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Determination of Malingering in Disability Evaluations
Roger Z. Samuel, MD, and Wiley Mittenberg, PhD
Primary Psychiatry. 2005;12(12):60-68
Focus Points
• Malingering has been estimated to occur in 7.5% to 33% of disability claimants.
• Because malingering is difficult to detect solely on the basis of unstructured interviews,
clinicians should use as many sources of information as possible, including interviews with
claimants, treatment providers, family members, and co-workers; clinical records; psychological
test reports; laboratory investigations; and work reports.
• Factors that suggest the presence of malingering include motivation and circumstances of the
claim that suggest determinants other than illness, atypical or exaggerated symptoms,
inconsistencies in the presentation of claimants in interviews, and activity and behavior that is
incongruent with the claims.
• Factors that argue against malingering include aggressive treatment, objective collateral
corroboration, obvious and significant losses, and self-defeating behavior.
Abstract
Malingering in disability claimants is the act of conscious, gross exaggeration of symptoms or
impairment to obtain or maintain disability income. Malingering can be a complex issue for the
inexperienced practitioner. A systematic examination of the provenance of the claim using as
many sources of information as possible is necessary to make a determination about the
presence of malingering to a reasonable degree of medical certainty. A multifaceted examination
of the factors discussed in this article, without dependence on any one of them, provides a
practical framework in which to make decisions. Circumstances of the claim, claimants’
symptoms, and behavior in and out of the interview situation, need to be investigated in detail to
elucidate the presence or absence of malingering. Psychologic tests are useful adjunctive
measures that can help determine malingering.
Introduction
One of the most demanding conditions to assess is malingering, especially in civil disability
cases. Assessment of malingering is frequently requested by referral sources. Malingering has
been present in a myriad of forms throughout the ages. One of the original uses of the term was
in reference to the deliberate evasion of military duties.1 In the field of psychiatry, malingering is
often an issue in criminal situations. There is published work on the detection of malingering in
such cases. However, less work is published on the clinical determination of malingering of
psychiatric disability in civil cases. The detection of malingering involves research documenting
the ability of various indicators to be sensitive to persons known to be malingering. The
determination of malingering refers to how the findings are compiled and integrated to arrive at a
conclusion that an individual is “more likely than not” malingering. This article provides a
practical approach to the determination of malingering in disability evaluations from both a
psychologic testing perspective and a clinical perspective. These evaluations can occur in the
context of long-term disability insurance, social services disability insurance, workers
compensation, or personal injury. The issues are likely the same regardless of the nature of the
financial incentive.
Definition
Malingering is defined in the Diagnostic and Statistical Manual of Mental Disorders, Fourth
Edition-Text Revision (DSM-IV-TR)2 as the intentional production of false or grossly
exaggerated physical or psychological symptoms, motivated by external incentives such as
avoiding work or military duty; obtaining drugs or financial compensation; or evading criminal
prosecution.
The DSM-IV-TR further suggests that malingering should be strongly suspected with any
combination of the following: Medicolegal context of presentation (as in disability evaluations),
marked discrepancies between claims and objective findings, lack of cooperation with
evaluations or treatment, or presence of antisocial personality disorder. Antisocial personality
disorder is not usually found in disability claimants, especially those with private disability
policies, most likely because claimants need good employment capabilities and histories in order
to get jobs in which they are eligible for such policies. However, the other three factors usually
occur.
Although this definition has been criticized by certain authorities in the field,3 it is a useful
starting point in the process of identifying malingering in disability claimants. The crux of this
definition is that it is the conscious production of false or exaggerated symptoms, or
exaggeration of the impact of psychiatric symptoms or conditions on an individual’s functioning.
Slick and colleagues4 proposed research diagnostic criteria for malingering cognitive dysfunction
that combine information from the psychiatric interview with psychologic test results. The
diagnostic criteria are probabilistic, and similar to National Institute of Neurological Disorders or
American Academy of Neurology diagnostic criteria for other conditions. The criteria may also
be informative in disorders that can be associated with cognitive complaints such as chronic
pain.5
Rogers3 has suggested that the DSM-IV-TR criteria are minimalistic and difficult to apply. His
argument is that the requirement for determining internal versus external motivation creates a
false dichotomy between factitious disorders and malingering, and that in clinical practice
overlap often occurs between these conditions. He further argues that the DSM-IV-TR criteria:
Do not specify the psychological or behavioral parameters that suggest voluntariness of
symptom production or that assist in differentiating pursuit of the sick role (a psychological
conclusion) from pursuit of financial or other external goals (a behavioral conclusion).3
Rogers conceptualized exaggeration of symptoms by claimants as adaptive behavior. Claimants
with a genuine, significant disability who exaggerate the severity of their reported symptoms
during an evaluation can be considered as uttering a plea for help. Claimants with mild
symptoms who know that these symptoms do not constitute a compensable disability, and who
grossly exaggerate their symptoms in order to obtain compensation can be considered to be
malingering.
