United States Court of Appeals

For the Eighth Circuit

___________________________

No. 13-1880

___________________________

Mick Thomas Rodysill

lllllllllllllllllllll Plaintiff - Appellant

v.

Carolyn W. Colvin, Acting Commissioner of the Social Security Administration

lllllllllllllllllllll Defendant - Appellee

____________

 Appeal from United States District Court 

for the District of Nebraska - Lincoln

____________

 Submitted: November 20, 2013

 Filed: March 21, 2014

____________

Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.

____________

GRUENDER, Circuit Judge.

Mick Rodysill appeals the district court’s judgment upholding the decision of 1

the Commissioner of the Social Security Administration (the “Commissioner”). The

The Honorable Thomas D. Thalken, United States Magistrate Judge for the

1

District of Nebraska, to whom the case was referred for final disposition by consent

of the parties pursuant to 28 U.S.C. § 636(c).
Commissioner determined that Rodysill was not entitled to waiver of recovery of

overpaid disability benefits. Finding that substantial evidence supports the

Commissioner’s decision, we affirm.

I. Background

Rodysill began receiving Social Security disability benefits in 1996. In April

2007, the Commissioner notified Rodysill that his eligibility for disability benefits

had ended in July 2003 based upon his substantial work activity. The Commissioner

subsequently issued a revised decision that Rodysill’s benefits should have ended in

June 2004. The Commissioner ordered Rodysill to repay the overpayment of

disability benefits that he received between June 2004 and March 2007, which the

Commissioner calculated to be $21,929.

Rodysill requested waiver ofrecovery ofthe overpayment. TheCommissioner

denied waiver of recovery and proposed that Rodysill make payments of $300 per

month to repay the overpayment. Rodysill then requested and received a hearing

before an administrative law judge (“ALJ”). Although the ALJ determined that

Rodysill was not at fault in causing the overpayment, the ALJ denied waiver of

recovery. The ALJ concluded that recovery of the overpayment did not defeat the

purpose of Title II of the Social Security Act and was not against equity and good

conscience. In finding that recovery of the overpayment did not defeat the purpose

of Title II, the ALJ determined Rodysill’s ability to repay the overpayment by

considering the incomes and expenses of both Rodysill and his wife. Rodysill’s

financial reports showed that their household income exceeded their expenses by

$970 in April 2009 and by $477 in April 2010. The ALJ also mentioned Rodysill and

his wife’s purchase of a home while his appeal was pending. The ALJ concluded,

“Nonetheless, [Rodysill] and his wife still [] have some income each month that could

be used for repayment.” The ALJ also alluded to Rodysill’s testimony that he would

-2-
be working more hours in the future. However, the ALJ did not adjust Rodysill’s

income due to this possible increase in income.

After the Appeals Council denied Rodysill’s request for review, Rodysill

sought review in the district court pursuant to 42 U.S.C. § 405(g). The district court

concluded that substantial evidence supports the Commissioner’s decision to deny

waiver of recovery of the overpayment. Rodysill appeals.

II. Discussion

We review de novo a district court’s conclusion that substantial evidence

supportsthe Commissioner’s decision. Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir.

2011). Substantial evidence is “less than a preponderance but . . . enough that a

reasonable mind would find it adequate to support the conclusion.” Jones v. Astrue,

619 F.3d 963, 968 (8th Cir. 2010) (alteration in original) (quoting Kluesner v. Astrue,

607 F.3d 533, 536 (8th Cir. 2010)). In determining whether substantial evidence

supports the Commissioner’s decision, we “‘consider the evidence that supports the

Commissioner’s decision as well as the evidence that detracts from it.’ We may not

reverse the Commissioner merely because ‘we would have come to a different

conclusion.’” Id. (quoting Kluesner, 607 F.3d at 536) (internal citation omitted).

Whenever the Commissioner determines that an individual has received an

overpayment of benefits, “proper adjustment or recovery shall be made.” 42 U.S.C.

§ 404(a)(1). However, the Commissioner is not permitted to recover an overpayment

of benefits “from[] any person who is without fault if such adjustment or recovery

would defeat the purpose of this subchapter or would be against equity and good

conscience.” Id. § 404(b). An individual who has received an overpayment and who

is without fault may request waiver of recovery based upon either of these

prohibitions, 20 C.F.R. § 404.506, and in doing so, bears the burden of proof, Sipp

v. Astrue, 641 F.3d 975, 981 (8th Cir. 2011).

