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.

You already know that ERISA sets forth a 180-day time limit for internal administrative appeals of benefit denials.

And failure to pursue a timely internal administrative appeal can subject the claimant (in a later federal lawsuit) to the defense of failure to exhaust administrative remedies.

But can a claimant save an untimely administrative appeal by

You already know that in ERISA cases the court has discretion to award reasonable attorney fees if the claimant shows “some degree of success on the merits” and this success is more than ‘trivial success on the merits’ or ‘purely procedural.’”

So, what happens when the Court remands the claim for further consideration by the

Most ERISA plans contain provisions limiting benefits for disabilities “which are primarily based on self-reported symptoms” or “mental illness.” (Emphasis added).

So, what does “primarily” mean? And what evidence in the medical records justifies the conclusion that the diagnosis is primarily based on self-reported symptoms?

Here’s a new case that highlights that the limitation still