Jefferson v. Colvin

Filing 45

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Court will adopt the Report and Recommendation of the United States Magistrate Judge in part, to the extent that it recommends remand of this matter, but will remand with directions for the ALJ to d evelop the record fully and fairly with respect toplaintiff's challenge to the calculation of his SSI benefits as set forth herein. [Doc. 41] IT IS FURTHER ORDERED that the parties objections to the Report and Recommendation are OVERRULED and pl aintiff's "Application of Estoppel" and request for summary judgment are DENIED. [Doc. 42] IT IS FURTHER ORDERED that, pursuant to sentence four of 42 U.S.C. § 405(g), the decision of the Commissioner is REVERSED and REMANDED for further proceedings consistent with this Memorandum and Order. An appropriate judgment of remand will accompany this Memorandum and Order. Signed by District Judge Charles A. Shaw on 9/28/2016. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

ELMER LEE JEFFERSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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No. 1:15-CV-97 CAS/ACL

MEMORANDUM AND ORDER
This Social Security matter was filed by pro se plaintiff Elmer Lee Jefferson (“plaintiff” or
“Jefferson”). The case is before the Court pursuant to the Report and Recommendation of United
States Magistrate Judge Abbie Crites-Leoni, filed July 28, 2016 (Doc. 41), to whom the case was
referred. See 28 U.S.C. § 636(b). The Magistrate Judge recommended that the decision of the
Commissioner be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and remanded for further
proceedings to permit the Administrative Law Judge (“ALJ”) to “determine the total amount that
Jefferson has been overpaid and the amount that remains outstanding after collections and other
adjustments were made.” (Doc. 41 at 10.)
Both parties objected to the Report and Recommendation. Plaintiff filed a document titled
“Application of Estoppel” (Doc. 42), in which he states that “the plaintiff asserts an estoppel in this
proceeding.” Id. at 2. Plaintiff also filed “Plaintiff’s Objection to Having Another ALJ to
Determine the Total Amount the Plaintiff was Overpaid Due to Action That are Held to be Arbitrary
and Capricious as Well as a Violation of the Equal Protection Clause” (Doc. 43). This document

states that “plaintiff objects because of fraudulent actions,” id. at 1, and plaintiff moves for summary
judgment. Id. at 2.
The Commissioner’s objections state that the Report and Recommendation seeks to reverse
the agency’s decision on the basis that the ALJ failed to provide an analysis of an issue–the
circumstances of each of the fourteen overpayments plaintiff received–that the plaintiff never raised
in his request for a hearing or at the hearing. The Commissioner concedes that the ALJ’s Decision
incorrectly stated that the overpayment related to plaintiff’s 2009 incarceration amounted to
$2,055.17, rather than the correct amount of $674.00, but she contends “an arguable deficiency in
opinion writing that has no practical effect on the decision is not a sufficient reason to set aside the
ALJ’s decision.” (Doc. 44 at 3.)
The Court has conducted a de novo review of this matter. For the following reasons, the
Court will adopt the Report and Recommendation in part, and will remand this matter to the ALJ
for further proceedings as specified herein.
I. Procedural History
Plaintiff Elmer Lee Jefferson was initially found entitled to receive Supplemental Security
Income (“SSI”) benefit payments under Title XVI of the Social Security Act, at some point
following his application on December 20, 2001. (R. 27.) The basis for plaintiff’s original
entitlement to receipt of SSI benefits, and the dates his period of disability and the payment of
benefits began, do not appear in the record. It is apparent that the Administrative Record does not
contain the entire history of plaintiff’s applications for and receipt of SSI benefits.

2

In April 2009, plaintiff was arrested and was held in jail while awaiting trial.1 As discussed
more fully below, around the time of his arrest and detention plaintiff wrote numerous letters and
filed complaints with the United States Department of Justice and other agencies, and to individuals
including the President of the United States and plaintiff’s congressional representatives, concerning
the circumstances of his arrest and detention, and various claims he made of mistreatment such as
excessive force, denial of medical care, and false imprisonment.
On May 18, 2009, the SSA sent plaintiff a Notice of Overpayment, which stated in pertinent
part:
We are writing to let you know that we’ve paid you $674.00 too much Supplemental
Security Income (SSI) money. The overpayment happened in April 2009. You were
overpaid because you were living in a public institution.
This new overpayment is in addition to the old overpayment already on your record.
You still owe $2,046.02 from the old overpayment. We have attached to this letter
a detailed explanation of your new overpayment.
(R. 448.)

1

“[F]ederal courts may sua sponte take judicial notice of proceedings in other courts if they
relate directly to the matters at issue.” United States v. Evans, 690 F.3d 940, 943 (8th Cir. 2012)
(quoted case omitted). The Court takes judicial notice of plaintiff’s criminal cases in the Circuit
Court of Dunklin County, Missouri. Plaintiff was charged in three cases that were consolidated for
trial (O7DU-CR00320, 07DU-CR00323, 07DU-CR01687). On April 23, 2010, a state court jury
found plaintiff guilty of two counts of sale of a controlled substance and resisting arrest. Plaintiff
was sentenced to concurrent prison terms of twelve years on each of the drug sale charges, and a
consecutive four-year sentence on the resisting arrest charge, for a total of sixteen years.
Plaintiff appealed and his conviction was affirmed. State v. Jefferson, 341 S.W.3d 690 (Mo.
Ct. App. 2011). Plaintiff filed a motion to set aside, vacate or correct his sentence under Missouri
Supreme Court Rule 29.15, which was denied without an evidentiary hearing. Jefferson v. State,
10DU-CC00085 (35th Jud. Cir. Ct., Dunklin County, Mo., Jan. 31, 2013). Plaintiff filed a habeas
corpus petition under 28 U.S.C. § 2254 in this Court, related to the Dunklin County convictions,
which was denied. Jefferson v. McSwain, 4:13-CV-542 ACL, 2016 WL 160639 (E.D. Mo. Jan. 14,
2016). Plaintiff appealed on June 23, 2016, and the federal habeas case is now pending before the
Eighth Circuit Court of Appeals. Jefferson v. McSwain, No. 16-2924 (8th Cir.).
3