Two models that Rogers proposed for detecting malingering are the Threshold Model for
Consideration of Malingering and the Clinical Decision Model for Establishing Malingering. The
Threshold Model suggests that malingering should be suspected when psychologic or physical
symptoms are accompanied by one or more specific criteria. The first criterion is suspicion of
voluntary control of symptoms as demonstrated by one or more indicators, which include bizarre
or absurd symptomatology, atypical symptomatic fluctuation consistent with external incentives,
or unusual symptomatic response to treatment that cannot otherwise be explained (eg,
paradoxical response to medication). Criteria also include atypical presentation in the presence of
environmental incentives (eg, disability claim, tort action, obtaining drugs, shelter); atypical
presentation in the presence of noxious environmental condition (eg, prosecution, military duty,
undesirable work); complaints grossly in excess of clinical findings; and substantial
noncompliance with evaluation or treatment.
According to the Clinical Decision Model for Establishing Malingering, specific criteria must be
present. Psychologic or physical symptoms must clearly be under voluntary control as
manifested by one or more indicators, which include patient acknowledgment of voluntary
control of deceit, gross symptom production that is inconsistent for physiologic and anatomic
mechanisms, direct observation of illness production, discovery of paraphernalia or substances
explaining the production of physical symptoms, and confirmatory laboratory testing (eg,
absence of electroencephalograph abnormalities during an observed “seizure”). Other criteria
include clinical certainty that illness production occurs in response to pursuit of financial gain,
shelter, or drugs, or avoidance of work, military duty, prosecution, or legal consequences;
another disorder, if present, cannot explain the current symptoms; and evidence of desire to
assume the sick role, if present, cannot explain the totality of current symptoms.
One problem with Rogers’ Clinical Decision Model is that the first criterion is almost never
obtained in psychiatric disability evaluations or is very difficult to obtain. Both Rogers’
Threshold Model and the DSM-IV-TR indicators are intended for screening purposes.
Psychiatric disorders are notoriously easy to malinger as they are defined by subjective
complaints in the absence of objective tests to validate diagnoses. Treaters accept complaints
because their role is to help individuals who are often reluctant to acknowledge the presence of a
psychiatric disorder and to undergo treatment. The subjective truth is often accepted as the truth
in psychotherapy, and therapists assess their patients with this notion in mind.
A mental disorder to consider in the differential diagnosis of malingering is factitious disorder,
which is described by the DSM-IV-TR criteria as being the “intentional production of physical
signs or symptoms” in order to assume the sick role. According to this definition, there is an
intrapsychic need rather than external incentive. The requirement for finding internalized
motivation may create difficulties in clinical practice. Rogers3 quotes Fenichel as writing that
secondary gain cannot be the sole criterion for assumption of the sick role, since external or
secondary gains are inherent in all illness. Fenichel proposes that the following features suggest
motivation for the sick role: strong masochistic needs; sickness that allows inappropriate
regression and avoidance of adult (especially sexual) responsibilities; illness that symbolizes
anger at or conflict with authority figures; psychiatric or medical care that fulfills massive
dependency needs; or illness that symbolizes attempts at mastery of past trauma (eg, repetition,
compulsion). According to the DSM-IV-TR, external incentives negate the factitious disorder
diagnosis and suggest malingering.
Epidemiology
In a 1961 report about 50 individuals that they were unfit to work after head injury, Miller6
revealed an inverse relationship between degree of disability and severity of injury as well as an
absolute failure to respond to therapy until compensation issues were settled. After settlement, 48
individuals were able to resume work. Base rates of malingering and symptom exaggeration
were estimated by Mittenberg and colleagues,7 who reported from a survey of the American
Board of Clinical Neuropsychology membership that 30% of disability cases involved probable
malingering and symptom exaggeration. This was estimated to be the base rate for malingering
and symptom exaggeration. A quantitative review of 11 empirical studies of mild head injury
found similar base rates using objective diagnostic measures.8
Rosenfeld and colleagues9 found that the base rate for malingering in neuropsychologic
examinations in the clinical context is much lower than the rate set by Mittenberg and
colleagues.7 They estimated a 15% base rate of malingering and neuropsychologic examination
in clinical contexts.
Base rates of malingering in forensic context are difficult to accurately determine as claimants
who have prevailed in litigation tend not to admit that they faked or exaggerated symptoms or
complaints. Public opinion surveys suggest that purposeful misrepresentation of compensation
claims is viewed as acceptable by the general population.10,11 Various studies have suggested that
base rates can vary from 7.5% to 33%.12-15
Clinical Determination of Malingering
Studies have shown that clinicians lack efficacy in detecting malingering or simulation solely on
the basis of unstructured interviews. Psychiatrists ddetect approximately 50% of lies in
interviews, which is no better than that which would be discovered by chance.16-18 While lying or
simulation are not to be directly equated with malingering, these studies do inform that clinicians
cannot distinguish between genuine, fake, or exaggerated complaints on the basis of demeanor.
Although certain investigators are testing functional magnetic resonance imaging use in the
detection of lying, thess works are still in the preliminary stages and are not available in clinical
practice. Therefore, it is imperative that as many sources of data as possible should be utilized.
