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Malingering: Why SSA Must Proceed With Caution

May 11, 2012

Malingering is defined as pretending or exaggerating incapacity or illness as to avoid duty or work (http://www.merriam-webster.com/dictionary/malingering). People may malinger for a variety of secondary gain motives, which may include financial compensation, avoiding work, school or military service, obtaining prescription drugs, or simply to attract attention or sympathy.  Malingering presents a problem for SSA when it comes to determining disability, however, SSA must be careful about how possible malingering is investigated.
In the past, ALJs had the option to order tests from Disability Determination Services (DDS) to determine whether a claimant is malingering. The most widely-used tests were the Test of Memory Malingering (TOMM) and the Rey Memory Test.
The TOMM is a 50 item visual recognition test. It is specifically tailored to be sensitive to malingering while at the same time, insensitive to a wide range of neurological impairments, such as traumatic brain injury and dementia. The test consists of two learning trials and an optional retention trial. The results are based on two cut-off scores: below chance and criteria based on head-injured and cognitively impaired individuals. The examiner uses the TOMM manual to evaluate the results.
The Rey Memory test was devised by Andre Rey. It consists of the examiner showing the claimant a page of items for 10 seconds and instructing them to memorize 15 items. After the page is taken away, the claimant would then be asked to re-produce as many of the items as possible either immediately or after a short delay.
Beginning January of 2012, SSA ordered DDS to deny ALJ requests for malingering tests. This is an important step for claimants and their representatives, due to the fact that these tests were entirely too subjective. A claim would be completely denied by the ALJ if the state examiner conducting the TOMM or Rey Memory Test felt the claimant was malingering based on the test results. There is no set “gold standard” for malingering that can be used across the board, making the use of these tests unfair. In the audit report Consultative Exams at the Indiana Disability Determination Bureau, the Inspector General stated: “[y]ou cannot prove malingering with tests; there is no test that, when passed or failed, conclusively determines the presence of inaccurate patient self-report. Even a high likelihood of malingering does not preclude severe limitations resulting from a genuine MDI (Medically Determined Impairment).” (please see http://oig.ssa.gov/sites/default/files/audit/full/pdf/A-05-10-21061.pdf for the complete audit report)
While it is important for SSA to discover a malingering claimant as quickly as possible, this cannot be done with one Consultative Exam alone. The combination of medical records, observations of the claimant, as well as any consultative exams, is what SSA should be looking to in order to evaluate malingering.

Written by Anna Westfall & Attorney Andrew November

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