On June 10, 2013, plaintiff reapplied for SSI benefits following his release from
incarceration. (R. 32-36, 50.) Plaintiff’s disabling conditions are primarily mental impairments: “bipolar, schizophrenia, anti-social, hears voices, back.” (R. 209.) Plaintiff’s 2013 SSI application
stated among other things that his wife, Ava Jefferson, was employed and owned two life insurance
policies. (R. 34-35.) In August 2013, the Social Security Administration (“SSA”) asked plaintiff
to provide information concerning the life insurance policies, Ava’s pay stubs from June 2013 to the
then-present time, and direct deposit information. (R. 61.)
Plaintiff provided the requested information. (R. 66-68.) On August 26, 2013, however,
plaintiff wrote to Ms. Kara Hubbard of the SSA, complaining that although Ms. Hubbard said
information concerning Ava’s life insurance policies was needed to determine his eligibility for
payments of SSI benefits, plaintiff disagreed:
The research presented leads me to believe otherwise. The non-payment of SSI
benefits for me by the mentioned reasons are unfairly, injuriously, and prejudicially
used for non-payment of benefits under SSI. This is the failure to treat me equally;
the setting up of arbitrary standard to justify treating me unfairly.
Should you not understand my point of view, please be advised that this incident is
an example of reasons why I don’t trust people because I get very depressed on such
issues.
How can you use a Life Insurance Policy to affect an income when nobody has died
and life insurance proceeds are not available? “nor taxable”
(R. 85.) The letter was signed, “Elmer L. Jefferson, 33E, U.S. Representative #1908.”
On September 3, 2013, the SSA sent plaintiff a Notice of Award that stated plaintiff was
approved for SSI benefits as of June 2013. (R. 87-99.) The Notice stated the amount of plaintiff’s
monthly payment for October 2013 and the amount of back payments due for July 2013 through
September 2013. (R. 87.) Among other things, the Notice also stated:

4

As we previously notified you, you were overpaid when you formerly received SSI
payments. You must still repay $379.75 from the amount due for July 2013 through
September 2013, to reduce the overpayment to $2,340.27.
As we told you before, we are withholding part of your payment to get back money
you were overpaid. Starting October 2013, we will start withholding $71.00.
Therefore you will receive a payment for $137.50 instead of $208.50.
The $71.00 we will withhold is 10 percent of your SSI money plus any other money
we use in figuring your SSI. If you want us to withhold more or less, please call or
visit your Social Security office.
(R. 88.) The Notice also discussed “monthly income which must be considered in figuring
[plaintiff’s] payment,” including Ava’s income, and the “food or shelter [plaintiff] got from
someone.” (R. 89.)
Plaintiff filed a Request for Reconsideration on September 5, 2013 which stated in pertinent
part:
I disagree with the determination made on my claims for Social Security Income
benefits because I KNOW THAT THE CALCULATIONS USED TO DETERMINE
THE AMOUNT OF MY SUPPLEMENTAL SECURITY INCOME (SSI)
BENEFITS ARE INCORRECT. THEY DID NOT USE THE CORRECT
INFORMATION WHEN FIGURING MY BENEFITS. I AM REQUESTING
THAT MY SSI BENEFITS BE RECALCULATED.
(R. 100.) Plaintiff did not offer any specific information as to why the information used by SSA in
determining the amount of his SSI benefit was incorrect. Plaintiff’s Request for Reconsideration
did not mention the stated overpayment or the monthly withholding related to repayment of the
overpayment. (Id.).
On September 11, 2013, the SSA sent plaintiff a Notice of Reconsideration which stated in
pertinent part, “Someone who did not make the first decision reviewed your case, including any new
facts we received, and found that the first decision was correct.” (R. 103-105.) The Notice of

5

Reconsideration concluded, “After reviewing your file, we have determined that the calculation of
your SSI benefits is correct.” (R. 103.)
On September 30, 2013, plaintiff filed a Request for Hearing by Administrative Law Judge
on the September 11, 2013 Notice of Reconsideration for the stated reason, “There is an unresolved
issue: See attached.” (R. 110.) Plaintiff wrote that his hearing representative’s name was Shanette
Y. Cutlar.2 (Id.) At paragraph 15 of the Request for Hearing, which directed that the claimant
“check all claim types that apply,” plaintiff did not check any boxes concerning SSI, but instead
checked “Other - Specify,” and wrote “See attached.” (Id.)
Plaintiff attached a letter to the Request for Hearing that stated:
Because I disagree with this decision dated September 11, 2013 and filed
September 5, 2013, I’m requesting a hearing in front of an Administrative Law
Judge.
The reasons for this request is due to the attached information connected to
the United States Department of Justice.
The correspondences relate to discrimination against the Missouri
Department of Corrections where lawsuits exists [sic] for a denial of appropriate
medical care and the Dunklin County Sheriff’s Department and to include excessive
force, improper booking, illegal restraint, abuse of a chronic care patient and false
imprisonment.
I was granted a grievance approval on state ground with the Missouri
Department of Corrections and the Sheriff’s Department in Dunklin County Jail was
ordered to reconstruct my mouth where my teeth were loosed during the arrest in
2009 and all charges were dismissed where the Dunklin County Sheriff’s Department
would not provide me medical treatment where an infection set up while being held
almost a year.

2

As of August 2009, Ms. Cutlar was the Section Chief of the Special Litigation Section of
the U.S. Department of Justice, Civil Rights Division in Washington, D.C. (R. 123.) Some of the
inter-agency correspondence discussed below that concerned letters or claims filed by plaintiff were
addressed to Ms. Cutlar.
6

Had these issues been resolved which were referred to the Social Security
Administration, the calculation of benefits would not be an issue in dispute.
An injustice anywhere is an injustice everywhere.
Therefore, I’m requesting a hearing before an Administrative Law Judge for
resolution.
(R. 111-12).
Attached to plaintiff’s letter were numerous documents, including a previous request for
hearing plaintiff filed in 2008 concerning an overdraft at Kennett National Bank (R. 113), an
undated Appointment of Representative form in which plaintiff sought to appoint Deputy Chief
Jeanine Worden of the U.S. Department of Justice, Civil Rights Division, Disability Rights Section,
as his representative in connection with a claim under Title II (RSDI) (R. 114); an undated
Discrimination Complaint Form under Title II of the Americans with Disabilities Act, Section 504
of the Rehabilitation Act of 1973 in which plaintiff claimed the United States, the State of Missouri,
the City of Kennett, Missouri and Dunklin County committed “trespass to land, false arrest, criminal
coercion, denial of appropriate medical care, false imprisonment, attacked while putting cast on neck
& denial of due process of law” (R. 116-17); copies of letters between federal agencies or to plaintiff
by federal agencies or elected officials in response to correspondence from or claims made by
plaintiff in 2008 and 2009 (R. 115, 118-19, 122, 123-24, 125-27); copies of pleadings or documents
that plaintiff had filed in several lawsuits, including in this Court; documents that were filed in
plaintiff’s criminal case or that concern the criminal charges against him; an Offender Grievance
plaintiff filed while incarcerated in the Missouri Department of Corrections; and other records from
plaintiff’s incarceration including medical records (R. 135-62).