Malingering has to be characterized as an entity similar to a syndrome in clinical practice (ie, an
aggregate of features associated with and constituting a picture of a condition). It can range from
very mild and subtle presentations to flagrant cases. There is no litmus test for malingering. No
single item, test, or fact (including psychologic tests) rules in or rules out malingering (other than
perhaps the direct admission of the claimant or cognitive test performance that is significantly
less accurate than would occur by chance).
As with all forensic evaluations, malingering must be suspected in all disability claims.
Malingering must be included in the differential diagnosis, and factors to rule in or rule out
malingering need to be actively considered and then accepted or rejected.
Another important point is that malingering can coexist with psychiatric disorders. Individuals
can have one psychiatric disorder and malinger in the way of faking or exaggerating symptoms
of other disorders. Likewise, individuals can have a psychiatric condition and exaggerate or fake
the symptoms of that condition, the persistence of symptoms of that condition, or the impact of
those symptoms on their functioning. Any one of these constitutes malingering.
The demeanor, affect, facial expressions, and behavior in the interview should not be used as the
sole criteria for determining the presence or absence of malingering, because psychiatrists and
other clinicians are inaccurate in their detection of lying or simulations in interviews. The
demeanor of the claimant is usually not a helpful clue in determining the presence of
malingering.
Techniques utilized to increase the accuracy of detection of malingering include using multiple
sources of data, prolonged interviews, and psychologic tests that assess effort or “faking” during
test taking. Forensic evaluations necessitate an examination of the nexus between compensable
damage and symptoms that are corroborated by multiple data sources and not just by subjective
complaints by the claimant. Clinical approaches may therefore not be adequate for differentiating
exaggerated or malingered presentation from atypical cases.
It cannot be overemphasized that as many sources of data need to be used as are available. The
most obvious source of information is the claimant. Other sources of information include clinical
records, laboratory investigations, correspondence, collateral interviews, applications by the
claimant, and psychologic test reports.
Collateral interviews include direct interviews of treatment providers (both psychiatrists and
psychotherapists), interviews of family members, interviews of coworkers or supervisors if
possible, and interviews of friends or acquaintances if possible and relevant.
Reviews of records are another source of helpful information. These include records of all
treatments providers of psychiatry or psychotherapy, as well as providers in other specialties (eg,
general practitioners) who may have documented or provided treatment for the claimant’s
psychiatric symptoms. Records of applications for health insurance or other such policies are
also surprisingly good sources of information; they may reveal statements by claimants that
conflict with disability claim statements as the needs of each type of claim are diametrically
opposed. Health or life insurance applicants must look as healthy as possible and disability
claimants must look as sick as possible. Records of investigations by regulatory authorities or
court hearings involving claimants are also very useful. Cripe19 criticized the use of records in
determining an individual’s condition, pointing out that records reviews are based upon limited
sampling, are based on different report writing styles, are an indirect method with a lack of direct
contact, narrowly focus on only part of a clinical evaluation, and provide subjective biased
interpretations There is also a lack of empirical studies to validate this method. These limitations
would be evaded by the use of clinical interviews.
Getting as many sources of data as possible helps get as accurate a picture of the claimant’s life
as possible and helps to track chronologically the sequence of symptoms and events pertinent to
the claim. These sources of data are subsequently utilized to determine if the claims of illnesses,
symptoms, or impairment caused by illnesses, are corroborated or contradicted by other sources
of information.
Prolonged interviews have also been utilized to determine the validity or accuracy of claims. It is
more difficult to maintain an exaggerated stance or maintain false symptoms over a prolonged
period of time (eg, 4–6 hours), and fatigue as the interview progresses leads to mistakes or
trouble remembering any falsehoods that may have been verbalized. Some evaluators interview
claimants in two separate sessions, typically prolonging the second interview. This is helpful in
obtaining information between sessions and then clarifying such information with the claimant in
the second session. In addition, claimants sometimes do not recall what they said during the first
interview and contradict themselves in the second interview.
Interview and history taking helps determine the consistency of report or impairment. According
to Reynolds,20 the key to appropriate determination consists of three components: Congruence of
the current symptom presentation with the known history and facts surrounding the injury (in this
case, the illness); congruence of the symptoms in juxtaposition with one another (ie, the internal
consistency of the symptom presentation); and congruence of the course of symptom
development and history with known (ie, probabilistic) outcomes or sequelae with like injuries
(in this case, illness).
Both forensic examiners and clinicians may be reluctant to give an opinion of malingering for a
variety of reasons, which include litigation fear, concerns about error, and the pejorative nature
of the term. One way of getting around this has been to utilize the term poor motivation or poor
effort rather than malingering. However, this is not without disagreement either. Slick and
colleagues4 suggested that redefining malingering in terms of poor motivation is euphemistic and
inappropriate. As cited by Sreenivasan and colleagues,21 they therefore gave alternative
descriptors of definite, probable, and possible to summarize evidence of exaggeration or
fabrication of cognitive dysfunction.
