When does evidence of malingering justify denial of a long term disability claim? It depends. A physician’s subjective opinion regarding malingering may have less weight than objective neuropsychological testing.

Key Take Away: When the claimant’s neuropsychological testing is rendered invalid due to “failed validity tests,” that may be enough to deny the claim. It is important that the record contain evidence how the tests were conducted, and how the tests objectively measured validity.

Here’s the case of Johnston v. Prudential Ins. Co., 916 F. 3d 712 (8th Cir. February 25, 2019).

FACTS: Johnston, a computer engineer, sought ERISA-governed long term disability benefits for cognitive impairment after brain surgery. Johnston underwent neuropsychological tests, rendered invalid because he “failed almost all of the validity tests.” Failed validity tests indicate one may be “actively attempting to perform poorly.” After Prudential denied disability, Johnston appealed. Prudential sought a second neuropsychological examination, and Johnston’s testing failed the validity tests again.

The District Court, applying discretionary review, affirmed Prudential’s denial of the disability and Johnston appealed.

ISSUE: Whether repeat, invalid neuropsychological tests justified claim denial?

EIGHTH CIRCUIT HELD: YES.

  1. Prudential’s benefit denial was upheld because there was evidence Johnston was “deliberately exaggerating his symptoms, making it impossible to determine whether he had cognitive deficiencies that rendered him disabled.” Op. at 5.
  2. With neuropsychological tests there are “multiple established ways to test validity of a neuropsychological examination. The record showed how the tests were administered, and how these tests objectively measure validity.” Op. at 6.