UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

JEANETTE A. WICKS, 

 Plaintiff-Appellant, 

v. 

CAROLYN W. COLVIN, Acting 

Commissioner of Social Security, 

 Defendant-Appellee. 

No. 13-1542 

(D.C. No. 1:12-CV-01510-RBJ) 

(D. Colo.)

 

ORDER AND JUDGMENT*

 

Before TYMKOVICH, HOLMES, and McHUGH, Circuit Judges. 

 

 Jeanette A. Wicks, proceeding pro se, appeals the district court’s judgment 

affirming the Social Security Commissioner’s application of the Government Pension 

Offset (“GPO”) provision of the Social Security Act (the Act) to reduce the amount 

of Ms. Wicks’ social security survivor’s benefit throughout her lifetime. Exercising 

jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm. 

 

*

 The parties have not requested oral argument. Having examined the briefs and 

appellate record, the panel concludes that oral argument would not materially assist 

the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 

Accordingly, the case is ordered submitted without oral argument. This order and 

judgment is not binding precedent, except under the doctrines of law of the case, res 

judicata, and collateral estoppel. It may be cited, however, for its persuasive value 

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 11, 2014

Elisabeth A. Shumaker 

Clerk of Court
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I. Background 

For many years, Ms. Wicks worked for various state and local organizations 

covered by the Public Employees’ Retirement Association of Colorado (“PERA”). 

During this PERA-covered employment, Ms. Wicks was exempt from paying Social 

Security taxes. 

In March 1996, after leaving PERA-covered employment, Ms. Wicks received 

a lump sum payment of her PERA retirement benefits in the amount of $22,144.08, 

which included Ms. Wicks’ contributions and matched contributions from her 

employers. Ms. Wicks later returned to PERA-covered employment for several 

years. In January 2006, she received a second lump sum payment from PERA for 

$4,440.82, which also included matched employer contributions. 

Ms. Wicks began receiving a social security retirement insurance benefit (SSI 

retirement benefit) in March 2006. The Social Security Administration (the Agency) 

did not reduce Ms. Wicks’ SSI retirement benefit to reflect the PERA lump sum 

payments. In June 2009, following the death of her former husband, Ms. Wicks 

applied for a social security survivor’s benefit. At that time, the Agency informed 

Ms. Wicks that the GPO applied and her survivor’s benefit would be reduced by the 

prorated amount of the PERA lump sum pension payments.1

 After an unsuccessful 

 

1

 The Agency also informed Ms. Wicks that her separate social security 

retirement benefit should have been reduced based upon the Windfall Elimination 

Provision (WEP) of the Act. Because Ms. Wicks has not challenged the Agency’s 

(continued) 
- 3 - 

request for reconsideration, Ms. Wicks sought a hearing before an Administrative 

Law Judge (“ALJ”). At that hearing in July 2011, Ms. Wicks waived her right to 

representation and testified on her own behalf. Ms. Wicks’ efforts were successful, 

in part. 

A. The ALJ’s Decision 

The ALJ determined that the GPO provision applied to Ms. Wicks’ survivor’s 

benefit, but only with respect to the January 2006 lump sum payment. In reaching 

his conclusion, the ALJ first prorated the two lump sum pension payments to a 

monthly value and then calculated their extinguishment dates according to actuarial 

tables in the Agency’s Program Operations Manual System (“POMS”). For example, 

because Ms. Wicks was 55 at the time of the March 1996 lump sum payment, the 

ALJ adopted the actuarial value of 140.9 to prorate that payment. See POMS GN 

02608.400(D)(3)(b). Specifically, the ALJ divided the $22,144.08 received in the 

1996 lump sum by that 140.9 figure to arrive at the monthly value of the March 1996 

PERA benefit. In addition to using the actuarial value to prorate the lump sum 

payments to a monthly value, the ALJ used it to calculate the date upon which the 

lump sum amount would be extinguished. Assuming that the “end of the prorated 

period for the first lump sum, as indicated by the actuarial charts, is 140.9 months

after receipt, or December 1, 2007,” Admin. R. at 25 (emphasis added), the ALJ 

 

application of the WEP on appeal, we do not address that issue in our recitation of 

the facts or analysis. 
- 4 - 

concluded the March 1996 lump sum payment “was deemed extinguished” before 

Ms. Wicks became entitled to survivor’s benefits in June 2009. See id. at 25-26. 

Next, the ALJ determined that the POMS guidelines were ambiguous as to 

whether the GPO applied when the prorated period ended before the entitlement to 

benefits commenced. He therefore, resolved the ambiguity in favor of Ms. Wicks 

and held the March 1996 lump sum payment was not subject to the GPO. In contrast, 

because the January 2006 lump sum payment was not extinguished prior to 

Ms. Wicks’ entitlement to survivor’s benefits, the ALJ concluded it was subject to 

the GPO throughout Ms. Wicks’ lifetime. 

