The Disability Insurer Is Calling You a Liar: Objective Evidence of Subjective Conditions

The most common reason stated by insurance companies for denying my clients benefits is there is no objective evidence of the client's impairments.  By this they mean that there are no medical or vocational test results assessing the extent the client's impairments affect her ability to work.

Of course, the medical records commonly include many statements by the claimant about her pain, cognitive difficulties, trouble walking, sitting for extended periods, or using a keyboard.  The insurers' hardly ever give any weight to these statements, claiming that they are mere subjective complaints; that is, they are not in themselves proof that the person is experiencing what she says she is experiencing.    The insurers are in essence calling the patients liars: the insurer clams the patient is telling untrue things to their doctors.  This happens frequently with chronic back pain, migraine headaches, fatigue, and early stage Parkinson's and multiple sclerosis.  

Why would a patient lie to her doctor?  The insurers never say, but there are only two possibilities:  

• the patients are suffering from a delusion, that they are not really experiencing the symptoms they are feeling, that the condition is a "somatic disorder" or "psychosomatic disorder"," which is what medical records say then a doctor believes the reported symptoms are the product of a delusion rather than an organic illness; or 

• the patients are lying in order to qualify for disability benefits, making up symptoms they are not real experiencing.  In the medical literature, lying about symptoms to get a financial benefit is called reporting symptoms for "secondary gain."

Discounting self-report of pain is fine if there is evidence that the claimant is lying or delusional, such as surveillance in the record, or activities reported in the medical records, that are inconsistent with the limitations the patient is claiming, or the patient claims to have cancer but no cancer can be detected.  

But in the absence of evidence of lying or a mental illness, why should insurers be allowed to call claimants liars just because a medical test doesn't show their chronic pain or cognitive impairment?   When objective evidence can't exist, courts in the past decade have done a pretty good job not allowing insurers to deny benefits based solely the fact the impairment is based on subjective complaints.  Kelly v. Reliance Std. Life Ins. Co., 2011 U.S. Dist. LEXIS 147133, 2011 WL 6756932 (D.N.J. Dec. 21, 2011) ("The defendants are not free to ignore the plaintiff's chronic and severe pain under the apparent theory that MRIs or EMGs must demonstrate some structural deformity for a person to be disabled because of back pain. Unfortunately for all parties involved, back pain, even severe pain, is not so simple.")

But, courts have rarely directly addressed the issue that insurers are really calling claimants liars when the insurers don't credit subjective reports of pain.  Remember the context in which these statements are made: in a doctor's office, where the patient is seeking diagnosis and treatment for serious conditions.  A patient who lies in a medical office risks painful, dangerous and expensive treatments to address an imaginary malady.  And frequently, the patient reported the pain at a time when there is no motivation to lie: the statements may have been  made before any application for disability benefits is filed; or when benefits are being paid routinely and the the claimant would have no reason to think their benefits were at risk.  

The rules that govern what evidence can be presented in Federal Court even acknowledge that statements made to a medical professional for purposes of diagnosis and treatment have "intrinsic indicia of reliability," which is judge talk meaning that the statements are likely enough to be true that they should be admitted into evidence.  Therefore, statements made to obtain medical treatment are an exception to the hearsay rule that out-of-court statements cannot be admitted into evidence to show that what was said was true.    Some courts have accepted this analogy.  Lasser v. Reliance Std. Life Ins. Co., 146 F. Supp. 2d 619, 640 (D.N.J. 2001) (“it was in Dr. Lasser's interests accurately to inform him of his daily activities in order to obtain an effective program of rehabilitation. Indeed, it is based on this indicium of reliability that such out-of-court statements by Dr. Lasser would be admissible under the Federal Rules of Evidence.”).

In my Connecticut disability insurance practice, I will keep arguing that an insurer can't dismiss a claimant's pain unless there is a factual basis for it.  The insurance company's insist on objective evidence of pain; courts should start requiring long-term disability insurers to produce "objective evidence" that the patient is lying or delusional before calling the claimant a liar.  We'll see if Connecticut federal courts will start turning the tables and require  insurers to show "objective evidence" that the claimant is not telling the truth in reviewing decisions on long-term disability insurance appeals.  

Medical Records: For Diagnosis and Treatment or Vocational Assessment?

Doctors use medical records for two purposes: for diagnosis and treatment.  Insurers use medical records to determine if you can do your job.  What’s the problem?  

If you have undergone a denial and an appeal, you have learned that your medical records are the one thing the insurer really looks at in making the disability determination, especially if there is no surveillance or in-person interview.  If the insurer doesn't find evidence in the medical records that you can’t do your job, your claim is likely to be denied.     

There are legitimate uses of the medical records by the insurer.  Using the medical records to assess the quality of the diagnosis is fine or for direct evidence contradicting a claimed impairment.  For instance: 

• It may be legitimate for the insurer to question a diagnosis of fibromyalgia if the tender points test is not done;

• It may be proper for the insurer to consider statements in the medical records that directly disprove a claimed impairment. If inability to twist the neck is a claimed disability, and physical therapy records show full range of movement of the neck, using the records to show there is no neck limitation is legitimate.     

So what’s the problem?

The problem is that the insurers treat the absence of evidence of vocational impairment as evidence of absence of an impairment: if the medical records don’t say you are impaired, then the insurer will conclude you are not impaired.  But, doctors don’t maintain their records to show current vocational impairment.  They maintain the records to address two things:

• Diagnosis: whether the conditions by which a disorder is diagnosed are present and what testing is necessary to show it; and 
• Treatment: what treatments have been tried, and whether the treatment alleviates the condition and side effects resulting from the treatment.   

