Ludwig v. Astrue

• Decision Date: 01 June 2012
• Docket Number: No. 10–35946.,10–35946.
• Citation: 2012 Daily Journal D.A.R. 7288,12 Cal. Daily Op. Serv. 6028,179 Soc.Sec.Rep.Serv. 368,681 F.3d 1047
• Parties: William M. LUDWIG, Plaintiff–Appellant, v. Michael J. ASTRUE, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

681 F.3d 1047

179 Soc.Sec.Rep.Serv. 368

12 Cal. Daily Op. Serv. 6028

2012 Daily Journal D.A.R. 7288

William M. LUDWIG, Plaintiff–Appellant,

v.Michael J. ASTRUE, Defendant–Appellee.

No. 10–35946.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 27, 2011.

Filed June 1, 2012.

Paul B. Eaglin, Eaglin Law Office, Fairbanks, AK, for the appellant.

Jordan D. Goddard, Assistant Regional Counsel, Office of the General Counsel, Social Security Administration, Seattle, WA, for the appellee.

Appeal from the United States District Court for the District of Alaska, Ralph R. Beistline, Chief District Judge, Presiding. D.C. No. 4:10–cv–00002–RRB.

Before: BETTY B. FLETCHER, ANDREW J. KLEINFELD, and CONSUELO M. CALLAHAN, Circuit Judges.

OPINION

KLEINFELD, Senior Circuit Judge:

We address whether an administrative law judge's handling of an ex parte contact was error, and if so, whether it was harmless.

I. Facts

Ludwig claimed social security disability,¹ his claim was denied, and his appeal to the district court was unsuccessful.

A. The Medical Evidence

Ludwig told the Social Security Administration in his May 2006 application that he could not work because of epilepsy, bipolar disease, depression, insomnia, and social anxiety. He had not worked since getting fired at his last job as a cook earlier the same year. He had previously worked on a fishing tender, and as a welder and a cook. In his initial interview, Ludwig attributed his inability to work to his psychiatric problems, not his physical condition. But at his hearing, he claimed disabling arthritis in his knees, hips, and ankles, and degenerative disease in his low back. He testified that he had severe pain if he lifted as much as 15 pounds.

Ludwig had extensive medical records from correctional facilities and community health facilities. He had complained of knee problems for ten years, starting when he was in military service. A year before his social security application, he told a medical provider that he could “press 1,000 pounds,” and exercised. His description of his symptoms, together with X-rays and MRIs, led to a diagnosis of chronic pain in both knees and possible tears in the meniscus of the left knee. In 2007, the Department of Veterans Affairs (VA) awarded Ludwig ten percent service-connected disability compensation on account of his knee. Two months before Ludwig's social security hearing, a VA examining physician described Ludwig's knee problems as “minimal.” Around the same time, a chiropractic report said that Ludwig was walking normally.

Ludwig also complained of back pain. On June 14, 2007, Ludwig told a medical provider that he had been experiencing low back pain since trying to pick up a dishwasher the previous month. Two weeks later, he reported to a different examiner that he had endured chronic back pain since straining his back eleven years earlier, but had suffered no recent injury. He was diagnosed with lumbar strain and mild disc herniation. Ludwig said to one medical provider that Vicodin was “the only thing that helped before” with the back pain, but was instead prescribed methadone. The prescription was later changed to morphine sulphate, after Ludwig complained of side effects from the methadone. Physical therapy was prescribed, but Ludwig did not complete the sessions.

Ludwig was diagnosed with bipolar disorder in 2002. Medication successfully controlled it. Ludwig reported to his doctor in early 2006, the same year he applied for social security disability benefits, that, so long as he stayed away from alcohol, his medication kept him reasonably stable. After he got fired from his job as a cook, he enrolled in a drug and alcohol treatment program.

He also had a seizure disorder, controlled by medication. An emergency department record shows that Ludwig was admitted to the emergency room in March 2006, after having had a “witnessed seizure while working at the local Denny's restaurant.” He testified at his social security hearing that this was an anxiety attack, not a seizure. But he also testified to far more frequent and recent seizures than what he had told his medical providers.

Ludwig's social security application was denied in July 2006. The Social Security Administration's medical consultant, after reviewing Ludwig's records, concluded that Ludwig's mental impairments caused mild restrictions and difficulties. He opined that Ludwig could lift or carry 25 pounds frequently, 50 pounds occasionally, stand or walk for about 6 hours in an 8–hour workday, and sit for the same amount of time. After the initial denial, Ludwig requested a hearing.