7

Of particular note among the documents attached to the Request for Hearing dated
September 30, 2013 was a letter dated June 16, 2009 from Robin C. Deykes, Civil Rights Program
Specialist, Disability Rights Section, Civil Rights Division of the U.S. Department of Justice,
concerning “Correspondence of Elmer Lee Jefferson” received January 2, 2009. Ms. Deykes’ letter
was addressed to the Social Security Administration, Office of General Counsel, and letter stated
in relevant part:
We are referring this correspondence to you for appropriate disposition. We
have determined that the matter is not within the jurisdiction of our office, but may
come under Section 504 of the Rehabilitation Act of 1973 and fall within the
jurisdiction of your agency. By copying the claimant, we are advising him/her that
future inquiries about this complaint should be directed to the Social Security
Administration, Office of General Counsel[.]
(R. 115.) The record does not reveal what correspondence of plaintiff’s was the subject of the June
16, 2009 letter.3
Plaintiff received several Notices of Change in Payment in October, November and
December 2013, which explained that his monthly payments varied based on Ava’s changing
monthly income. (R. 163-185.) Each of the Notices discussed the $71.00 that would be withheld
from each month’s payment until the overpayment was paid back.

3

In the Administrative Record, plaintiff’s Discrimination Complaint under Title II of the
Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 follows the letter
of June 16, 2009. (R. at 116-17.) The Court cannot determine whether the Discrimination
Complaint was the “correspondence” referred to in Ms. Deykes’ June 16, 2009 letter addressed to
the SSA’s Office of General Counsel. From subsequent documents and plaintiff’s statements in
writing and to the ALJ at the hearing, it appears plaintiff incorrectly understood Ms. Deykes’ letter
to mean that all of his complaints and concerns about mistreatment by police, courts, jail personnel,
and others would be addressed by the SSA’s Office of General Counsel, and indeed by the ALJ.
There is nothing in the record to indicate any further action on plaintiff’s behalf by the SSA’s Office
of General Counsel.
8

On January 14, 2014, the SSA sent plaintiff a letter explaining the hearing process before
an ALJ, and informing him of his right to have a representative present. Included with the letter was
a list of organizations that might assist plaintiff in obtaining legal help. (R. 186-93.) The SSA’s
letter stated in part:
The ALJ will consider the issue(s) you raise, the evidence now in your file, and any
additional evidence you provide. The ALJ may also consider other issues, including
issues that were decided in your favor in the decision you appealed. The Notice of
Hearing will list the issues the ALJ plans to consider at the hearing.
....
If there is more evidence you want the ALJ to see, please give it to us as soon as
possible.
(R. 186-87) (emphasis added). Immediately following the SSA’s January 14, 2014 letter in the
Administrative Record are seventy-four pages of what appear to be SSA internal records concerning
plaintiff. (R. 194-267.)
On March 27, 2014, the SSA sent plaintiff a detailed Notice of Hearing, which set a hearing
for May 28, 2014 at the SSA office in Kennett, Missouri. (R. 268-84.) The Notice of Hearing
informed plaintiff of his rights to submit more evidence and review his file, and to request
subpoenas. (R. 270-71.) Under the heading “Issues I Will Consider” it stated:
I will decide whether you continue to be disabled. To decide this issue, I will apply
the standard stated in section 1614(a)(4) of the Social Security Act. I will consider:
•

Whether there has been any medical improvement relating to your ability to
work since we last found you disabled; and

•

Whether one of the exceptions to medical improvement stated in the Act and
our regulations applies.
....

(R. 270-71.)

9

Strangely, the Notice of Hearing did not state that the ALJ would consider plaintiff’s
assertion that his SSI benefits had been improperly calculated or the issues set forth in plaintiff’s
Request for Hearing dated September 30, 2013. Whether plaintiff continued to be disabled or had
any medical improvement was not in issue at the hearing.
Plaintiff acknowledged receipt of the Notice of Hearing (R. 284) and according to SSA
records “brought in paperwork that he wanted to be associated with his hearing.” (R. 285.) This
paperwork included an Appointment of Representative form by which plaintiff again sought to
appoint Shanette Y. Cutlar as his representative at the hearing (R. 289), interagency correspondence
directed to Ms. Cutlar concerning correspondence received from plaintiff (R. 290-92); the docket
sheet for plaintiff’s § 2254 habeas claim in this Court and documents and correspondence
concerning the § 2254 claim; a Dunklin County warrant for plaintiff’s arrest issued in March 2009
(R. 293-317, 328-30); and a list of plaintiff’s current medications, which included Perphenazine,
an antipsychotic medication used to treat schizophrenia, and Hydroxyzine, an antihistamine used
to treat anxiety. (R. 318-27.)
On March 31, 2014, plaintiff submitted to the SSA a document titled “Claimant’s Request
to Issue Subpoenas and Acknowledgement [sic] of Appointment of Representative SSA Publication
No. 05-10075 (Right to Representation).” (R. 331-34.) In this document, which plaintiff signed as
“Elmer Jefferson, 33E, U.S. Representative,” he sought to subpoena Shanette Y. Cutlar on the basis
that Ms. Cutlar:
has evidence or information that reasonably needs to present the Claimant’s case
fully which she has jurisdiction under Section 504 of the Rehabilitation Act of 1973,
as amended, and is requested by Ms. Linda A. Garrett, Civil Rights Program
Specialist, Disability Rights Section, Civil Rights Division to investigate the
allegations for compliance with both your agency’s Section 504 regulations and the
Department of Justice’s title II regulations, 28 C.F.R. part 35.
10

Ms. Linda A. Garrett further requested that should she have jurisdiction under title
II of the Americans with Disabilities Act of 1990, please investigate the claimant’s
allegations under the procedures in 28 C.F.R. part 35, subpart f.
(R. 331.) Plaintiff’s Request to Issue Subpoenas also stated:
2. The U.S. Department of Justice has investigated the Claimant’s Complaint which
consists of money damages that is involved thorough a lawsuit brought for this
purpose and it is appropriate for subpoenas to be issued.
3. This case involves addressing Police Misconduct consisting of false arrest,
improper booking, excessive force resulting in bodily injury to Claimant, denial of
appropriate medical care by the Missouri Department of Correction, Dunklin County
Sheriff’s Department, Kennett Police Department, writing of false police reports,
obstructing justice, concealing records, unlawful incarceration, and contempt of court
by the Dunklin County Sheriff’s Department.
(R. 332).
Plaintiff requested that the ALJ issue subpoenas to U.S. Representative Jo Ann Emerson;
Josh Haynes, Chief of Staff for U.S. Representative Jason Smith; Ms. Judy Preston, Acting Section
Chief of the U.S. Department of Justice’s Special Litigation Section, Civil Rights Division; Mr.
Robert Moossy, Jr., Acting Section Chief of the U.S. Department of Justice’s Criminal Section; and
Ms. Linda A. Garrett, Civil Rights Program Specialist, Disability Rights Section, Civil Division, on
the basis that each of these persons “has information that reasonably needs to present the Claimant’s
case fully,” and referenced letters signed by or sent to these persons in connection with plaintiff’s
2009 correspondence and complaints. (R. 333-34.)
Plaintiff concluded the Request to Issue Subpoenas by stating, “The United States
Department of Justice has the power to grant Claimant an award for damages.” (R. 334.) On May
19, 2014, plaintiff sent the SSA a request to issue subpoenas to three additional individuals with the
U.S. Department of Justice, asserting they had evidence of information reasonably needed to present
his case at the hearing. (R. 337.)
11

