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Credibility of Claimant/Litigant

LTD / ERISA Disability Lawyers Orange, Riverside & San Bernardino Counties 

Credibility of Litigant / Patient

A Claimant's Credibility is Always Important

A claimant's credibility is always important and increasingly important when the disabling complaint is subjective and self-reported, such as pain, weakness, fatigue, or headache. Although self-reported symptoms are sometimes amenable to verification by laboratory or other diagnostic testing, that is not always the case. Moreover, there are some conditions such as fibromyalgia (FM) or chronic fatigue syndrome (CFS) whose symptoms may be completely disabling even when laboratory tests and x-rays are all normal.

In such situations, the decision to grant or withhold disability benefits may turn in large measure on a claimant's credibility.

A “Clearly Demonstrable Impairment”  

Disability claims typically have difficulty gaining traction if they are based solely on self-reported symptoms alone, no matter how credible they may be. What is additionally required is medical documentation of a “clinically demonstrable impairment” that normally produces the kind of symptoms complained of by the claimant.

For example, if a doctor or several doctors credibly document in the medical records that a claimant has severe and chronic pain consistent with a diagnosis of fibromyalgia (FM), which precludes work, that may constitute a “clearly demonstrable impairment,” even if laboratory tests, x-rays, imaging studies, and other diagnostic testing is normal.

When such an “impairment” is combined with credible documentation in the medical records from treating doctors of functional restrictions (e.g., unable to do even a desk job because of severe pain), that should then result in a favorable benefits-decision. Cotton v. Bowen, 799 F.2d 1403, 1407-1408 (9th Cir. 1986) (“... so long as the pain is associated with a clinically demonstrable impairment, credible pain testimony should contribute to a determination of disability.”)      

Of course, it is much easier to establish the presence of a “clearly demonstrable impairment” when there is objective evidence on an MRI scan of a herniated lumbar disc giving rise to back pain and sciatica. While credibility is still important to a successful benefits-decision under such circumstances, credibility assumes even a more decisive role when there are no objective findings and it's only the “word” of a claimant and his/her treating doctors.

Factors That Help Establish Credibility

When evaluating a claimant's credibility, the Social Security Administration (SSA) as reference lists seven factors that adjudicators should consider in making a credibility finding. Treating doctors, for that reason, should take care to document these seven factors in a claimant's medical records, because adjudicators will be looking for them.

1)         Activities of Daily Living (ADLs) and how the complained of symptoms (e.g., pain) affect a claimant's ability to perform them.

2)         The location, duration, frequency and intensity of claimant's symptoms.

3)         Factors that aggravate or precipitate the symptoms.

4)         The type, dosage, effectiveness, and side effects of any medications a claimant takes to alleviate the symptoms.

5)         Treatment, other than medications, that a claimant has received for the relief of symptoms.

6)         Any measures other than treatment the claimant uses to alleviate symptoms and

7)         Any other factors concerning the claimant's functional limitations or restrictions due to the symptoms.

Consistency in the Medical Records Helps Establish Credibility

Of considerable importance in credibility determinations is the consistency of the medical records. If there are significant inconsistencies, such as prior statements, physical examination findings, laboratory and radiographic findings, or opinions from medical providers that conflict with findings from other medical providers, this may decrease the credibility of a claimant's claim for benefits, unless a reasonable explanation may be found as to why these inconsistencies exist.  

Consistency and the absence of conflict among numerous treatment providers in the medical records enhances credibility. 

Don't Exaggerate

Doctors, lawyers, judges, and insurers are used to evaluating claimants and their medical records. They do it all the time, and they know exaggeration when they see it. Therefore, it is important that a claimant, and a doctor on behalf of a claimant, never exaggerates a claimant's symptoms or functional impairment.

Exaggeration undermines credibility.

When an ERISA Insurer Performs a “Paper Review” of the Medical Records

The credibility of a claimant seeking LTD benefits arises when an ERISA insurer denies a claim for benefits after performing only a “paper review” of a claimant's medical records, without having its doctor examine the claimant. A “paper review” is, in fact, what ERISA insurers typically do in evaluating disability claims, rather than an independent medical examination (IME).

While an ERISA insurer is not required to perform an IME, an insurer that chooses to perform only a “paper” review of the medical records may arguably be at a disadvantage in evaluating a claimant's subjective symptoms (such as pain) or assessing a claimant's credibility in reporting those symptoms, when it denies a claim for benefits and disputes the findings of physicians who actually examined the claimant and evaluated the claimant's credibility.

Under such circumstances, an insurer who avoids an IME must suffer the consequences, because an evaluation of subjective complaints (e.g., pain) and a claimant's credibility in reporting those complaints are best evaluated by an in-person examination rather than by a “paper review” of the medical records. Salomaa v. Honda Long Term Disability Plan, 637 F. 3d 674-675 (9th Cir. 2011).

Courts have held that some complaints, such as pain, can be completely disabling but cannot be quantified or corroborated objectively, because they are, by their nature, subjective. Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991). (“pain is a highly idiosyncratic phenomenon, varying according to the pain threshold and stamina of the individual victim.”) Therefore, it is improper to disregard the disabling effects of pain on a rationale that “the subjective complaints were disproportionate to the medical evidence.” Cotton, at 1408. An insurer “should not reject subjective claims of excess pain based solely on a paper review's observation that a physical impairment should not cause the claimant as much pain as he was reportedly suffering.” Montour v. Hartford Life & Acc. Ins. Co., 588 F.3d 623, 634-635 (9th Cir. 2009).

Accordingly, it may be Improper for an insurer to deny benefits for subjective complaints on the basis that a claimant's laboratory tests or x-rays do not match a claimant's self-report of pain, when the insurer never performed an IME. To wit: “The mild to moderate findings noted on examinations and diagnostic testing/imaging do not support ongoing impairment that would preclude work,” or that “the insured's reported level of pain is above that expected with the radiographic changes described.”

An insurer who denies a claim for LTD benefits by concluding that the claimant complained of “excess pain” that was not supported by objective laboratory or radiographic evidence, implicitly rejects a claimant's credibility in reporting that pain and its debilitating functional effects. In that event, an insurer may be required to explain why it found a claimant's credibility to be lacking. Demer v. IBM Corp. LTD Plan, 835 F.3d 893 (9th Cir. 2016) (“... MetLife ... was implicitly rejecting Mr. Demer's credibility based solely on a paper review ... and without explaining why Mr. Demer's credibility was lacking ...”)

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