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Ludwig v. Astrue - 681 F.3d 1047 (9th Cir. 2012)


Administrative adjudications are subject to the same harmless error rule as generally applies to civil cases. Reversal on account of error is not automatic, but requires a determination of prejudice. Determination of prejudice requires case-specific application of judgment, based upon examination of the record, not mandatory presumptions and rigid rules. The burden is on the party claiming error to demonstrate not only the error, but also that it affected his "substantial rights," which is to say, not merely his procedural rights. Among the case-specific factors an appellate court must consider are an estimation of the likelihood that the result would have been different, as well as the impact of the error on the public perception of such proceedings: The factors that inform a reviewing court's "harmless-error" determination are various, potentially involving, among other case-specific factors, an estimation of the likelihood that the result would have been different, an awareness of what body (jury, lower court, administrative agency) has the authority to reach that result, a consideration of the error's likely effects on the perceived fairness, integrity, or public reputation of judicial proceedings, and a hesitancy to generalize too broadly about particular kinds of errors when the specific factual circumstances in which the error arises may well make all the difference.


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. 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. Right after the hearing, and before the Administrative Law Judge (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. Counsel asked that unless the ALJ gave assurance that no weight would be given to the ex parte communication, Ludwig should be granted a supplementary hearing at which Ludwig's counsel could cross-examine the agent. The ALJ denied a supplementary hearing and found that the Ludwig was not credible and had exaggerated how intense, persistent, and limiting his impairments were. The district court affirmed.


  1. Was the ex-parte communication between the ALJ and the FBI agent proper?
  2. If the ex-parte communication between the ALJ and the FBI agent was not proper, should Ludwig’s application for social security disability benefits be granted?


1) No. 2) No.


The appellate court determined that it was error to allow the FBI agent to speak to the ALJ outside the presence of counsel, with no opportunity for counsel to cross-examine the agent, and no assurance that the communication had no influence on the result. However, the error was harmless because there was no prejudice from the error since the contradictions between what Ludwig said when he testified in his disability hearing, and what he had said on other occasions, were dramatic, and the decision would not have been any different without the ex parte communication.

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