Plaintiff also submitted documents from his federal § 2254 habeas case, including a Motion
for Default Judgment which asserted that then-Chief Judge Catherine Perry of this Court ordered
his case and nineteen others transferred from U.S. Magistrate Judge Lewis M. Blanton to U.S.
Magistrate Judge Abbie Crites-Leoni “because of obstruction of justice by Judge [Blanton].” The
motion was signed by plaintiff as “Elmer L. Jefferson 33E, A Member of Congress U.S. House of
Representatives.”4 (R. 350-57.)
Plaintiff also submitted a letter dated May 3, 2014 that he sent to Mr. Frank Montgomery,
Equal Opportunity Specialist at the U.S. Department of Housing and Urban Development (“HUD”),
Region VII, Office of Fair Housing and Equal Opportunity in Kansas City, Kansas, concerning
“Jefferson v. Housing Authority of the City of Kennett, et al., HUD File No.07-14-03658, Title VI
Case No. 07-14-0365-6.” (R. 361.) This letter states in pertinent part,
The purpose of this communication is to request a joinder of action with the Office
of Disability Adjudication and review, 200 North Broadway, Suite 900, Saint Louis,
Mo 63102. Please find the Notice of Hearing enclosed.
The reason for joinder of action is provided by law which says that different causes
of action may be joined together in the same suit. The separate [sic] injuries usually
must arise from the same incident or Controversy which involves Addressing Police
Misconduct now before the HONORABLE STEPHEN M. HANEKAMP,
ADMINISTRATIVE LAW JUDGE.
....
(R. 361.)
On May 6, 2014, plaintiff sent a document to SSA titled “Incident Report,” in which he
stated that approximately an hour after he filed documentation with the SSA concerning his HUD

4

Plaintiff’s assertion that Judge Perry ordered cases transferred from Judge Blanton to Judge
Crites-Leoni because of judicial misconduct by Judge Blanton is incorrect and lacks any basis in
fact. Judge Blanton retired from this Court in 2014 after serving twenty-three years as a United
States Magistrate Judge. Upon Judge Blanton’s retirement, cases previously assigned to him were
transferred to the newly appointed United States Magistrate Judge, Abbie Crites-Leoni.
12

housing discrimination complaint, he returned home to find three Kennett, Missouri police officers
who questioned him about a call that there had been a fight at that location. The “Incident Report”
states that plaintiff “took this as intimidation and retaliation for the filing of the complaint . . . .” (R.
363-64.) Plaintiff also submitted to the SSA numerous additional copies of court filings and
correspondence related to his federal § 2254 habeas case. (R. 365-402.)
On May 28, 2014, plaintiff and his daughter appeared via video conference before the ALJ
for hearing in Kent, Missouri. The ALJ was in St. Louis, Missouri. The ALJ explained how the
video hearing would work and that a record of it would be made, and asked plaintiff whether his
daughter would testify. Plaintiff responded, “Yeah.” (R. 463.) The ALJ said, “[L]et’s first of all
go over what this is about and then we need to talk about the evidence and I need to find out if you
want a postponement to get a representative, okay?” (R. 463-64.) Plaintiff responded that he had
filed paperwork about a representative, and the ALJ responded, “Well, I think you’re
misunderstanding me, sir, so let’s hold on and deal with one thing at a time and we’ll get to the issue
of representation, okay?” (R. 464.)
The ALJ then mentioned plaintiff’s hearing request of September 30, 2013 and expressed
the ALJ’s “understanding that you’re contesting an overpayment. The idea is that when somebody
is on supplemental security income –” at which point plaintiff interrupted the ALJ and said, “No.”
(R. 464.) The transcript of the hearing then indicates the ALJ continued to speak as follows:
ALJ: – if you’re a resident of a public institution or in prison you’re not eligible for
payments and it’s my understanding that what you’re trying to say is, I should not
have an overpayment for time when I was in prison, because I should not have been
in prison in the first place. Is that what you were trying to say with the attachment
to your hearing request?
CLMT: What I’m – the record like he gave and Social Security and all, I gave them
direct evidence that is true and that’s why I’m with the Department of Justice. They
13

have filed and they can better explain that to you than I can and the reason my
daughter is here is because I feel a little strange being about myself, being paranoid.
ALJ: All right.
CLMT: One of the disabilities that I do have –
ALJ: Okay. But so, in other words, that is the gist of your hearing request and that’s
why you filed it, right?
CLMT: Yeah, I gave them the record concerning that they were poor and poor and
poor adjusted. And like I said, they didn’t give me – when I came and picked up this
file, they didn’t give me what I have submitted to you in regards to the subpoena
people out of Washington and the Chief of Staff there in El Dorado. They’re a
federal – several things that I feel are very crucial to the case. In other words, that
was one of the –
(R. 465-66.)
Plaintiff then stated he did not have a copy of his file, and the ALJ inquired whether plaintiff
wanted to postpone the hearing to obtain representation and to see the file before proceeding. The
ALJ stated that plaintiff had filed an appointment of representative form naming Shanette Cutlar as
his representative, but told plaintiff that Ms. Cutlar “has to sign this form as well and agree to
represent you, so I can’t recognize her as your appointed representative. But really, the issue is do
you want a postponement of your hearing in order to get a representative? You have the right to be
represented by an attorney of your choice.” (R. 467.) Plaintiff responded, “Yeah, let’s postpone.”
(R. 468.) The ALJ explained to plaintiff that he might be eligible for free legal assistance and that
he could send plaintiff another copy of a pamphlet with a list of places he could call to get a referral.
(R. 468.)
Plaintiff then told the ALJ about his attempt to obtain representation from the Department
of Justice, and said that his complaint had been referred to the General Counsel of the Social
Security Administration. (R. 469.) The ALJ responded that he did not have the authority to appoint
14

someone to represent plaintiff, and there was further discussion about how plaintiff might obtain
representation. The hearing was concluded after the ALJ cautioned plaintiff that he could only
provide one postponement to allow plaintiff to obtain representation. (R. 470-71.)
On July 2, 2014, the SSA sent plaintiff a Notice of Continued Hearing, which set the hearing
to resume on September 9, 2014 in Cape Girardeau, Missouri. (R. 405-08.) Attached to the Notice
of Continued Hearing was a “Your Right to Representation” form (R. 409-11), and a letter from the
ALJ to a Mr. Darrell W. Taylor. This letter stated that plaintiff “has an application pending for
disability benefits” and that Mr. Taylor was requested to appear at the September 9, 2014 hearing
and give testimony as a vocational expert for the period of the “alleged onset date through the
present.”5 (R. 412-15.)
On August 18, 2014, plaintiff sent a letter to the SSA complaining that SSA rules on hearing
witnesses, federal regulations concerning presenting evidence before an ALJ, and regulations
concerning issuing subpoenas at the request of a claimant had been violated in his case. (R. 416-23.)
On September 9, 2014, the hearing resumed. Plaintiff appeared in person and with his wife,
Ava, for a video hearing with the ALJ. The record does not indicate that the vocational expert was
present. The ALJ remarked that the hearing had been postponed to allow plaintiff to get a
representative, but observed that plaintiff was still unrepresented, and said, “I assume that you want
to go ahead without representation.” Plaintiff gave a rambling and disjointed response that was
irrelevant to the issue of his SSI benefits. (R. 476-78.)

