Malingering is the medical term for faking or exaggerating symptoms, usually to obtain some sort of benefit. If you're suspected of malingering—whether by your physician or a Social Security doctor who performs a consultative exam—it raises a giant "red flag" for Social Security disability examiners and judges alike.
If your file contains an accusation of malingering, it could kill your disability claim. You can't just ignore it and hope it won't affect your Social Security disability claim. Here's what you should do if a doctor says you're malingering just to get disability benefits.
When a doctor suspects a patient is faking or exaggerating symptoms, it's often in response to something the patient has said or done. You want to do what you can to prevent a doctor from writing anything about malingering in your file in the first place. So it's helpful to understand what kind of statements and behaviors might cause a doctor to think you're faking an impairment to get benefits.
Many doctors—especially those specializing in pain management—consider requests for particular prescription medications as "drug-seeking behavior." While that's sometimes true, it's also often the case that patients with chronic pain ask for particular drugs because they know what works for them.
Still, be very careful about asking for prescriptions by name—especially narcotic medications. Because it's already difficult to prove you're disabled by chronic pain, you don't want to do anything that could weaken your case.
It can be tempting for patients concerned that their symptoms aren't being taken seriously to invent symptoms or exaggerate the severity of the symptoms they have. But this strategy to get your doctor to take your condition more seriously can easily backfire.
If you complain of constant 10-out-of-10 pain (the worst pain possible), but your treatment history and daily activities aren't consistent with that amount of pain, your doctor might suspect you of malingering. It's essential for your health and your disability case that you're completely honest with your medical providers about your condition, including how much pain you experience and how often.
Poor effort on intelligence or psychological testing is fairly easy to detect, and, of course, it can invalidate the test results. It's also likely to destroy your credibility with Social Security.
You could also sink your own case by giving less than your best effort during a physical exam that includes tests like:
And if the Social Security claims examiner or appeal judge suspects you're malingering, not only will your disability claim be denied, but you could also face federal criminal fraud charges. (42 U.S.C. § 1383a(a).)
Avoid discussing your Social Security disability application with your doctor until you know the doctor understands your condition is genuine. Putting more focus on your Social Security application than you do on getting medical help for your impairment(s) could make your doctor think you're exaggerating your symptoms just to get disability benefits.
The single most important thing you must do if your doctor or another health care provider accuses you of faking symptoms or malingering to get disability benefits is to take action. You can't afford to ignore the allegation.
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, better yet, before your hearing. One strategy is for your attorney to submit to the judge a pre-hearing brief discussing the malingering charge along with other aspects of your case.
Often, the accusation of malingering comes from the Social Security physician who performed a consultative exam. But if you fail to address it, that single allegation from a doctor who doesn't really know you can be enough to sink your claim.
Overcoming a bad consultative exam report or accusation of malingering from the consultative doctor can be challenging, but it's not impossible. Getting your own health care provider to write a letter or complete a residual functional capacity form can bolster your disability claim. And if your treating physician or psychologist has never suspected you of exaggerating symptoms, your attorney can argue that your own doctors' opinions should carry more weight than the consultative exam report.
Historically, the Social Security Administration (SSA) has given the most weight to the opinions of doctors treating disability applicants because they're in the best position to provide a detailed, long-term picture of the applicant's medical condition. But in 2017, Social Security changed the "treating physician rule."
For claims filed after March 27, 2017, Social Security evaluates the weight of all medical opinions based on whether they're supported by sufficient medical evidence and consistent with other medical sources. (C.F.R. § 404.1520c.) Your doctor's opinions will have more weight if they're based on your medical history and objective medical tests.
A written statement from your doctor or psychologist that directly combats the accusation of malingering can help a lot. But such a statement is only helpful if the medical evidence and other information in your file back it up.
What your doctor includes in the statement will have an impact on how much help it provides. Your physician should address the following questions:
If your treating doctor or psychologist has accused you of faking or overstating your symptoms, you're in a much trickier position. Still, you're not without recourse.
If your diagnosis indicates "possible malingering," you can stress the uncertain nature of such a diagnosis. And you can emphasize that only one physician among the many health care providers you've seen accused you of malingering.
You could also see a different doctor. But avoid "doctor shopping." If you see too many new doctors too quickly, it can appear suspicious. Social Security could get the idea that you're searching for a doctor who will support a fraudulent claim.
If you do see another doctor, provide the new one with all your medical records for review. Sharing your medical history this way gives your new doctor the objective medical evidence needed to write a helpful opinion.
Detailed, supportive opinions from other people who know you can also help your claim. Gather statements from friends, family members, and former co-workers to help document the true extent of your impairments. A letter from your former employer explaining why you can no longer do your job could add credibility to your claim that your condition prevents you from working.
In cases involving accusations of malingering, it's critical to hire a qualified Social Security disability attorney to handle your case. Although it's not guaranteed, having a disability attorney greatly improves your odds of winning your claim.
An experienced attorney understands how to present your strongest case to Social Security. And lawyers know how to counter any "bad evidence" in your medical record, including doctors' opinions that don't support your claim.
Also, you may want to learn about the advantages of hiring an attorney for a disability claim based on mental impairment.
Updated September 21, 2023