatoform disorder can qualify for Social Security disability benefits under section 12.07 of the Disability Evaluation Under Social Security for mental disorders.

It’s important to remember that a patient whose complaints are an expression of factitious or somatoform disorder is not malingering — mental illness, after all, can be covered by Social Security disability benefits for mental health conditions.

Who Has the Authority to Determine Whether Someone is Malingering?

The problem is that there is a great deal of ambiguity concerning what malingering is and whether it is occurring in a given instance.

The following people may report suspicious behavior or come to a conclusion concerning malingering:

  • Your own doctor
  • The doctor that the SSA sends you to for an evaluation
  • Other medical professionals who may have treated your condition or examined you
  • An SSA official who is examining your application
  • An administrative law judge who is hearing your appeal  

Although SSA officials and judges are expected to base their decisions on doctors’ opinions, they are vested with considerable discretions when doctors’ opinions conflict with each other. You might overturn an initial denial by exploiting this fact — a letter of support from your own doctor can help, for example, if it is based on objective medical evidence.

Malingering Tests

Until 2012, malingering tests were given to people suspected of malingering, in order to help determine whether the patient was faking his disability. The two most commonly used tests were the Test of Memory Malingering (TOMM) and the Rey Memory Test. These tests are no longer relied upon because their results are thought to be too subject to justify a determination of malingering one way or the other.  

How Often Does the Social Security Administration Conduct Malingering Fraud Audits?

The SSA conducts Cooperative Disability Investigations of disability claims that are thought to be suspicious. CDI Units have been established in 37 states, including Pennsylvania. These investigations have resulted in denial of disability benefits based on malingering of nearly $4 billion.

The Consequences of Malingering Fraud

The penalties for malingering vary from case to case. They can include losing the ability to collect benefits in the future, payment of restitution, civil and criminal fines, and even prison. In most cases where disability benefits are denied on the basis of malingering, criminal charges are not pursued, because the burden of proof in a criminal prosecution is very high. Where prison sentences are imposed, however, they average about five years.

Contact Krasno, Krasno & Onwudinjo Today

You might be wondering what to do if your social security disability claim is denied.

Of course, it is always best to head off a denial by preventing it from occurring in the first place. If it is too late for that, however, you are entitled to appeal the denial of your SSA disability application. Ultimately, however, the assistance of a professional could make the difference between success and failure.  

If you are seeking disability benefits, plan to seek disability benefits, or if your disability application has been refused due to accusations of malingering, contact Krasno, Krasno & Onwudinjo to schedule a free case evaluation. Call us at (844) 243-4823, fill out our online intake form, or visit one of our 12 office locations in Pennsylvania.

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