B. The Appeals Council Decision 

Concerned that the ALJ’s decision may include an error of law, the Social 

Security Appeals Council notified Ms. Wicks that it was reviewing the decision on its 

own motion. See 20 C.F.R. § 404.969(a); id. § 404.970(a)(2). The Appeals Council 

disagreed with the ALJ’s conclusion that the GPO did not apply to the March 1996 

lump sum payment. It explained that where the relevant pension plan does not 

specify the payment period, Agency policy is to prorate the lump sum as if it were to 

be received monthly over a lifetime, which results in a corresponding lifetime 

reduction of the individual’s monthly survivor’s benefit. See 20 C.F.R. 

§ 404.408a(a); POMS GN 02608.400(A); see also POMS GN 02608.400(D)(3)(b). 

Accordingly, the Appeals Council ordered that Ms. Wicks’ monthly benefits be 
- 5 - 

recalculated. It did not address, and, therefore, did not disturb the ALJ’s finding 

regarding application of the GPO to the January 2006 lump sum pension payment. 

Ms. Wicks sought judicial review of the Appeals Council’s decision, and the 

district court affirmed. See Williams v. Bowen, 844 F.2d 748, 749 (10th Cir. 1988)

(holding that Appeals Council’s decision is the Commissioner’s final decision); 

20 C.F.R. § 404.981. She now appeals. 

II. Discussion 

A. Standard of Review 

“We review the Commissioner’s decision to determine whether the factual 

findings are supported by substantial evidence in the record and whether the correct 

legal standards were applied.” Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 

2003). “Substantial evidence is such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion. It requires more than a scintilla, but less 

than a preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (internal 

citation and quotation marks omitted). “[W]e will not reweigh the evidence or 

substitute our judgment for the Commissioner’s.” Id. (internal quotation marks 

omitted). 

Because Ms. Wicks proceeds pro se, we liberally construe her filings. 

See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). We will not, however, 

serve as her advocate. See id. 
- 6 - 

B. Analysis 

As best we can discern, Ms. Wicks raises the following challenges to the 

Commissioner’s decision: (1) the Appeals Council erred in determining that the 

March 1996 prorated lump sum payment did not have a finite ending date after which 

the GPO would no longer reduce her survivor’s benefit; (2) the Agency acted 

contrary to its Congressional authority in adopting rules allowing the reduction of 

social security benefits throughout the beneficiary’s lifetime based on lump sum 

retirement payments from non-covered sources; and (3) the Agency violated her 

federal constitutional rights to due process and equal protection. Addressing these 

issues in turn, we first conclude that because the PERA retirement plan did not 

identify a specific payment period, the Agency correctly imposed the GPO for as 

long as Ms. Wicks is entitled to the benefit—her lifetime. Next, we hold the Agency 

acted within the authority delegated to it by Congress in adopting rules governing the 

lifetime application of the GPO to lump sum retirement payments made for 

unspecified time periods. Finally, we reject Ms. Wicks’ constitutional claims. 

 1. Duration of the GPO 

The GPO reduces the monthly Social Security benefits, including the 

survivor’s benefit, of an individual who is also entitled to a government pension 

based on non-covered employment. See 42 U.S.C. § 402(k)(5)(A); 20 C.F.R. 

§ 404.408a(a). Non-covered employment is employment during which the worker’s 

wages are exempt from Social Security taxes. See Stroup v. Barnhart, 327 F.3d 
- 7 - 

1258, 1259 (11th Cir. 2003). Because Ms. Wicks did not pay social security taxes on 

the wages received from her government employers, the PERA lump sum payments 

are based on non-covered employment. 

Therefore, the GPO applies and reduces Ms. Wicks’ monthly survivor’s 

benefit by “two-thirds of the amount of any monthly periodic benefit” payable based 

on non-covered earnings. See 42 U.S.C. § 402(k)(5)(A); see also 20 C.F.R. 

§ 404.408a(d). The Act defines “Periodic benefit” to include “a benefit payable in a 

lump sum if it is a commutation of, or a substitute for, periodic payments.” 

42 U.S.C. § 402(k)(5)(C). There is no dispute that the lump sum PERA payments 

were a commutation of or substitute for periodic pension payments, and, thus, a 

periodic pension benefit under the Act. The Act, together with the Agency 

regulations and guidelines, provides instruction on converting the lump sum periodic 

benefit into a monthly periodic benefit for purposes of the GPO. 