5

It is unclear why a vocational expert would be needed at a hearing to address the issues
raised in plaintiff’s Request for Hearing. Contrary to the statement contained in the ALJ’s letter to
the vocational expert, plaintiff was not applying for disability benefits, as he had already been found
eligible to receive SSI benefits and instead was contesting the calculation of those benefits.
15

The ALJ then placed plaintiff under oath and stated,
ALJ: All right. Okay. All right. Then, all right, sir, all right, let me first of all go
over why we are her[e]. Basically the Social Security Administration declared an
overpayment of approximately $3,100 because you were incarcerated and in any
event, they are withholding some money from your monthly check in order to recoup
that overpayment and you filed you hearing request on – my understanding is
basically two issues. Number one, you’re saying that you should not have been
incarcerated, if you had not been incarcerated then there would not be an
overpayment. And then second of all, the withholding amounts, you disagree with
the withholding amounts. So, you shook your head yes and pardon me. And so, in
any event, that’s why we’re here. So that’s the issue. Then let me just go over what
we have in evidence. . . . .
(R. 479-80) (emphases added). The ALJ admitted various documents into evidence that plaintiff
had submitted and said to plaintiff, “So basically I’ve given you the oath, sir, and I’ve set aside 45
minutes for this hearing, so this is your time to tell me what you want to say.” (R. 481.) Plaintiff
responded by giving a lengthy, rambling narrative that did not address the issue of his SSI benefits.
(R. 481-84.) The ALJ asked if there was anything else plaintiff needed to tell him, and plaintiff
responded, “This [inaudible] what else you need to know? I mean, I was just speaking from my
heart.” (R. 484.)
The ALJ then asked if Ava Jefferson wanted to testify, and asked her if she had anything she
needed to tell him. Mrs. Jefferson responded, “Not at this moment I don’t.” (R. 485.) The ALJ
offered plaintiff the opportunity to ask Mrs. Jefferson questions, and plaintiff asked her, “Do you
still feel threatened by law enforcement?” and “Do you still feel that they might take our lots?” to
which she responded, “Yeah.” (R. 485.) The hearing concluded and the ALJ said he would issue
a decision as soon as possible.

16

II. The ALJ’s Decision
The ALJ issued his Decision on November 7, 2014. The Decision stated that the sole issue
was “whether Mr. Jefferson was overpaid Supplemental Security Income while in jail and
incarcerated.” (R. 16.) The ALJ’s Decision did not address the second issue he identified at the
hearing, that plaintiff disagreed with the withholding amounts. (R. 480.) The ALJ stated at the
beginning of the Evaluation portion of the Decision, “The claimant does not dispute that he received
payments in the amount of $2,055.17 (D-27) while he was incarcerated.” (R. 16.) This statement
is factually incorrect, and forms the primary basis of plaintiff’s appeal to this Court.
The Decision continues:
[Plaintiff’s] argument, however, is that he was unjustly and wrongfully imprisoned,
and therefore he was not overpaid. In other words, he argues that had he not been
unjustly and wrongfully incarcerated, then he would have been living at home during
the time period in question and he would have been eligible for the Supplemental
Security Income payments in issue, and for that reason he should not have an
overpayment. The claimant has made a number of motions in support of this
argument, and attempting to join numerous parties to the case for the purpose of
adjudicating, at the Office of Disability Adjudication and Review, the issue of
whether he should have been incarcerated. . . . .
(R. 16).
The ALJ’s Decision addressed the various documents plaintiff submitted for inclusion in his
SSA file, including the correspondence to federal agencies, court documents, motions, complaints
about police misconduct and various exhibits as detailed above. The ALJ stated that none of the
complaints were “filed within any jurisdiction that come under the authority of the undersigned,”
in particular plaintiff’s claims that were raised in or concerned the federal courts. (R. 17.)
The ALJ stated that while plaintiff filed an SSA Form 1696 naming Shanette Cutlar as his
representative, Ms. Cutlar had not signed the form and therefore had not entered an appearance as

17

plaintiff’s attorney. The ALJ stated that while plaintiff had attempted to compel Ms. Cutlar to
appear at his disability hearing for the purpose of representing him as his counsel in his nondisability claim, the ALJ lacked the authority to compel any person or official to represent another
in Social Security Proceedings. (R. 17.)
The ALJ’s Decision then addressed the sole issue he considered: whether plaintiff was
overpaid SSI “considering his allegations of unjust or illegal detention in a public facility.” (R. 17.)
The ALJ correctly stated that under federal regulations, individuals are not eligible for SSI benefits
for any month throughout which the individual is a “resident of a public institution,” 20 C.F.R.
416.211(a), (R. 17), and under 20 C.F.R. 416.201 a “‘public institution’ is defined as an institution
that is operated by or controlled by the Federal government, a State, or a political subdivision of a
State such as a city or county. This definition includes all jails and prisons.” (R. 18.) “‘Resident
of a public institution’ is further defined as a person who can receive substantially all of his or her
food and shelter while living in a public institution, and it is specifically stated that ‘[a] resident of
a public institution means the same thing as an inmate of a public institution.’ See 20 CFR
416.201.” (R. 18).
The ALJ noted the regulations make exceptions to this general rule for residents of public
institutions that are (1) medical treatment facilities, (2) public emergency shelters for the homeless,
and (3) publicly operated community residences, which are specifically defined to not be a “jail or
other facility where the personal freedom of anyone who lives there is restricted because that person
is a prisoner, being held under court order, or is being held until charges against that person are
disposed of. See 40 CFR 416.211(b) through (d), and 20 CFR 416.211(c)(5)(iii).” (R. 18.) The
ALJ then stated that plaintiff was not a resident of a medical treatment facility, a public emergency