There are multiple reasons why claimants might exaggerate symptoms or impairments. Rogers3
posited that malingering represents an adaptive course of action in order to achieve a specific
objective. Mittenberg and colleagues22 discussed a tendency among patient’s with mild head
injury to reattribute benign emotional and other complaints to the head injury.
Binder and Rohling23 concluded that patients with incentives had more abnormalities than those
with more severe injuries but without financial incentives. There was an association between the
presence of financial incentives and more severe symptoms after closed head injury. As this
association was particularly strong in individuals with mild head injury, they concluded that
financial incentives do have an effect on levels of disability and symptoms.
Courtroom decision makers have a tendency to put more weight on the opinions or testimony of
treaters rather than on forensic examiners, who are sometimes viewed as hired guns. Treaters
sometimes lose sight of neutrality in their advocacy of their patients’ position, at times to the
detriment of determining the facts. Reasons for this include overidentification with their patients,
lack of access to all available information, acceptance of patients’ reports and requests at face
value without objective validation, altruism, and narcissistic defensive reactions (in a desire to
avoid a different opinion which may be seen as belittling their opinions or competence).
There are cases in which treaters lose their objectivity and seem to collude with their patient
claimants in adhering to a position of impairment and disability in the face of strong evidence to
the contrary. This may be due to loss of neutrality as discussed above, or may sometimes be due
to more nefarious reasons such as a desire to continue to obtain financial benefit from a patient
who has to be in treatment to continue to receive benefits. Sometimes claimants seek out
treatment from friends, associates or relatives where there is a clear loss of objectivity and often
a clear goal of obtaining and maintaining disability.
Psychologic Testing
Psychologic tests can provide objective evidence of exaggerated cognitive or emotional
symptoms that meets standards for the admissibility of scientific evidence set forth in Daubert
versus Merrell Dow Pharmaceuticals.24 These standards may guide trial judges in decisions
about the validity of an expert’s opinion in disability claims that become the subject of
litigation.25 Signs of malingering may be present on standardized tests of mental status, tests used
to evaluate personality characteristics, and on measures that are specifically designed to evaluate
exaggerated cognitive impairment.
Standardized Tests of Mental Status
Disability evaluations frequently include assessment of the claimant’s attention, concentration,
memory, and intelligence. The Wechsler Adult Intelligence Scale, Third Edition, (WAIS-III)26 is
typically used to assess the claimant’s intelligence quotient, and contains measures of attention,
concentration, verbal reasoning, nonverbal problem solving, and speed of thought process. The
Wechsler Memory Scale, Third Edition, (WMS-III)27 is the most widely used means of testing
verbal and nonverbal memory efficiency, and also contains tests of concentration and attention
span. A claimant can produce reduced scores on the WAIS-III and WMS-III by intentionally
giving incorrect answers, but a convincing level of impairment is more difficult to portray.
Malingerers often obtain IQs or memory indexes that are not consistent with daily functioning or
the claimed psychiatric diagnosis.7 For example, test scores in the borderline mentally retarded
range (70–79) are inconsistent with independent global functioning or with the clinical
presentation of dysthymia or anxiety disorders. The malingered pattern of component ability
scores on the Wechsler tests is also often discrepant from the pattern produced by actual
cognitive impairment. For example, performance on measures of attention span (such as digit
repetition) that is significantly poorer than performance on memory tests (eg, story recall)
indicates exaggeration because it is not possible for an individual to remember more information
than they can initially attend to.28 Performance on tests of recall (eg, “Tell me the words I asked
you to remember”) that is significantly better than performance on measures of recognition
memory (eg, “Did I ask you to remember the word pen or pencil?”) also suggest exaggeration. 29
Regardless of the extent of memory impairment, it is in comparison easier to correctly recognize
information and relatively more difficult to spontaneously recall information.
Personality Tests
The Minnesota Multiphasic Personality Inventory, Second Edition (MMPI-2)30 is the most
frequently administered psychologic test for assessing emotional and somatic complaints in the
context of disability evaluations. The MMPI-2 contains scales that assess the claimant’s selfreported Axis I symptoms and scales that assess the validity of the claimant’s complaints. Scale
scores have an average of 50, and a score >65 may be consistent with an Axis I disorder.
Obvious differences between the observed and self-reported magnitude of the claimant’s
symptoms suggest exaggeration. A score ≥80 on the F (faking) validity scale probably reflects an
attempt to claim excessive impairment. Scores of ≥70 on the L (lie) validity scale similarly
suggest distortion of reported symptoms in order to manipulate the impression conveyed.31
The Millon Clinical Multiaxial Inventory, Third Edition (MCMI-3)32 assesses the claimant’s
reported Axis I and Axis II symptoms. Scores >75 on the Axis I scales and >85 on the Axis II
scales may be clinically significant. The MCMI-3 also contains scales that assess the validity of
the claimant’s complaints. A score >75 on the debasement index suggests that
the claimant presented more troublesome emotional and personal difficulties than are likely to be
uncovered upon objective evaluation.
The Structured Interview of Reported Symptoms33 and the Miller Forensic Assessment Test6
evaluate exaggeration of psychotic symptoms. Interview questions assess the presence of
symptoms that are not typically comorbid, reportedly follow an atypical course, do not actually
characterize Axis I disorders, are more extreme than clinically typical, occur in response to the
interviewer’s suggestions, and are reported but not observed during the course of the interview.