At his hearing, Ludwig testified that he could not lift more than 15 pounds without severe pain, and that it was very painful to sit for more than half an hour. But he also testified that he carried his own firewood into his cabin for heat. He testified that his bipolar disorder made it difficult for him to control his anger, and that he became anxious in crowds of more than ten people. He said he had been fired from his job at Denny's because he could not get along with his coworkers. Ludwig claimed that he suffered three or four grand mal seizures a year, the last one about a month before the hearing. He testified that his petit mal seizures occurred too frequently for him to count. But medical records from 2007 show that he claimed there were three to five year periods where he had no seizures.

B. Ex Parte Communication

Right after the hearing, and before the ALJ had issued his decision, an FBI agent told the ALJ that Ludwig was apparently faking his physical disability. The ALJ immediately sent a letter to Ludwig's lawyer, disclosing the ex parte contact. The ALJ suggested that counsel could contact the FBI agent if he wished, though he did not represent that the agent had agreed to talk to counsel:

Shortly after your client's hearing ... a special agent with the F.B.I. [ ] informed me that, earlier, he had observed Mr. Ludwig in the parking lot walking with normal gait and station; and when he observed Mr. Ludwig walking inside of the Federal Courthouse (where our hearing was held) he was walking with an exaggerated limp (which I also observed as he left the hearing room).

Should you wish to inquire further, [the special agent] can be reached at the F.B.I. office at:

101 12th Ave

# 329

Fairbanks, AK, 99701

Counsel responded, objecting to any weight being given to what the FBI agent had said.

Counsel asked that unless the ALJ gave assurance that no weight would be given to the ex parte communication, he receive a supplementary hearing at which counsel could cross-examine the agent. Counsel intended to address whether, among other things, the FBI agent really had observed Ludwig as he thought, since around a dozen people had been in and out of the several hearings that morning. He questioned the accuracy of the FBI agent's observations, since Ludwig's knee problem was well-documented in the medical records. Counsel also expected to ask whether his client had been under some sort of surveillance, making him recognizable to the FBI agent.

C. The ALJ's Decision

The ALJ found that although Ludwig had a “longstanding seizure disorder,” it was “controlled when he takes medication as prescribed.” He noted conflicting evidence on Ludwig's physical condition, including Ludwig's claim that he could press 1,000 pounds, the chiropractor's observation that Ludwig walked normally, and evidence of damage to Ludwig's left knee.

The ALJ found that the seizure disorder and diseased tissue in the left knee were “severe” for social security purposes. As for Ludwig's back pain, the ALJ found that Ludwig's “contradictory accounts” and minimal objective findings established that Ludwig “was exaggerating symptoms.” He found that Ludwig's bipolar disorder was “well controlled” so long as Ludwig took his medicine and abstained from alcohol, so it caused only “mild” restriction of activities of daily living and functioning.

The ALJ found that none of Ludwig's impairments, separately or together, met the criteria of a listed impairment,² and that Ludwig had the capacity to perform “medium” work.³ Most importantly, the ALJ found that Ludwig was not credible, and had exaggerated how intense, persistent, and limiting his impairments were.

The decision notes that the FBI agent told the ALJ after the hearing that the agent had seen Ludwig in the parking lot “with a normal gait and station and subsequently observed the claimant walking with an exaggerated limp once inside the Federal Courthouse.” The ALJ wrote that he did “not assign significant weight” to the agent's statements because the FBI agent was not familiar with Ludwig's medical history and observed Ludwig “only briefly.” The ALJ did not say, as Ludwig's counsel had requested as an alternative to a supplementary hearing, that the ALJ had not assigned “any” weight to what the FBI agent told him, just that whatever weight he gave it was not “significant.”

The ALJ explained that the record contained “other evidence showing [Ludwig had] exaggerated symptoms.” Ludwig's testimony about his seizures was clearly exaggerated “based on what he told health providers.” Ludwig had claimed for compensation purposes in March 2008 that he could walk “no more than a few yards,” but had reported a month before to a medical provider that he had walked two miles in sub-zero temperatures and suffered frostbite. (Ludwig lives in Fairbanks, Alaska.) Ludwig's back and knee claims were inconsistent with his claim to health care providers that he could press 1,000 pounds. He had exaggerated various parts of his medical history to various providers. Likewise, Ludwig contradicted himself in different contexts about his claimed difficulty with social interactions. His statements that he walked for exercise, cut wood for heat, and stood for nine hours a day as a cook, contradicted his claimed physical limitations. The ALJ found that Ludwig could still work as a...