Ludwig v. Astrue

681 F.3d 1047 (9th Cir. 2012)

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Nature of the Case

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Facts

P made a claim for social security disability. P claimed he could not work because of epilepsy, bipolar disease, depression, insomnia, and social anxiety. P had not worked since getting fired from 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. P attributed his inability to work to his psychiatric problems, not his physical condition. 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. P had extensive medical records from correctional facilities and community health facilities. The knee problems started ten years ago in the military. A year before his social security application, he told a medical provider that he could 'press 1,000 pounds,' and exercised. P's 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. The Department of Veterans Affairs (VA) awarded P ten percent service-connected disability compensation on account of his knee. A VA examining physician described P's knee problems as 'minimal.' Around the same time, a chiropractic report said that Ludwig was walking normally. Ludwig complained of back pain. P 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. He was diagnosed with bipolar disorder in 2002. Medication successfully controlled it. P 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. P had a seizure disorder, controlled by medication. P testified at his social security hearing that his seizure 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. P's application was denied. P requested a hearing. P claimed he could not lift more than 15 pounds without severe pain, and could not sit for more than half an hour. He carried his own firewood into his cabin for heat. His bipolar disorder made it difficult for him to control his anger, and 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. P now claimed that he suffered three or four grand mal seizures a year. P testified that his petit mal seizures occurred too frequently for him to count. Medical records from 2007 show that he claimed there were three to five-year periods where he had no seizures. After the hearing but before the decision an FBI agent said that P was faking. The ALJ informed P’s attorney of the ex-parte communication. P requested that the information not be considered or that if it was, P sought cross-examination. The ALJ denied the claim. The ALJ found that Ludwig was not credible, and had exaggerated how intense, persistent, and limiting his impairments were. 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.' P appealed.