Significant numbers of such reported symptoms indicate malingering.
Tests of Exaggerated Cognitive Impairment
Claims of concentration and memory impairment are common in cases of disability related to
mood disorders, anxiety disorders, pain, and dementia due to degenerative, traumatic, infectious,
and other etiologies. Several tests have been specifically designed to assess the validity of
concentration and memory impairment. The Test of Memory Malingering34 assesses visual
memory for a series of pictures. The Portland Digit Recognition Test35 and Victoria Symptom
Validity Test36 both assess recognition memory for numbers. The Word Memory Test37 assesses
the accuracy of verbal memory for a word list. These tests appear to be demanding measures of
concentration and memory, but are actually insensitive to impairment caused by Axis I disorders.
Accuracy scores that are lower than those actually obtained by patients with these diagnoses
indicates probable exaggeration. Each question on these tests has two possible answers, one
correct and one incorrect. A claimant who could not concentrate on or recall any of the test items
would answer approximately 50% of the questions correct just by chance. Accuracy scores that
are significantly lower than would be obtained by guessing (eg, 30%) indicate that the claimant
knew the correct answers and intentionally gave incorrect answers, and are therefore definitive
evidence of malingered concentration and memory impairment.
The Rey-15 item test is another measure of exaggerated visual memory difficulty. The Rey
assesses recall for pictures and numbers presented simultaneously. This test has poor specificity
and sensitivity, and is less reliable than the procedures described above.38
Limitations of Psychologic Tests
Psychologic testing often provides useful information in the context of disability evaluations, but
as with any diagnostic procedure, this utility has limitations. Approximately 40% of claimants
that are exaggerating symptoms will not be identified by standardized tests of mental status or
tests designed to assess the validity of cognitive impairment. Only approximately 30% of
malingering claimants score below chance levels on cognitive tests, and approximately 40% of
cases that involve symptom exaggeration can be identified by validity scales on personality
tests.27 The true positive diagnostic accuracy rate (sensitivity) of psychologic tests is usually
positively related to the rate of false negative diagnoses (specificity), the prevalence of
exaggeration for the claimed disorder, and the complaints of the individual claimant (eg,
affective versus cognitive symptoms, moderate versus severe functional impairment). Informed
clinical practice therefore requires that multiple sources of information be considered.
Factors For and Against Malingering
Heilbrun39 suggested that factors that determine malingering should be broken down into three
components—history, motivation, and behavior. Sreenivasan and colleagues21 provided a
sample checklist for the assessment of amplification/malingering in head injury in which they
created a model with which to weigh multiple factors in assessing head injury claimants. They
broke down the components into the following: neuropsychologic testing issues, congruence of
testing and behavior, congruence of symptoms or signs with clinic data, nonclinical factors,
presence of psychiatric or other conditions that may contribute to amplified or atypical
symptoms, and miscellaneous (eg, history of litigation, lying, malingering, criminal activity, job
track record, and prior responses to injury).
Malingering should be investigated by a search for features or symptoms in the following four
domains: Motivation/circumstances, symptoms, claimant interview presentation, and
activity/behavior outside interview (Table 1). The degree of correlation with malingering is
proportionate to the number of the abovementioned factors and can be reported as highly
consistent with malingering, moderately consistent with malingering, or minimally consistent
with malingering. There are also factors indicating that a person may not be malingering and that
the claim may be justified (Table 2).
Illustrations of Malingering
Motivation/Circumstances
Financial Incentive
One of the most common reasons for malingering is the financial incentive in obtaining income
from the claim.
Solution to Socioeconomic Problems
Given economic and business cycles and social circumstances, sometimes getting disability
payments is the only or best solution to a financial crunch. Sometimes this is very apparent in
physicians who make claims for disability. One such physician was stuck with few options for
practice. Due to child abuse conviction and false information provided on medical licensing
board forms, and alcohol and prescription drug abuse, this physician lost his license to practice in
the state in which he had a pain treatment practice. Due to patient neglect allegations and the
earlier listed problems, he also was unable to get medical malpractice insurance coverage. In
addition, he developed a bad reputation in the medical community and his referrals dwindled.
The state in which he lost his license reported this fact and the only other state in which this
physician was licensed also withdrew his medical license to practice there based on reciprocity
issues. The physician therefore could not practice in any of the states in which he had licenses. It
was in the midst of these circumstances that he made a claim for being disabled.
Antisocial Acts/Behavior
Antisocial acts and behavior consist of those that conflict with regulations, ethics, rules, laws,
and other codes of conduct required of professionals or laypeople. An example of this is a
podiatrist who had an unusual hallucination symptom claim. The psychiatric issues came to the
forefront after a criminal investigation into insurance fraud. Prior to that, he did not have any
psychiatric history. As a result of insurance fraud conviction, he was unable to practice as a
podiatrist and needed income to pay for bills and his legal expenses. He pointedly avoided
mentioning the fraud investigation to disability insurance agents until he was repeatedly
questioned, upon which he admitted it. He also utilized the diagnosis of bipolar disorder in his
criminal case as a mitigation factor in the sentencing phase.