When an individual’s pension is paid in a lump sum, the Act provides that it 

“shall be allocated on a basis equivalent to a monthly benefit (as determined by the 

Commissioner . . .).” Id.; see also 20 C.F.R. § 404.408a(a) (“If the government 

pension is not paid monthly or is paid in a lump-sum, we will determine how much 

the pension would be if it were paid monthly and then reduce the monthly Social 

Security benefit accordingly.”). The regulations further explain, “[t]he number of 

years covered by a lump-sum payment, and thus the period when the Social Security 

benefit will be reduced,” varies depending on the terms of the particular pension 
- 8 - 

plan. 20 C.F.R. § 404.408a(a). The terms of the pension plan dictate the duration of 

the reduction when they clearly indicate the lump sum payment is for a specified 

period. Id. When the payment period is not identified in the pension plan, however, 

the Agency will determine the reduction period on an individual basis. Id. 

The method of determining the reduction period for a lump sum payment, and 

arriving at a monthly amount on an individual basis, is explained in the Agency’s 

POMS guidelines.2

 POMS GN 02608.400(D)(3) provides that “[w]hen the entire 

pension is paid in a lump sum, the amount may represent a specified period of time or 

a ‘lifetime.’” Where, as here, the pension-paying agency – i.e. PERA – does not 

itself prorate the lump sum to establish a monthly amount for GPO purposes, the 

Agency prorates it in accordance with its POMS guidelines. See id. In such 

circumstances, POMS GN 02608.400(D)(3)(b) directs that the lump sum be prorated 

in the same manner as a lump sum representing payments for a “lifetime.” The 

method for converting a “lifetime” lump sum payment to a monthly amount is to 

divide the lump sum amount by an “actuarial value,” as identified in the POMS table 

that corresponds to the worker’s age on the date of the lump sum award. See id. And 

because the lump sum is prorated monthly over a lifetime, the individual’s monthly 

 

2

 “The [agency’s] policy guidelines are provided in the [POMS], which is a set 

of policies issued by the [agency] ‘to be used in processing claims.’” Ramey v. 

Reinertson, 268 F.3d 955, 964 (10th Cir. 2001) (quoting McNamar v. Apfel, 172 F.3d 

764, 766 (10th Cir. 1999)). The POMS represents the agency’s own interpretation of 

its regulations and the statutes governing its operations. See Lopes v. Dep’t of Soc. 

Servs., 696 F.3d 180, 186 (2d Cir. 2012). The POMS are entitled to deference unless 

they are arbitrary, capricious, or contrary to law. McNamar, 172 F.3d at 766. 
- 9 - 

survivor’s benefit is also reduced throughout her life. See POMS GN 02608.400(A) 

(providing that lump sum payments made for unspecified periods be “prorated as 

though it is received monthly over a lifetime”). See also POMS GN 

02608.400(D)(3)(b). The Agency’s application of the GPO to Ms. Wicks’ survivor’s 

benefit throughout her lifetime is consistent with these guidelines.3

 

The Appeals Council’s application of the relevant statute, regulations, and 

POMS provisions was not arbitrary, capricious, or contrary to law and we therefore 

defer to the Agency’s interpretation. See McNamar v. Apfel, 172 F.3d 764, 766 

(10th Cir. 1999). The Appeals Council applied the correct legal standards and its 

decision is supported by substantial evidence.4

 Consequently, we do not disturb its 

decision. 

 

3

 In support of her contrary position, Ms. Wicks relies on Section (C)(5) of 

POMS RS 00605.360, entitled “WEP Applicability,” which in its current version 

provides that WEP application ends “when . . . the proration of a lump sum payment 

based on a specified period ends.” A prior version relied on by Ms. Wicks states that 

WEP application ends “when . . . the proration of lump sum payment ends.” See

Dist. Ct. R. at 21. Here, the PERA lump sum payments were not based on a specified 

period. 

4

 The same analysis applies to the January 2006 lump sum pension payment, 

which the Appeals Council did not address, and by its silence did not disturb. Like 

the March 1996 lump sum payment, PERA did not specify that the January 2006 

payment represented a specified period of time. The January 2006 lump sum 

payment is therefore prorated as if paid over a lifetime, which results in a 

corresponding lifetime reduction of Ms. Wicks’ monthly survivor’s benefit. 
- 10 - 

 2. Congressional Authority 

Ms. Wicks next challenges the Agency’s adoption of the pertinent POMS 

provisions, arguing that the Commissioner has not “been given congressional 

authority to by-pass congress and the President and rewrite the statu[t]es.”5

 Aplt. 

Opening Br. at 4. While we agree with Ms. Wicks’ general premise, we are not 

convinced the Agency has exceeded its authority. Congress delegated to the 

Commissioner full power and authority to make regulations and establish procedures, 

not inconsistent with the Social Security Act, which are necessary to implement the 

provisions of the Act. See 42 U.S.C. § 405(a). In applying the GPO to periodic 

benefits paid on other than a monthly basis – i.e., a lump sum payment – the Act 

provides that such a periodic benefit “shall be allocated on a basis equivalent to a 

monthly benefit (as determined by the Commissioner of Social Security).” 