18

shelter for the homeless, or a publicly operated community residence during the period in issue. (R.
18.)
The ALJ concluded plaintiff’s argument, that he should not have an SSI overpayment for
months during in which he was wrongfully incarcerated or imprisoned, must fail in light of the clear
requirements of the applicable regulations. (R. 18-19.)
III. The Appeals Council’s Review and Decision
Plaintiff filed a Request for Review of Hearing Decision/Order that stated plaintiff sought
review of the ALJ’s decision on his claim because: “In his Evaluation it is stated that I did not
dispute that I received payments in the amount of $2,055.17 (D-27) while in jail and incarcerated
that is filed by him in bad faith.” (R. 12.) Plaintiff attempted to name Congressman Jason Smith
as his hearing representative. At the bottom right corner of the Request for Review is a hand-written
notation “1 of 3.” Only one page of the Request for Review is provided in that portion of the
Administrative Record, however. It appears that the second and third pages of plaintiff’s Request
for Review may be included in the Administrative Record at pages 427-28, which are titled
“Response Statement.” In the Response Statement, plaintiff asserts that the ALJ’s Decision was
made in bad faith, and that plaintiff
is hearing about this allegation of receiving $2,055.17 for the first time and don’t
know anything about receiving such funds while incarcerated. I don’t have such a
record of this allegation so why would I dispute an issue unheard of except at this
time? . . . This is a lie and there is no truth about $2,055.17 being received by me
while incarcerated. I want to see such information linking me to that.
(R. 427.)

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Plaintiff also states that as soon as he was incarcerated, he reported his detention to the Manager of
the Social Security Administration in Kennett, Missouri. (R. 428.)6
Finally, plaintiff stated that the ALJ “is saying that the Honorable Jason Smith Congressman
and the United States Department of Justice, Disability Rights Section, Civil Rights Division are
mistaken about his duties and the referral to Social Security Administration in his department is
without jurisdiction to act on the claims of claimant.” (R. 428.)
On May 14, 2015, the Appeals Council denied plaintiff’s Request for Review. The Appeals
Council stated:
You contend that you reported your incarceration timely to the Administration. You
also contend that the amount of $2,055.17 was falsely entered into your file. We
found that this information does not provide a basis for changing the Administrative
Law Judge’s decision.
The Appeals Council notes that you submitted a request for waiver of the
overpayment with your request for appeal. We plan to return your case to your local
field office for an initial determination on your waiver request as well as any other
necessary action for your case. You will receive appeals rights with your initial
determination regarding your request for waiver.
With your request for review, you alleged that the Administrative Law Judge was
“bias and this appears to be a whim of those in power.” We considered your
allegations solely as they relate to your case under the abuse of discretion standard
416.1470. After reviewing the entire record, including the hearing recording, we
have determined that there was no abuse of discretion and that no other basis exists
to grant review in this case. We have completed our action on your request for
review.

6

Plaintiff sent a letter to the Appeals Council dated December 3, 2014, in which he sought
to subpoena records for “PROOF OF PAYMENT OF OVERPAYMENT WHILE CLAIMANT
ELMER LEE JEFFERSON was resident of a public institution during the time that the
OVERPAYMENT OCCURRED.” (R. 430.) Plaintiff also filed a Request for Waiver of
Overpayment Recovery or Change in Repayment Rate form, challenging the statement that he
received $2,055.17 while incarcerated. (R. 433-40.)
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(R. 4-8.) The decision of the ALJ therefore stands as the Commissioner’s final decision. See 20
C.F.R. §§ 404.981, 416.1481.
IV. Plaintiff’s Action in this Court
Plaintiff filed the instant case asserting that he had evidence an overpayment of $2,055.17
did not occur while he was incarcerated, which was the reason money was being deducted from his
monthly check. (Amended Complaint at 2) (Doc. 6). Plaintiff alleges that SSA employees acted
fraudulently in concealing the “actual reason” for deductions from his monthly SSI payments, and
retaliated against him for filing grievances against the SSA. (Id.) Plaintiff’s pro se Brief in support
of his complaint asserts that ALJ’s Decision is not supported by substantial evidence because there
is no evidence plaintiff received payment of $2,055.17 while he was incarcerated. (Doc. 30.)
The Commissioner’s Brief asserts that the only issue raised in the ALJ’s Decision was
whether plaintiff received an overpayment of benefits in 2009 when he was incarcerated. (Doc. 32
at 3.) The Commissioner argues that the ALJ correctly determined plaintiff was not eligible for SSI
benefits while incarcerated in a public institution, citing 20 C.F.R. §§ 416.201, 416.211, and
416.1325. (Id. at 4.) The Commissioner states that while plaintiff argued he was improperly
incarcerated without probable cause, the ALJ correctly noted this issue was outside of his
jurisdiction and whether plaintiff was found guilty of the charge for which he was incarcerated was
irrelevant to the determination whether he was a resident of a public institution and thus ineligible
to receive SSI benefits. (Id. at 4-5.) The Commissioner devotes a substantial portion of her Brief
to attempting to establish that plaintiff was incarcerated in 2009, a fact plaintiff has never disputed.
The Commissioner admits that plaintiff’s Brief “could also be construed as challenging the
computation of his overpayment amount.” (Id. at 6.) The Commissioner contends this argument

21

should be rejected because plaintiff “has offered no specific argument how the amount of the
overpayment as determined by the agency was incorrect.” (Id. at 6-7).
After the parties filed their Briefs, the Magistrate Judge ordered the Commissioner to provide
an SSA Notice of Overpayment or other documentation concerning the $2,055.17 at issue, stating
that without such documentation, the Court was “unable to determine whether the decision of the
ALJ was supported by substantial evidence.” Order of July 19, 2016 at 2. (Doc. 38). The
Commissioner filed a Response which included the following exhibits:
1. A May 18, 2009 Notice of Overpayment in the amount of $674.00 for April 2009 that
explained plaintiff was overpaid because he was a resident of public institution in April 2009, and
that plaintiff had previously received overpayment, and the amount of the old overpayment still
pending was $2,046.02. (Doc. 39, Ex. A.) This document was already part of the Administrative
Record.
2. A December 16, 2013 Notice of Overpayment that informed plaintiff he had incurred a
new overpayment of $25.34 as a result of an increase in his wife’s wages, and that he had an old
overpayment in the amount of $2,055.17 still pending. (Doc. 39, Ex. B.) This document was
already part of the Administrative Record.
3. A spreadsheet generated by SSA’s “accounting software outlining the amount of
Plaintiff’s monthly SSI benefit payment, the amount he should have been paid, the amount of
overpayment, if any, and the amount of any overpayment collection beginning in 1996 and running
through May 2016.”7 (Doc. 39 at 2; and Ex. C.)