Career Dissatisfaction
Career dissatisfaction is frequently seen in physicians who have very busy practices, diminishing
financial rewards due to malpractice and managed care intrusion, and lack of time and
opportunity to enjoy themselves outside the work environment.
Work Conflict
In cases where an individual has a conflict with coworkers or supervisors, he or she may choose
to use disability claims as a means of getting out of the untenable work situation. It is plausible
that the features or symptoms of a genuine mental condition (eg, irritability or bizarre behavior
that alienates coworkers, reduced job performance due to decreasing cognitive abilities)
contributed to the work situation becoming untenable. This can be investigated through
workplace reports and interviews with coworkers and supervisors.
End of Career
Some individuals claim to be disabled at retirement age or after retirement because disability
payments provide a source of income of sometimes up to 5 years between age of retirement and
social security benefits. One such claim was made by an accountant in his 60s who had been in
treatment for many years for major depressive disorder (MDD) with no change in his clinical
status. He functioned as an accountant for a city and received good work reviews. As soon as he
was eligible for retirement from his city job, he retired and then almost immediately made a
claim for disability based on MDD.
In Treatment for Documentation Purposes
Sometimes an individual will not seek treatment or refuses to get treatment for claimed
psychiatric conditions until he or she is informed that one of the requirements of the disability
insurance policy is appropriate treatment by a medical professional. It is at this stage that the
individual then enters treatment. Such individuals are often not fully compliant or are resistant to
appropriate intervention for their claimed psychiatric condition.
History of Lying, Malingering, and Dishonesty
A past history of lying and malingering reveals a propensity for dishonesty that is relevant in a
current claim of disability.
Change in Diagnosis to Better Fit Policy Requirements
A change in diagnosis to better suit policy requirements is a sign of malingering. One example is
an individual who initially claimed to be disabled due to a cardiac condition. Upon deeper
examination of his cardiac situation by the disability insurance company and independent
examination, it turned out that he did not have a severe cardiac condition and that he was
unimpaired from a cardiac point of view. Upon getting this news, the claimant then made a
change in diagnosis to claim that he was depressed and therefore unable to function at his job.
Another example is a woman who was in treatment for postpartum depression. She did receive
disability benefits for 2 years based on this claim. However, after 2 years, she was informed by
the disability insurance company that her policy only provided a disability benefit period of 2
years for mental health claims. At this point, the claimant and her psychiatrist made a change in
diagnosis to bipolar disorder and the claimant then requested ongoing disability payments,
arguing that bipolar disorder was a physical rather than mental condition.
Symptoms
Unusual or Atypical Symptoms
As is the situation in malingering in any circumstance, lay people frequently choose dramatic
symptoms or portray themselves as seen in the popular media. However, these dramatic or florid
presentations are often inconsistent with typical symptoms seen in the psychiatric conditions
being malingered. This also includes stretching of DSM-IV-TR criteria to make symptoms fit a
specific disorder (eg, specific phobia to describe a physician’s litigation anxiety about seeing
patients in a hospital). An example of unusual symptoms is the earlier mentioned podiatrist in his
mid-30s who made a claim for disability based on a new diagnosis of bipolar disorder. One of
the symptoms claimed was that of hallucinations of a female in the individual’s bedroom. Not
only was the presence of visual hallucinations atypical, the specifics of the actual hallucination
were dramatic and varied each time the claimant talked to different people. He told the insurance
company representative that he saw a little old lady with green hair. He told his psychotherapist
that he saw a woman with green hair and green eyes. He had told an independent psychiatrist
who interviewed him that he saw a redheaded woman with green eyes.
Currently Asymptomatic With Claim of Future Decompensation
Some individuals are found to be in symptom remission for the anxiety or mood disorders based
on their report and their psychiatrist’s records and report, but they nevertheless claim that if they
were to return to their work, they would likely become symptomatic again due to the stress of the
work. This then becomes the sole basis for the claim. There appears to be an increase in this type
of claim especially in frequency of claims made by physicians.
Exaggeration of Symptoms/Impairment
There may be claimants who genuinely have symptoms which may not be severe enough to
cause impairment in functioning. Just as there are individuals who work while undergoing
treatment of mild to moderate psychiatric conditions, claimants may also start out in a more
severely debilitated condition and then improve such that their condition is no longer impairing
in severity. The claimants may still insist that they are unable to work. An example of this
situation is a cardiologist 47 years of age who claimed to have severe MDD with impaired
concentration and anhedonia. However, an examination of his past, both in his records and in his
interview, showed that during the time that he was making this claim the cardiologist went on a
3-week recreational holiday with his family. During this holiday he not only enjoyed himself, but
he also studied for a medical board examination which he subsequently passed.
