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.  

MS Society Presentation on Managing Cognitive Symptoms and Fatigue in the Workplace

The  National MS Society has a great on presentation on dealing with cognitive deficits, that is, difficulties with thinking, remembering and concentrating, in the work place.  The presentation is geared to MS, but would also apply to any degenerative cognitive disease, such as Alzheimer's disease, fronto-temporal lobe disorders, Parkinson's, and side effects of opiods and other medications taken for chronic pain.

Cognitive deficits from degenerative diseases can present difficulties with long term disability benefit claims.  In the early stages, someone may look physically healthy, but have started to suffer cognitive problems.  Your boss may doubt that you are disabled if he sees you working out at the gym after  you requested a reduced work schedule due to cognitive issues resulting from fatigue.  To address the potential doubts, make sure you tell your doctors about the difficulties you are having with cognitive issues.  You consider getting a neuropsychological exam to provide a baseline for neurological function so you can prove that your cognitive difficulties have in fact declined.  

Proving a Disability Based on Sleepiness or Daytime Somnolence

Many medical conditions cause sleepiness or excessive daytime somnolence: side effects of drugs; poor sleep cause by sleep disorders such as sleep apnea; pain or discomfort caused by orthopedic injuries or digestive issues; narcolepsy; chronic fatigue syndrome; or chronic Lyme disease; or fatigue resulting from chemotherapy.  Sleepiness can be problem at work due to falling asleep at work or difficulty in concentrating due to fatigue.  While sleepiness can cause serious issues at work, it can be difficult to prove in applying for long-term disability benefits or appealing a disability benefit denial.  

• It can be difficult to establish disability based on daytime somnolence, either in an initial application for disability insurance benefits or appealing long-term benefit denial.  If you suffer from daytime somnolence, you should have your doctor administer the Eppworth Sleepiness Scale, which is a series of questions to assess the affect of sleepiness on your day-to-day function.  Here is a link the assessment.  It can be one of the ways to prove sleepiness resulting from medication, or from fatigue-related conditions.

• If you believe your sleepiness is caused by disturbed sleep for any reason, you may want to have a sleep study performed.  Connecticut has many sleep centers available for long-term disability benefit applicants.  A sleep study  can quantify the quality of your sleep, and can assess some of the causes of the sleepiness.  If you have been discussing your fatigue with your doctor, it will probably be covered by your insurance.  Make sure you follow up on any recommendations resulting from the study, such as use of a CPAP machine or medications such as Ropinirole for restless leg syndrome.  As I have discussed elsewhere in this blog, it is important that you actively pursue diagnosis and treatment of any condition on which you are claiming disability.

• If you primary complaint is the effect of sleepiness and that it harms your ability to think and reason (called “cognitive deficits”), you may want to get a neuropsychological test to assess the level of impairment.  I will discuss neuropsychological testing in a future blog post, but it is difficult to get an insurer to accept cognitive impairment without support by a neuropsychological test showing impairment. 

Daytime somnolence can be an important, but difficult to prove, part of a disability benefit application or an appeal of a disability benefit denial.  By analyzing how it is interfering with your ability to do your job, and figuring out what test to establish that, you can greatly increase the chance of prevailing on a long-term disability claim or appeal in Connecticut.