7

The spreadsheet generated by the SSA’s accounting software was new evidence not
contained in the Administrative Record. “In the context of judicial review of a decision of the
Commissioner regarding SSI disability benefits, evidence outside the administrative record generally
22

The Magistrate Judge carefully reviewed the Commissioner’s Exhibit C and found that it
indicated the following with respect to overpayments:
[Plaintiff] received a total of $5,465.27 in overpayments between July 1999 and
April 2009 ($3,565.68 during periods of incarceration and $1,899.59 for “other”
reasons). If the total amount of overpayments between July 1999 and April 1999
($5,465.27) is subtracted from the collections made between April 2003 and January
2014 ($3,410.10), the difference is $2,055.17.
Report and Recommendation at 6. The Magistrate Judge stated there was no doubt any funds
plaintiff received while he was incarcerated constitute an overpayment, citing 20 C.F.R.
§ 416.211(c)(5)(iii), but noted plaintiff did not dispute this, or the fact that he was incarcerated in
2009. The Magistrate Judge stated that plaintiff’s actual argument on appeal is that he was not
overpaid in the amount of $2,055.17 while he was incarcerated in 2009, and that the Commissioner
has not provided any proof of such overpayment while he was incarcerated.
The Magistrate Judge remarked that while the ALJ acknowledged at the administrative
hearing that plaintiff disagreed with the overpayment amounts, the ALJ failed to address this
argument in his Decision, did not include any discussion regarding how the $2,055.17 was
determined, or cite to any documentary evidence in support of the overpayment amount, and the
Magistrate Judge could not find any documents in the Administrative Record to explain how the
amount was computed. The Magistrate Judge concluded that the ALJ’s Decision was not supported
by substantial evidence in the record as a whole, for the following reasons:
The ALJ’s opinion is fundamentally flawed, in that it provides no explanation as to
how the overpayment amount was calculated. Although the decision provides no

is precluded from consideration by the court.” Baker v. Barnhart, 457 F.3d 882, 891 (8th Cir. 2006)
(cited cases omitted). Also, in reviewing the record for substantial evidence, the court may not make
its own findings of fact. See Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir. 1987); Baker v.
Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984).
23

dates, it is clear that the ALJ found the overpayment occurred during a period of
incarceration. Defendant confirms in her Brief that the only issue raised in the ALJ’s
decision was whether Jefferson received an overpayment of SSI benefits in 2009
when he was incarcerated. Despite this narrow issue, neither the ALJ nor Defendant
cite to any documentary evidence showing that Jefferson in fact received $2,055.17
while he was incarcerated in 2009. The only evidence of an overpayment that
occurred during the relevant time frame is a Notice of Overpayment dated May 18,
2009, reflecting that Jefferson was overpaid in the amount of $674 while he was
incarcerated in April 2009. (Tr. 448.)
When given the opportunity to provide documentation that the undersigned
assumed was inadvertently omitted from the record, the Acting Commissioner
provided a spreadsheet generated by the agency. This is not sufficient evidence to
support the ALJ’s determination for several reasons. First, there is no indication that
Jefferson has ever received this internal document. Second, the document does not
indicate that Jefferson was overpaid $2,055.17 while he was incarcerated in 2009.
Rather, it reveals that Jefferson was only overpaid in the amount of $674 during that
time. Third, although Exhibit C indicates that the difference between Jefferson’s
total amount of overpayments between July 1999 and April 2009 and the amounts
recovered by the SSA equals $2,055.17, there is no explanation as to how the
overpayment determinations were made with regard to fourteen of these
overpayments. The undersigned is therefore unable to determine whether the SSA
properly determined Jefferson was overpaid on those fourteen occasions. In any
event, it is clear that these overpayments were not the result of Jefferson’s 2009
incarceration, nor were they the result of any incarceration.
Report and Recommendation at 9-10.
V. Legal Standard
The Commissioner’s decision must be affirmed if it “is supported by the substantial evidence
on the record as a whole.” Ash v. Colvin, 812 F.3d 686, 689 (8th Cir. 2016) (quoted case omitted);
42 U.S.C. § 405(g). “Substantial evidence is less than a preponderance [of the evidence], but is
enough that a reasonable mind would find it adequate to support the Commissioner’s conclusion.”
Id. (quoted case omitted). To determine whether substantial evidence exists, courts “consider
evidence that supports the Commissioner’s conclusion, along with evidence that detracts from that
conclusion.” Id. (quoted case omitted). The substantial evidence test is “more than a mere search

24

of the record for evidence supporting the Commissioner’s findings.” Coleman v. Astrue, 498 F.3d
767, 770 (8th Cir. 2007) (internal quotation marks and citation omitted). “Substantial evidence on
the record as a whole . . . requires a more scrutinizing analysis.” Id. (internal quotation marks and
citations omitted).
“Well-settled precedent confirms that the ALJ bears a responsibility to develop the record
fairly and fully, independent of the claimant’s burden to press his case.” Vossen v. Astrue, 612 F.3d
1011, 1016 (8th Cir. 2010) (quoted case omitted). “[T]he ALJ has a duty to develop facts fully and
fairly, especially in a case where the claimant is not represented by counsel.” Reeder v. Apfel, 214
F.3d 984, 987 (8th Cir. 2000). Remand is appropriate where the ALJ fails to consider or discuss a
crucial issue or evidence. See, e.g., Vossen, 612 F.3d at 1016-17 (remand required where ALJ failed
to develop the record to determine the authenticity of an unsigned report from the Commissioner’s
consultative physician); Chunn v. Barnhart, 397 F.3d 667, 672 (8th Cir. 2005) (remand required
because ALJ failed to make adequate findings with regard to non-treating psychologist’s opinion).
VI. Discussion
As stated above, plaintiff filed an Application of Estoppel and an Objection to the Report and
Recommendation, which states that “plaintiff objects because of fraudulent actions.”

The

Commissioner objected to the Report and Recommendation arguing that it seeks to reverse the
agency’s decision on the basis that the ALJ failed to provide analyze an issue–the circumstances of
each of the fourteen overpayments plaintiff received–that plaintiff never raised in his request for a
hearing or at the hearing. The Commissioner concedes that the ALJ’s Decision incorrectly stated
the overpayment related to plaintiff’s 2009 incarceration was $2,055.17, rather than the correct