Psychologic Test Results
These were discussed in detail above. Essentially, psychologic test results can provide evidence
of lack of effort or faking of symptoms. These can especially be helpful in examining claims of
impaired cognition such as with impaired concentration. The lack of evidence of poor effort or
faking on psychologic tests by itself does not rule out malingering. If enough factors are present
to suggest malingering, then malingering is a rational conclusion. In a somewhat paradoxical
twist, good performance on tests of malingering can actually substantiate a diagnosis of
malingering, as in a situation wherein an individual claims to have severely diminished
concentration that impairs job performance. Most treaters do not perform careful tests of
concentration but take their patient’s claims at face value. If such an individual is malingering
and undergoes psychologic testing, there are two possible outcomes. First, the individual would
not put in adequate effort and this may show up on tests of effort. Second, the individual could
put in adequate effort and his or her performance on concentration tests would not be impaired.
Therefore, even though psychologic testing would not show malingering based on tests of effort
or faking, it would show that when the individual puts in good enough effort, the concentration is
good. This then argues for the presence of malingering (ie, an exaggeration of impairment or a
false claim of impaired concentration).
Psychologic test results may be more helpful to rule in malingering than to rule it out, though it
may be that only appropriately validated psychologic tests meet Daubert standards24 for
admissibility in court. Daubert is more rigorous in terms of scientific evaluation of methods and
more flexible regarding the application of new methods. Since only psychologic tests have
known classification accuracy at this time, it might be argued by some that the clinical findings
provide valuable support for the psychologic test results rather than the other way around.
Symptoms Incongruent With Usual Course of Illness
Based on the current standard of care, the goal of treatment of certain psychiatric conditions,
such as MDD, is remission of symptoms. Even though there are treatment-resistant cases,
treatment remission is achievable with optimal treatment. Therefore, in an individual who has
not gone through the stages that would substantiate the presence of treatment resistant
depression, lingering mild to moderate symptoms as the basis of a claim of disability would be
suspicious for malingering. Remaining on subtherapeutic doses of medications or refusal to
maximize doses or therapeutic regimens for prolonged periods of time may be seen as indicators
of malingering.
Claimant Interview Presentation
Admission of Malingering
Admission of malingering is a rare event if it occurs at all. Some authors have suggested that an
empathic approach at the end of interviews with claimants in which the examiner discusses how
understandable it would be for an individual to feel forced to portray themselves in a more sick
fashion may bring about a concession from the claimant that they may be exaggerating or may
not be as ill as they claim. In the practice of Roger Samuel, MD, the lead author of this article,
such attempts have met with anger or derision. Despite best efforts, perhaps the examiner did not
come across quite as empathic or tactful as other authors may have been. Since a frequent
requirement of independent examinations is that the examiner should not provide any opinions or
recommendations to the claimant, it may not be appropriate for the examiner to suggest that the
claimant is malingering if this is framed in the form of an opinion. On the other hand,
confrontation of the claimant with discrepancies may be a viable technique in eliciting
admissions of exaggeration or falsifications.
Lack of Cooperation With the Examiner
Lack of cooperation may take the form of refusal to participate in the examination, refusal to
continue the examination after it has started, or selective provision and withholding of
information in the history. For example, a plaintiff in litigation against her employer (a school
district) for being sent to work while in pain claimed to be suffering from MDD. Athough she
was referred to the examiner by her attorney, on the advice of her attorney she refused to answer
questions about her past psychiatric history and substance abuse history, both of which were
relevant to her condition. Some malingerers act explosively or in an intimidating manner to get
the examiner to shorten the interview. Refusing to participate in or complete an examination
does not allow an independent examiner to get a full picture and may serve as a delaying tactic.
In such circumstances, it is still possible to produce a neutral report that may be helpful as long
as a disclaimer about the claimant’s participation is specifically noted. Relevant history from the
records and whatever the claimant provides in combination with a description of the mental
status of the claimant during the examination may be sufficient.
Discrepancies Between Interview Report and Documentation
Discrepancy between interview and documentation signifies false or exaggerated claims or
noncompliance. One example of such a situation is when a claimant insisted that he had been
fully compliant with office visits with his psychiatrists and with psychotropic medication
prescribed, while a review of his records revealed significant lapses in treatment with
psychiatrists as well as refusal to take or continue medications at various points in his treatment.
Activity/Behavior Outside Interview
Working During Period of Claim
Some individuals claim that they are disabled despite records revealing that they actually worked
during the claim, or are currently working. This is also seen in physicians who have ownoccupation policies, which provide them with disability insurance payments if they are not able
to work in their specialty. One example was a radiologist who claimed to have bipolar disorder,
which had never actually been diagnosed by any of his treating professionals. While claiming
that he was disabled and impaired, it was discovered that he was doing teleradiology as well as
osteoporosis treatment. Further investigation revealed a decline in his income in the years
preceding his claim.