-3-
Rodysill argues that recovery of the overpayment defeats the purpose of Title

II of the Social Security Act. This occurs where recovery “deprive[s] a person of

income required for ordinary and necessary living expenses,” such as in “situations

where the person from whom recovery issought needs substantially all of his current

income . . . to meet current ordinary and necessary living expenses.” 20 C.F.R.

§ 404.508(a), (b); see also id. § 404.508(a) (explaining that “[t]his depends upon

whether the person has an income or financial resources sufficient for more than

ordinary and necessary needs, or is dependent upon all of his current benefits for such

needs”). As the ALJ observed, both of Rodysill’s financial reports show that his

household income exceeds his monthly expenses. Based upon this fact and the other

evidence in the record, the ALJ determined that Rodysill does not need “substantially

all” of his household income to meet ordinary and necessary living expenses.

Rodysill claims that the ALJ erred by including Rodysill’s wife’s income as

part of the income available for repayment. This was improper, Rodysill argues,

because he was not married when he received the disability overpayments. However,

the procedures used by the Commissioner to process claims for Social Security

benefits, which are termed the Commissioner’s Program Operations Manual System

(“POMS”), provide that a spouse’s income is included when calculating the income

available for repayment. Setting forth the Commissioner’s policy for determining

“income” and “ordinary and necessary living expenses,” the relevant POMSguideline

provides that the Commissioner “[c]onsider income to a spouse and dependents as

being available to the person requesting waiver.” POMS GN § 02250.120. This

POMS guideline does not draw a distinction based upon marital status at the time that

the individual received the overpayment. Accordingly, the Commissioner interprets

the term “income” in 20 C.F.R. § 404.508 to include a spouse’s income.

As an interpretation of a regulation promulgated by the Commissioner, the

POMS control unless they are inconsistent with the regulation or plainly erroneous. 

Reutter ex rel. Reutter v. Barnhart, 372 F.3d 946, 951 (8th Cir. 2004) (citing Auer v.

-4-
Robbins, 519 U.S. 452, 461 (1997)); Gragert v. Lake, 541 F. App’x 853, 856 n.1

(10th Cir. 2013) (unpublished). Rodysill does not dispute that the relevant POMS

guideline specifies that his wife’s income should be included when determining his

ability to repay the overpayment. Nor does he contend that the POMS guideline is

inconsistent with 20 C.F.R. § 404.508. Instead, Rodysill argues that, by including his

wife’s income when calculating the income available for repayment, the relevant

POMS guideline is inequitable and effectively imposes a pre-marital debt on his wife. 

In support of this argument, Rodysill cites Nebraska law, which provides that

“[m]arital debt includes only those obligations incurred during the marriage for the

joint benefit of the parties.” Mathews v. Mathews, 676 N.W.2d 42, 58 (Neb. 2004). 

However, by including the income of Rodysill’s wife when calculating current

income, the Commissioner is not seeking or securing a judgment against Rodysill’s

wife for the amount of the overpayment. Instead, the Commissioner is considering

Rodysill’s household income for the limited purpose of determining how much

income is available for repayment. Based upon this record, we cannot say that the

relevant POMS guideline is plainly erroneous. See Reutter, 372 F.3d at 951. The

ALJ, then, did not err by considering Rodysill’s wife’s income in determining

whether Rodysill was able to repay the overpayment.2

Rodysill also argues that the ALJ erred by considering his purchase of a home

while his appeal from the denial of waiver of recovery was pending. While the ALJ

acknowledged that Rodysill and his wife had purchased a home, the ALJ did not

include Rodysill’s home as a liquefiable asset that would be relevant to Rodysill’s

ability to repay the overpayment. See POMS GN § 02250.125 (noting that a “family

home” is not considered an asset “which may be liquidated to repay an

Even if the Commissioner did not include the income of Rodysill’s wife when

2

calculating current income, Rodysill concedes that, based upon his pro rata income

and his share of household expenses, “at best he would be left with several hundred

dollars per month.” Thus, Rodysill admits that he would have excess income for

repayment even without including his wife’s income.

-5-
overpayment”). The ALJ simply explained that, even after purchasing a home,

“[Rodysill] and his wife still [] have some income each month that could be used for

repayment.”

Rodysill also assertsthat the ALJ should not have considered his testimony that

he would work more hours in the future. The relevant regulation indicates that

recovery defeats the purpose of Title II when recovery “deprive[s] a person of income

required for ordinary and necessary living expenses,” such asin “situations where the

person . . . needs substantially all of his current income.” 20 C.F.R. § 404.508(a), (b). 

