“Malingering” is the legal term for faking a disability, or the extent of a disability, in order to obtain disability benefits that you are not entitled to. A determination of malingering can carry serious financial and even criminal consequences. Doctors look for malingering, and sometimes they inadvertently accuse innocent patients of this offense.

Telltale Signs of Malingering — What Doctors Look For

You risk triggering suspicions of malingering under the following circumstances:

  • You speak to your doctor about possible disability benefits before your disability has been diagnosed.
  • You ask for a particular medication (especially if it is a narcotic).
  • You don’t try very hard on tests of your physical or mental capabilities. Do the best that you can, even if “passing” the test might mean losing benefits,.
  • You always report “10 out of 10” on pain evaluations, unless your doctor considers this plausible given what he knows about your medical condition.

Who Makes the Determination of Malingering?

The determination of who is and is not malingering is essentially a subjective determination. And that is what is dangerous about it, at least with respect to the possibility of a false accusation. Any of the following people might make a determination of malingering:

  • Your doctor;
  • The SSA’s doctor (one that the SSA sends to evaluate you);
  • Other healthcare professionals who have treated or examined you;
  • The SSA employee who reviews your application for benefits (perhaps not even a healthcare professional); or
  • If you appeal the denial of your benefits, the administrative law judge (ALJ) who hears your appeal.

Unavoidable Ambiguity

A determination of malingering is not completely arbitrary, of course — it is supposed to be based on objective medical evidence. Nevertheless, discretion applies at more than one level. Your doctor, for example, enjoys a certain degree of discretion when he issues his opinion — otherwise doctors’ opinions would never conflict with each other (and they often do). SSA officials who evaluate the opinion also enjoy a certain degree of discretion.

What Happens if a Determination of Malingering is Issued

Malingering is considered to be a form of fraud, and its consequences can be serious. Possible sanctions include:

  • Denial of your application for benefits;
  • A denial of future benefits (blacklisting);
  • Being forced to repay disability benefits that you have already received;
  • Civil and criminal fines; and
  • Jail or prison time (years of incarceration in extreme cases).

The Clock is Ticking…

If you fear that you may be accused of malingering, or if such an accusation has already been made against you, now is no time for delay — you need the assistance of a skilled disability lawyer immediately. Raleigh disability lawyer John A. Hedrick has decades of experience handling workers’ compensation claims, and he is Board Certified in workers’ compensation law.

Telephone us today at 919-626-3895, email us at john@johnhedricklaw.com or complete our online claim evaluation form..