From Ludwig v. Astrue, an opinion of the Ninth Circuit Court of Appeals issued today, quoting from a letter sent by a Social Security Administrative Law Judge (ALJ) to an attorney who was representing Mr. Ludwig:
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
The attorney asked either that no weight be given to this ex parte statement or that a new hearing be held. The ALJ did not schedule a new hearing and issued a decision denying the claim, saying that he had not assigned "significant weight" to the ex parte statement of the FBI agent.
The Court of Appeals remanded the case for a new hearing, saying that "The judge should have refused to hear the ex parte communication. Ordinarily, if someone says to a judge, 'Judge, you know that case you heard this morning?', a judge responds, 'Don’t tell me anything about it. I can’t listen to evidence out of court.'" I thought that was well understood even by non-lawyers.
I've got three questions:
- How did this case get to the Court of Appeals? The Appeals Council or the District Court should have remanded the case in a heartbeat.
- Why was Social Security defending this at the District Court level much less at the Court of Appeals?
- Does that FBI agent's supervisor know that he made an ex parte contact with an ALJ? I was under the impression that most FBI agents were attorneys. Don't they know better than to do something like this?
People wonder about why we need so many levels of review of Social Security cases and then you see something like this.
Update: I should have read to the end. The Court of Appeals affirmed this travesty as harmless error. I cannot believe it. This is wrong. There is no reason for anyone at Social Security to feel anything but shame over this win.
Update: I should have read to the end. The Court of Appeals affirmed this travesty as harmless error. I cannot believe it. This is wrong. There is no reason for anyone at Social Security to feel anything but shame over this win.
12 comments:
Actually, since he is a FBI Agent, I would suspect that he is bound by his code of ethics to report any suspected fraud just like the rest of us lawyers and Federal employees. Perhaps an ethical Rep/Atty would also report this to the Judge as full disclosure?? Instead of punishing the crooks, you want to go after the do-gooders??
Most of the agents I have met have no prior legal background and are not attorneys. I also would have expected the agent to report this, but certainly not to the ALJ. You submit your report to the Office of the Inspector General or the common fraud hotline.
And unless this FBI agent had some considerable expertise to determing the condition of the claimant, it should have been given not only no weight, but no thought at all. The short examinations are hardly enough to get an accurate basis for determining a claimant's abilities, but being part of the FBI suddenly makes you capable of assessing when someone is faking a disability after having seen them for a few moments?
Or the one who testified he stopped smoking 6 months ago, then leaves the hearing room and goes straight to his car - and lights up? Seen by the VE and VHR who were leaving for lunch and parked right next to him (and had heard the testimony just moments before).
you think this is a "travesty"? Harmless error actually sounds like the correct result. The ALJ indicated that it was not given significant weight, so how would the result change if the evidnece was simply ignored?
BTW. Evidence is often obtained after the hearing. In fact, many attorneys wait until after the hearing to submit evidence and many ALJ's order CE's after the hearing. That evidence is then proferred to the claimant/rep.
Here, it looks like the info was proferred and the rep didn't offer any evidence to contradict what the ALJ heard.
I hope and pray the comments offered through 3:09 pm were not from sitting ALJs.
From what I've heard, most new FBI recruits are accountants, not lawyers.
404.1512 (b) What we mean by “evidence.” Evidence is ANYTHING you OR ANYONE ELSE submits to us or that we obtain that relates to your claim (emphasis added).
Come on, people. The CoA found that considering the ex parte communication was error. No argument there. But the analysis doesn't stop there, thankfully. The court then went into a rather detailed analysis about whether this was harmful error.
As you may or may not know, the 9th Circuit is the most liberal and claimant friendly court in the land. And the claimant's attorney is a relatively good one. So believe whatever you want but the claimant had every chance in the world to win this case, and still lost. The fact that there was tons of evidence already discredting him certainly made the case for SSA.
Prior to reading the decision, I would question this act of an "FBI agent" reporting outside of official channels.
Most basic FBI "Special Agents" (
GS-13) have a police/state trooper background, increasingly accounting majors, and a scattering of night and low rated law schools.
Was this some kind of joint taskforce member or just SSA OIG?
Troubling case:
1.) Would have been simpler IF the ALJ had given a supplemental hearing -- even if on the ALJ's own motion to state on the record that he was not considering or giving very little credence to the report. There is now a hearing office in Alaska, so not even talking about another trip or video.
2.) Should have been set back at AC level and never defended by OGC.
3.) From my experience in other 'real' bcourts, the hearing office staff should have protected the ALJ from receiving the ex parte information, by just informing the ALJ that there was the information and source but asking if s/he wanted to know the content.
4.) The circuit judge seems to be troubled and at times seemed that the decision could have gone in either direction. There must have been discussion by the three judge panel and possible several drafts.
5.) At heart, the federal panel did not belive the FELON and that there was more than enough medical and other evidence to overcome any doubt or post hearing added observation. The technical distinction of "harmless error" is less convincing. If the claim had been sent back to SSA, ... the claim would be eventially denied and the panel was saving time.
6.) But there is also mention of mental illness, which may explain part of claimant's past difficulty getting along with society (i.e., criminal conviction), being fired as a cook, variable statements ("press 1000 pounds") and variable presentation (the exagerated limp). Mental cases are seldom easy. A different day with a different counsel and a different ALJ, there may have been a different result for even this less than likable claimant.
Not a simple case.
"The ALJ indicated that it was not given significant weight..."
I haven't read the Decision yet, but this sentence jumped out at me. Great, it was not given significant weight, but what weight was it actually given? I don't belive "Not significant weight" meets the requirment to assign and explaint the particular weight given.
- J
So, the fact that even the 9th Cir. agreed that the claimant lied for several years to various medical providers is not, in Mr. Hall's opinion, supposed to support that the claimant exaggerated his complaints at the hearing and does not serve to support the ALJ.
Post a Comment