While objective evidence may benefit litigants who previously would have failed on their claims, the availability of objective evidence gives a “double-edge” to the “double-edge” of behavioral science evidence [as Ken Murray of the Arizona Fed. Public Defender’s Office said recently].

The idea is a simple one — in insanity cases, defendants often lose, in part, because of a belief they are malingering their mental defect. Likewise, plaintiffs with “invisible injuries” from automobile accidents or toxic torts often lose because their injuries can be difficult to prove. Emerging genetic and neuroscience research may benefit such litigants by providing objective evidence of phenomena that were previously judged solely by the credibility of the litigants and their experts.

The double-edge to the double-edge of this evidence is the likelihood that (like the “CSI effect”), a litigant who lacks objective evidence may lose because his failure to provide “scientific proof” of his claim is used as proof of the non-existence of his injuries/illness.

The two cases today–both benefits cases–are example of this trend. Both litigants seeking benefits lost because the “objective evidence” from science was missing to prove their disabilities.

Disability Benefits, Negative Brain Testing Results as a Justification for Finding No Impairment
Washington v. Astrue, 2011 WL 862264 (N.D. Ill. 2011)
This case arose after two appeals, the second one successful, from the denial of disability insurance benefits and supplemental security income under the Social Security Act (“SSA”) by the Administrative Law Judge (“ALJ”). The ALJ assessed the Plaintiff’s residual functional capacity (“RFC”) and determined that she could perform light work with certain restrictions, and thereby denied her benefits. In doing so, the court found that the ALJ made reversible errors in assessing the Plaintiff’s RFC and credibility. Plaintiff suffered from Meniere’s disease, but the ALJ discredited her testimony of disability because, inter alia, the diagnostic medical tests, which included “Brain/Head” and “EEG” testing produced normal results, even though these types of tests do not confirm a diagnosis of Meniere’s disease and were contrary to the ENG tests which produced abnormal results. The Court found that this, and the other three reasons given for discrediting Plaintiff’s testimony were flawed and awarded attorney’s fees to Plaintiff because the ALJ’s pre-litigation conduct and litigation position were not substantially justified.

Disability Benefits, Requiring Objective Evidence of Impairment (E.g. an fMRI)
Valen v. Employee Welfare Benefits Committee Northrup Grumman Corporation, 741 F.Supp.2d 756 (W.D. Virginia 2010)
Plaintiff was a participant in a plan governed by the Employee Retirement Income Security Act (ERISA) and sued the plan administrator to recover long-term disability benefits allegedly due under the plan. The parties cross-moved for summary judgment and the district court found in favor of the defendant. Plaintiff complained of profound fatigue and general achiness, and was diagnosed with chronic fatigue syndrome (CFS). The physicians who evaluated her found the cause of her fatigue was “elusive” and found multiple possible causes for her condition. Defendant denied her long-term disability benefits because there was no explanation for her chronic fatigue and no objective evidence of the degree of her impairment. The court reviewed Defendant’s denial of benefits for an abuse of discretion. The court noted that the Defendant’s insistence that a diagnosis of chronic fatigue syndrome be proven by objective evidence to be problematic, because there is no single diagnostic test for CFS. Such an insistence on objective evidence is tantamount to saying that it will not provide coverage for such a disease. The court nevertheless found that requirement objective proof of impairment, as opposed to objective proof of the condition itself was reasonable. To hold otherwise, it opined, would invite fraudulent claims. Moreover, citing to academic articles on the issue, it found that tests can show decreased cognitive performance in patients with CFS (citing, inter alia, to G. Lange et al., Objective Evidence of Cognitive Complaints in Chronic Fatigue Syndrome: a BOLD fMRI Study of Verbal Working Memory, 26 NEUROIMAGE 513 (2005)). Consequently, it held that because the record did not contain significant objective evidence backing the impairment findings, Defendant’s decision to deny Plaintiff long-term disability benefits claim was reasonable and supported by substantial evidence in the record. Defendant’s motion for summary judgment was granted.