Id. § 402(k)(5)(C) (emphasis added). Accordingly, Congress has given the 

Commissioner the express authority to administer the GPO in a manner determined 

by the Commissioner. 

Our review of the Agency’s “interpretation of a statute or regulation it 

administers is highly deferential.” McNamar, 172 F.3d at 766. The Agency has 

adopted guidelines for the application of the GPO in situations where the period 

covered by a lump sum payment is unspecified by the pension plan. Nothing in those 

 

5

 We interpret Ms. Wicks’ references to “statutes” to mean the applicable POMS 

provisions. 
- 11 - 

guidelines directly contradicts the terms of the Act. Nor are we convinced that the 

Commissioner has applied the GPO in a manner that is arbitrary, capricious, or 

contrary to law. As a result, we reject Ms. Wicks’ argument that the Agency 

exceeded its authority or acted contrary to law in applying the GPO. 

 3. Due Process and Discrimination Claims 

Finally, Ms. Wicks complains that her constitutional rights have been violated 

in two respects. First she asserts she was denied her right to due process because the 

Appeals Council failed to respond promptly to her requests for extensions of time, 

failed to provide her with requested information, fabricated facts, and denied her the 

opportunity to appear before the Appeals Council. Second, she raises an equal 

protection claim, arguing that the GPO provision treats government retirees 

discriminatorily in comparison with private retirees. 

Ms. Wicks’ complaints do not constitute a denial of due process. “[D]ue 

process requires notice and a meaningful opportunity to be heard.” Standard Indus., 

Inc. v. Aquila, Inc. (In re C.W. Mining Co.), 625 F.3d 1240, 1244 (10th Cir. 2010). 

Ms. Wicks appeared and had an opportunity to be heard before the ALJ. When the 

Appeals Council notified Ms. Wicks of its intent to review the ALJ’s decision, it 

further advised her that she could provide additional evidence and request to be 

present for oral argument. Although the Appeals Council ultimately denied her 

request to appear and argue, it acted within its discretion in doing so. See 20 C.F.R. 

§ 404.976(c). Ms. Wicks was permitted to argue and to submit written materials to 
- 12 - 

the ALJ and that record was available to the Appeals Council. Thus, the decision to 

limit her participation at the Appeals Council to the submission of written materials 

was not a deprivation of Ms. Wicks’ opportunity to be heard. Having considered the 

substance of Ms. Wicks’ other complaints we are convinced they also do not rise to 

the level of a due process violation.6

Finally, Ms. Wicks appears to raise an equal protection claim, arguing that the 

GPO did not “equalize” government retirees and private retirees and instead 

discriminated against retirees, like Ms. Wicks, who did not pay social security taxes. 

In particular, she claims that if the GPO remains in effect after the full amount of the 

lump sum payments has been extinguished through reductions in her social security 

benefits, she will receive a reduction in benefits greater than the PERA retirement 

benefits she received based on non-covered employment. This result, she claims, 

treats government retirees less favorably than private retirees. Reviewing 

Ms. Wicks’ claim de novo, see White v. Colorado, 157 F.3d 1226, 1232 (10th Cir. 

1998), we conclude the GPO provision does not violate the Equal Protection Clause. 

 

6

 Ms. Wicks argues that the Appeals Council failed to consider new evidence 

that she submitted to it for its review of the ALJ’s decision. The Appeals Council’s 

decision stated that “[n]o comments or additional evidence have been received.” 

Admin. R. at 7. The Appeals Council must consider evidence submitted with a 

request for review if the evidence is new, material, and relates to a period on or 

before the date of the ALJ’s decision. Threet v. Barnhart, 353 F.3d 1185, 1191 

(10th Cir. 2003); 20 C.F.R. § 404.970(b). Failure to consider such evidence is 

grounds for remand. See Threet, 353 F.3d at 1191. Reviewing the evidence de novo, 

see id., we conclude the evidence is not new or material and thus, there is no cause 

for remand. 
- 13 - 

Government retirees who have not contributed to the social security fund are not 

similarly situated to private retirees who have paid social security taxes on their 

wages. Unlike employees subject to social security taxes, Ms. Wicks had the benefit 

of the present value of that money. Under these circumstances, the Agency decision 

to treat retirees from non-covered employment, like Ms. Wicks, differently than 

private retirees is not discriminatory. 

III. Conclusion 

 The Agency applied the GPO to the March 1996 lump sum PERA retirement 

benefit according to its guidelines, which were adopted pursuant to the authority 

delegated to the Agency by Congress. Ms. Wicks has not suffered a deprivation of 

her constitutional rights to due process or equal protection. Accordingly, the 

judgment of the district court is affirmed. 

 Entered for the Court 

 Carolyn B. McHugh 

 Circuit Judge