If there is something relevant to your ability to work, whether observed by the doctor or that you report to the doctor, but is not relevant to diagnosis or treatment, there is no reason for the doctor to note it in the records.  For instance, if a doctor has treated a patient for years for spinal stenosis, the diagnosis was confirmed years ago by an MRI, and all treatment modalities have been exhausted, the doctor is probably not going to note on the medical records that the patient winced when climbing on the exam table, since that fact will change neither the diagnosis or treatment.  The absence of a note of wincing, however, will be interpreted by the insurer showing the patient is not experiencing pain.

This can happen with any patient who is has a long-term largely stable condition where treatment options have been exhausted, such as back pain, fibromyalgia, traumatic brain injury, carpel or cubital tunnel syndrome, or chronic Lyme disease.  But, if the doctor has not noted for two years your reports of pain or his observation of you experiencing pain, the insurer is going to use that absence of evidence as evidence that the impairment is absent.  Particularly when paired with ambiguous surveillance, this can be a basis for the insurer to deny benefits that can be hard to attack.  

How do you fight this?  As I have repeated many times in the blog, you need to tell the doctor the things you experience that show you cannot do your job, and make sure he notes it in the medical records.   Explain to your doctor that the insurance company is going to look to the medical records to assess your ability to work, and make sure he writes down anything that will show you can't do your job.  On my website, I have posted an article on this issue.  

No doctor went to medical school to fill out insurance company forms.  But, I have found that most doctors in Connecticut want to help their patients get disability benefits and win Connecticut LTD appeals.  Show respect for their time by offering to pay for their work, and be upfront and ask for what you need.  You are likely to get the cooperation you need to succeed in a long-term disability claim or LTD appeal in Connecticut.

33% of Social Security Disability Claims are Based on Mental Disorders; 27.7% are Musculoskeletal

The law firm Lane Powell, a Pacific northwest firm with an employer-side ERISA practice, has a great post here about the recent report from the Social Security Administration breaking down types of Social Security disability claims by type of claim and region.  It also has a good discussion of the significance of social security determinations in long-term disability benefit denials and appeals.  I've discussed this issue as well in a prior post. 

It is significant that the combined mental disorder/musculoskeletal conditions amount to 50% of social security disability income claims.  These conditions present some of the more difficult issues in winning an initial long-term disability claim or disability appeal because the insurers claim objective medical evidence doesn't exist to support the claims.  For these claims, it is important to work closely with your doctors to make sure the medical records reflect that all the standard diagnostic criteria are present, and the records contain a discussion of how the condition affects your ability to do your job.  As a Connecticut LTD lawyer, I know how important it is to work with the claimant's doctor to establish the impairment, and the effect of the impairment on the claimant's ability to work.  

The Insurance Company’s Interview: The One Rule You Need to Follow to Make Sure You Don’t Let the Interviewer Push You to Overstate Your Disabilities

The Interview and Its Dangers

A danger area for long-term disability claimants is the in-person interview.  The interview is usually one part of the entire process of evaluating a claim, including an independent medical exam and surveillance.  It is sometimes done during an initial application for long-term disability benefits or while an appeal of a benefit denial is pending, but it is most common when the insurer is reevaluating the claim that it is currently paying.  As you can expect, it is a fraught area for claimants, but maybe not for the reasons you think.  

As you would expect, one part of the interview is to observe you and see if you do anything that is inconsistent with the limitations you claim, such as did you sit still for an hour when you claim you can only sit for fifteen minutes.

What you may not realize is that one purpose of the interview is to set you up for the surveillance.  In many of the interviews, the interviewer appears to push the claimant to claim greater impairments than the claimant has claimed in the past.  You may think that is helpful for you, since the more impairments you have, the less likely it is you can do your job.

It is not helpful, and it can scuttle your claim.  The insurance company will typically conduct surveillance after the interview.  If you do anything in the surveillance that is at all inconsistent with what you claim your disabilities to be, your claim is likely to be denied.  Even if the activity shown on the surveillance is consistent with you not being able to do your job, the insurer will use it to discount everything else you say.  For instance, if your job requires lifting 30 pounds, it shouldn’t make a difference if the surveillance shows you lifting 15 pounds.  But, if you claimed in the interview that you could only lift 5 pounds, the insurer will assert that you lied about not being able to lift 15 pounds, and that this discrepancy means that nothing you say about your impairments can be believed.  

The Rule

How do you avoid this?  By following the same rule that I give to my clients before testifying in court.  In both instances, you want to appear to be credible by answering the questions, but you do not want to be pushed around in making your responses.  So, here’s the rule:

• Listen to the question.
• Think about what you are being asked.  Don’t worry so much what your response will be.  If you have really understood the question, your will make a good response.
• Answer the question, and only the question: when you have answered it, stop.  Don’t volunteer information.  Don’t start speaking again if the interviewer silently stares at you.  The interviewer is doing that to try to get you to start speaking again.

There are some corollaries to the Rule.  If you don’t understand a question, you can’t answer it.  It is the interviewer’s job to ask you a question you understand.  Ask for the question to be repeated or rephrased if you don’t fully understand it.  If you don’t know what to do, ask for the question to be repeated.  Make sure you are accurate with your level of recall or certainly.  If you are asked if you can do something specific, state accurately whether it is something you can do always, never, sometimes, occasionally, etc.  Hedging is fine, and will protect you against a charge of lying if the surveillance shows you doing something that you said you sometimes can’t.

Be particularly careful in responding to leading questions, that is, questions that can be answered by a yes or no answer.  Before answering, make sure your answer applies to each part of the question.  It is a good idea to always ask for leading questions to be repeated to make sure you understand them.  

Telling the truth is the most important thing.  Don’t let the interviewer push you or lead you into saying something that is not the absolute truth.  By following the Rule, you will have your best chance to avoid this.  So, during the interview, be calm, relaxed, focused, present in the moment, and listen to those questions!