Capacity for Recreation, Non-Work Activity
In individuals who claim to have severe psychiatric conditions such as MDD, ability to enjoy
their lives in recreational activities argues against the presence of a severe or impairing
psychiatric condition. One such claimant stated she could not continue to manage her consulting
business, while at the same time she led a very active life outside work. She traveled extensively,
volunteered in hospitals, volunteered for political campaigns, and went out socially to dinners
and dances. Another individual claimed he could not work as a salesman due to lack of
motivation, drive, and concentration. However, investigation of his activities outside work
revealed a tenacious and time consuming pursuit of litigation against his ex-wife after an
acrimonious divorce. He was so enraged at what he perceived as the unfairness of the legal
system (because judgments went against him) that he spent a considerable amount of effort and
time in pursuing appeals in court. This involved producing detailed appeals, which required
intact cognitive skills and persistence.
Functioning Well Except in a Particular Line of Work
As alluded to earlier, this is particularly the case in physicians who have an own-occupation
policy. The previously mentioned cardiologist made a claim that he could not work as a
cardiologist while at the same time he was working well as a bariatric physician. During the
claim period in which he said he could not concentrate well enough to be a cardiologist, he
studied for, took, and passed the Bariatric board examination. He was performing all the
functions of a physician but argued that he could not perform the functions of a cardiologist
because of concentration and future decompensation reasons.
Noncompliance With Treatment
Noncompliance includes refusal to see the appropriate professionals (eg, seeing general
practitioners rather than psychiatrists), refusal to take or persist with medications, refusal to
follow recommendations to see specialists, gaps in treatment due to missed office visits, or not
scheduling office visits. This also includes an unwillingness to adhere to medication regimens or
persist with medications for the slightest of reasons. Most psychiatrists are aware that virtually
all psychotropic medications do produce some side effects in the first few weeks of treatment
and that, given time, patients can usually adjust to and tolerate side effects. Some claimants go
on and off different medications every few days claiming that side effects prevent them from
continuing with any one medication for an adequate period of time and claiming poor response
to treatment.
Surveillance
Surveillance can provide objective evidence of behavior that is incongruent with claims. Even
though this is not quite as obvious as in other specialties (such as with back claimants who are
seen carrying out activities that a real back injury would preclude), surveillance does sometimes
reveal behavior outside treatment and examination situations, that strongly suggest exaggeration
or faking. An example is an individual who made a claim to an independent examiner that he
was homebound, anhedonic, and socially withdrawn. Contemporaneously-made surveillance
tapes revealed that the claimant had an active social life which included going out to dinner on a
yacht with friends as well as meeting business acquaintances in local coffee shops. He was seen
to be cheerful, communicative, and gregarious on the surveillance tapes.
Factors Arguing Against Malingering
There are several factors that may indicate legitimacy of a claim.
Aggressive Treatment
Malingerers tend to shy away from treatment that is stigmatized as potent or potentially
dangerous, such as electroconvulsive therapy or the use of antipsychotic medications or
medications requiring monitoring for organ safety (such as hepatic function monitoring with
divalproex). A willingness to accept and tolerate such interventions would argue against the
presence of malingering.
Objective Evidence
The presence of documented concerns, symptoms, and complaints from the claimant and family
members or from employers well before the issue of disability was raised also raises the
threshold of suspicion for malingering.
Obvious Losses
The presence of an objectively significant and documented loss precipitating the onset of
psychiatric symptoms (eg, the death of a child) suggests the validity of such symptoms.
However, this does not stop an individual with some depression from grossly exaggerating the
amount of his or her impairment.
Self-Defeating Behavior
Impaired judgement, impulsivity, and other symptoms due to psychiatric disorders frequently
lead to behavior that imperils the safety, relationships, or financial well being of affected
individuals. Thus, manic patients may spend foolishly and excessively to their monetary
detriment, putting themselves or their family into debt and at times dire financial straits. This is
to be contrasted with the carefully planned and executed schemes of an individual who engages
in insurance fraud. When the scheme is detected and punished, such an individual may claim, as
a means of mitigating the consequences, that the behavior was due to mania associated with
bipolar disorder.
Conclusion
Malingering is a condition, not an illness or clinical disorder, in which there is intentional
exaggeration and/or faking of symptoms or impairment for an external incentive. It can present
as subtle or flagrant forms. Clinical decision making should utilize multiple data sources
including interview of the claimant, records, collateral human sources of information,
surveillance, and psychologic tests. The totality of the picture rather than any individual piece of
data provides evidence for consistency with malingering, be it high, moderate, or minimal
consistency. PP
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Dr. Samuel is president and medical director at the Boca Raton Psychiatric Group in Florida.
Dr. Mittenberg is professor at the Center for Psychological Studies at Nova Southeastern
University in Fort Lauderdale, Florida.
Disclosure: Dr. Samuel is on the speaker’s bureau of Pfizer. Dr. Mittenberg reports no
affiliation with or financial interest in any organization that may pose a conflict of interest.
Acknowledgments: Drs. Samuel and Mittenberg would like to thank Neviana Nenov, MD, for her
help in preparing and reviewing this manuscript.
Please direct all correspondence to: Roger Z. Samuel, MD, President and Medical Director,
Boca Raton Psychiatric Group, 7284 W. Palmetto Park Rd, Suite 201S, Boca Raton, FL 33433;
Tel: 561-368-8998; Fax: 561-392-9170; E-mail: brpg7284@lycos.com.