What If a Doctor Says You Are Malingering (Faking) to Get Disability Benefits

Here's what to do if a doctor makes a notation in your medical record that you may be malingering or exaggerating to get Social Security disability benefits.

Malingering is the medical term for faking or exaggerating symptoms, usually in order to obtain some sort of benefit. When a disability claimant is suspected of malingering, whether by his or her physician or one of Social Security's doctors who perform consultative exams, this raises a giant "red flag" for disability examiners and judges alike. If your file contains an accusation of malingering, you or your attorney must address it head-on rather than ignoring it and hoping Social Security won't notice.

How to Handle an Accusation of Malingering

If a physician or other medical professional has already accused you of malingering to obtain disability benefits, you'll need to refute this charge at your disability hearing or, even better, prior to it. One strategy is for your attorney to submit to the judge a pre-hearing brief discussing the malingering charge, among other aspects of your case.

In many cases, the sole accusation of malingering comes from the Social Security physician who performed your consultative exam. If your own treating physicians have never suspected you of exaggerating symptoms, your attorney can argue that your own doctors' opinions should be given a good deal of weight here.

Historically, Social Security has given the most weight to the opinions of doctors who have been treating you, because they are in the best position to provide a "detailed, longitudinal picture of your impairment." However, in 2017, Social Security changed the "treating physician rule" so that all medical opinions are now evaluated based on factors like whether they are supported by medical evidence and consistent with other medical sources.

A written statement from your physician that combats the malingering accusation directly can still help a great deal as long as it it supported by objective medical evidence and is consistent with other information in your medical file. Some questions your physician should address include:

  • Are the nature and severity of the patient's reported symptoms consistent with his/her diagnosis? Please explain.
  • Has any objective testing been performed (such as x-rays, CT scans, MRIs, and blood work) that supports the patient's complaints?
  • Have you ever had reason to doubt the nature or sincerity of the patient's reported symptoms?

If your own doctor has accused you of feigning or overstating your symptoms, you're in a much trickier position. Still, you can emphasize that this was only one physician among the several you've seen. If your diagnosis indicates "Possible Malingering," as is often the case, you can stress the uncertain nature of such a diagnosis. Statements from friends, family members, and former co-workers can also help document the true extent of your impairments.

Common Signs of Malingering

Of course, you'll be much better off if you can prevent a doctor from entering a notation about malingering into your file in the first place. For that reason, it's important to understand what kind of statements and behaviors cause doctors to believe that their patients are malingering. Here are a few examples:

  • Requesting a drug by name. Many doctors, especially those in the field of pain management, consider requests for particular prescription medications to be "drug-seeking behavior." While that's sometimes true, it's also frequently the case that patients with chronic pain ask for particular drugs because they know what works for them. Still, be very careful about seeking prescriptions by name, especially narcotic medications.
  • Overstating your symptoms. Some patients, especially those concerned that their symptoms are not being taken seriously, will invent symptoms or exaggerate the severity of those already present. This strategy can easily backfire. If you describe constant "10 out of 10" pain, but your treatment history and daily activities aren't consistent with this report, your doctor may suspect you of malingering. It's essential for your health and your disability case that you are absolutely honest with your medical providers about your condition.
  • Providing substandard effort on mental or physical exams. Poor effort on intelligence or psychological testing is fairly easily detected and of course invalidates the test results. It's also likely to destroy your credibility with Social Security. Similarly, giving less than your best effort during a physical exam, such as range-of-motion testing, a straight-leg raise, or trigger-point testing, could easily sink your case.
  • Mentioning your disability case or other benefits secondary to your medical condition. Avoid discussing your Social Security disability application with a physician until you're sure he or she understands your condition is genuine.

Finally, it should be noted that some bona fide medical impairments, most notably factitious disorder, contain many of the hallmarks of malingering. An individual with factitious disorder will unconsciously invent physical or psychological symptoms to assume the role of a sick person. Also, fibromyalgia and other conditions for which there is no definitive test are often misdiagnosed as malingering. If you suffer from one of these impairments and your doctor doesn't believe that your symptoms are genuine, find another doctor.

Hire a Disability Attorney

In cases involving malingering, it is critical to hire a qualified Social Security disability attorney to handle your case. Use our Lawyer Directory to find an attorney in your area or fill out our attorney consultation form.

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