25

amount of $674.00, but contends “an arguable deficiency in opinion writing that has no practical
effect on the decision is not a sufficient reason to set aside the ALJ’s decision.” (Doc. 44 at 3.)
The Supreme Court has held that a Social Security claimant need not exhaust issues in a
request for review to the Appeals Council in order to preserve judicial review of those issues. Sims
v. Apfel, 530 U.S. 103, 112 (2000). The Eighth Circuit has held similarly. In Harwood v. Apfel,
186 F.3d 1039 (8th Cir. 1999), the Court rejected the Commissioner’s argument that the claimant
forfeited issues not raised before the Appeals Council: “Although a party seeking judicial review
of an agency action must generally exhaust available agency remedies and may not generally
proceed upon an argument not made to the agency, the general rule makes little sense in [the social
security] context.” Id. at 1042 (internal citation omitted). “The Appeals Council routinely considers
arguments not specifically raised by claimants before it–a product of its duty to review an ALJ’s
decision ‘in an informal, nonadversary (sic) manner’ and a fitting analogue to the ALJ’s wellestablished duty to develop a full and fair record[.]” Id. See also Fisher v. Colvin, 2014 WL
859157, *3 (D. Minn.9 Mar. 5, 2014) (“because the point of any judicially-imposed issue exhaustion
requirement would be to ensure that the agency has an opportunity to address an issue that is within
its area of expertise, it would [be] odder still to preclude [the claimant] from arguing the issue in
these circumstances, where the ALJ affirmatively recognized and addressed the issue in the decision
that is on review.”) (internal citation omitted).
This Court generally decides appeals under the Social Security Act by considering the issues
raised and argued in a plaintiff’s brief. Courts are not required to guess as to the grounds for an
appeal, nor are they obliged to scour an evidentiary record for every conceivable error. See Jain v.
CVS Pharmacy, Inc., 779 F.3d 753, 758-59 (8th Cir. 2015). But a reviewing court may not, on the

26

other hand, “abdicate its traditional judicial function, nor escape its duty to scrutinize the record as
a whole to determine whether the conclusions reached are reasonable, and whether the hearing
examiner applied correct legal standards to the evidence.” Bridges v. Gardner, 368 F.2d 86, 90 (5th
Cir. 1966).
A court’s duty to scrutinize the record as a whole to determine whether the conclusions
reached are reasonable and whether the ALJ applied correct legal standards to the evidence is
especially important because “unlike the typical judicial proceeding, a social security disability case
is nonadversarial[.]” Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997) (citing 20 C.F.R.
§ 404.944 (requiring the ALJ to “look[ ] fully into the issues”)). See also Frith v. Celebrezze, 333
F.2d 557, 561 (5th Cir. 1964) (reversing sua sponte upon observing that the hearing examiner failed
to address and resolve crucial factors); Litzsinger v. Astrue, 2008 WL 420033, at *6 (D. Colo. Feb.
13, 2008) (finding sua sponte that the ALJ erred in assessing plaintiff’s RFC); Szczecina v. Astrue,
2008 WL 216379, at *7 (D. Colo. Jan. 24, 2008) (considering issue of acceptable medical sources
sua sponte); Gravel v. Barnhart, 360 F.Supp.2d 442, 453 (N.D.N.Y. 2005) (court sua sponte notes
that additional deficiencies in the ALJ’s decision warrant remand).
In her objections to the Magistrate Judge’s Report and Recommendation, the Commissioner
concedes that the ALJ’s Decision incorrectly stated that the April 2009 overpayment amounted to
$2,055.17 instead of the correct amount, $674.00, but contends that “an arguable deficiency in
opinion writing that has no practical effect on the decision is not a sufficient reason to set aside the
ALJ’s decision.” (Doc. 44 at 3.) It is true that “an arguable deficiency in opinion-writing technique
does not require us to set aside an administrative finding when that deficiency had no bearing on the
outcome.” Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008) (internal quotations omitted). In this

27

case, however, the foregoing error and the other errors the ALJ made cannot be attributed to a mere
deficiency in opinion writing, and it certainly cannot be said that the ALJ’s errors had no practical
effect on the outcome of the case.
While an ALJ ordinarily has no obligation to investigate claims not presented at time of
application or not offered at hearing, Sullins v. Shalala, 25 F.3d 601, 605 (8th Cir. 1994), the ALJ
in this case expressly recognized that plaintiff was challenging both the amount withheld due to his
incarceration and the amounts withheld from his benefits, as he specifically stated:
Number one, you’re saying that you should not have been incarcerated, if you had
not been incarcerated then there would not be an overpayment. And then second of
all, the withholding amounts, you disagree with the withholding amounts.
(R. 479-80.) The ALJ then noted that plaintiff shook his head yes. (Id.) In his decision, however,
the ALJ focused solely on the first issue: whether plaintiff was overpaid SSI considering his
allegation that he was wrongfully imprisoned. The ALJ failed to expressly state that he had
considered other adjustments the SSA made to plaintiff’s benefits, even though any such
adjustments would have been clearly relevant to the withholding amounts, the second hearing issue
the ALJ expressly recognized. The ALJ’s failure to state in his opinion that he had considered other
adjustments leaves the Court unsure whether the ALJ considered other adjustments and determined
that the withholding amounts were correct, or whether he failed to consider them at all. Also, the
ALJ stated that plaintiff did not dispute that he received $2,055.17 while incarcerated, a statement
that was factually incorrect.
The ALJ should have developed the record by asking plaintiff about the facts underlying his
disagreement with the withholding amounts, and he should have considered other adjustments made
to plaintiff’s benefits to determine whether the withholding amounts were correct.

28

The

administrative hearing is a non-adversarial proceeding, see Battles v. Shalala, 36 F.3d 43, 44 (8th
Cir. 1994), and the Eighth Circuit has recognized that the “ALJ has a duty to develop facts fully and
fairly, and this duty is enhanced when the claimant is not represented by counsel.” Cox v. Apfel,
160 F.3d 1203, 1209 (8th Cir. 1998); accord Hildebrand v. Barnhart, 302 F.3d 836, 838 (8th Cir.
2002); see also Ventura v. Shalala, 55 F.3d 900, 901-02 (3d Cir. 1995) (the ALJ “has an affirmative
obligation to actually assist the claimant in developing the facts.”) (quoted case omitted).
On remand, the ALJ should develop the record fully and fairly in accordance with this
Memorandum and Order. The ALJ should consider facts and evidence relevant to the calculation
of plaintiff’s SSI benefits, including but not limited to any overpayments plaintiff may have
received. The ALJ’s decision should clearly set forth the facts and evidence that were considered
in reaching the decision, and clearly explain the reasoning behind the decision.
Accordingly,
IT IS HEREBY ORDERED that the Court will adopt the Report and Recommendation of
the United States Magistrate Judge in part, to the extent that it recommends remand of this matter,
but will remand with directions for the ALJ to develop the record fully and fairly with respect to
plaintiff’s challenge to the calculation of his SSI benefits as set forth herein. [Doc. 41]
IT IS FURTHER ORDERED that the parties’ objections to the Report and
Recommendation are OVERRULED and plaintiff’s “Application of Estoppel” and request for
summary judgment are DENIED. [Doc. 42]
IT IS FURTHER ORDERED that, pursuant to sentence four of 42 U.S.C. § 405(g), the
decision of the Commissioner is REVERSED and REMANDED for further proceedings consistent
with this Memorandum and Order.

29

An appropriate judgment of remand will accompany this Memorandum and Order.

__________________________________
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 28th day of September, 2016.

30