The POMS provide that “[a]nticipated financial changes may . . . influence a person’s

ability to repay the overpayment, but they should be expected to occur within a few

months of the date of the waiver decision and should be verified.” POMS GN

§ 02250.115. Regardless of whether the Commissioner can consider an individual’s

potential for increased earningsin determining whether recovery defeats the purpose

of Title II, the ALJ here merelymentionedRodysill’s prospect of working more hours

in the context of making the point that Rodysill had a stable job. The ALJ did not

give Rodysill’s potential for increased earnings any further weight and did not adjust

Rodysill’s income based upon this possibility. Moreover, even without a potential

increase in income, Rodysill’s household income still exceeded his expenses by $970

in April 2009 and by $477 in April 2010. Accordingly, substantial evidence supports

the Commissioner’s conclusion that recovery of the overpayment does not defeat the

purpose of Title II of the Social Security Act.

Rodysill next arguesthat recovery ofthe overpayment “would be against equity

and good conscience.” 42 U.S.C. § 404(b). The relevant regulation explains that

recovery is against equity and good conscience if an individual:

(1) Changed his or her position for the worse . . . or relinquished a

valuable right . . . because of reliance upon a notice that a payment

would be made or because of the overpayment itself; or

-6-
(2) Was living in a separate household from the overpaid person at the

time of the overpayment and did not receive the overpayment.

20 C.F.R. § 404.509(a). The ALJ determined, and Rodysill does not dispute, that the

circumstances described in § 404.509(a)(1) are not present here. Rodysill contends

that § 404.509(a)(2) is applicable here because the Commissioner included his wife’s

income as part of the income available for repayment even though she did not receive

the overpayments and was not married to him at that time. But the Commissioner is

not seeking recovery of the overpayment from Rodysill’s wife. Rather, the

Commissioner is seeking recovery from Rodysill, the individual who received the

overpayments. See 42 U.S.C. § 404(a)(1)(A) (authorizing the Commissioner to

recoup overpaid benefits from the individual who received the overpayments). 

Section 404.509(a)(2) is therefore inapplicable.

Drawing on our opinion in Groseclose v. Bowen, 809 F.2d 502 (8th Cir. 1987),

Rodysill next asserts that § 404.509(a) does not exhaustively list the circumstances

when recovery is against equity and good conscience. In Groseclose, the Secretary

of Health and Human Services sought adjustment of an individual’s retirement

benefits to recoup overpayments of insurance benefits that had been made to his

daughter. Id. at 503. The father did not receive the overpayments or accept them on

behalf of his daughter, was not at fault in causing the overpayments, and had no

knowledge that his daughter was receiving the overpayments. Id. at 505-06. Even

though the regulations did not specify that recovery in this circumstance was against

equity and good conscience—as they do now—the Groseclose court determined that

recovery from the father of the overpayments that were made to his daughter was

against equity and good conscience. Id. at 506. Rodysill urges that recovery is

against equity and good conscience because the ALJ considered his wife’s income in

determining his ability to repay the overpayment. However, “[t]he individual’s

financial circumstances are not material to a finding of against equity and good

conscience.” 20 C.F.R. § 404.509(b). Moreover, unlike Groseclose, the

-7-
Commissioner is seeking recovery from the individual who received the

overpayments, thus minimizing the inequity that the court relied upon in Groseclose.

Rodysill further asserts that repayment is against equity and good conscience

because he had no knowledge of the overpayments and because the overpayments

were due to the negligence of the Commissioner. In essence, Rodysill equates the

fact that the ALJ adjudged him to be without fault in causing the overpayments with

the recovery of these overpayments being against equity and good conscience.

However, the Social Security Act explicitly distinguishes between these two

showings, specifying that there shall be no recovery of an overpayment “from[] any

person who is without fault if such adjustment or recovery . . . would be against

equity and good conscience.” 42 U.S.C. § 404(b) (emphasis added). Accordingly,

merely being without fault pursuant to § 404(b) does not render recovery of the

overpayment against equity and good conscience. See Coulston v. Apfel, 224 F.3d

897, 900-01 (8th Cir. 2000) (“Our finding that [the plaintiff] was without fault does

not automatically result in a victory for him. We must also determine whether

repayment would defeat the purpose of providing social security to [him] or would

be against equity or good conscience.”).

Rodysill also argues that waiver of recovery is proper because he accepted the

overpayments in reliance on representations made by the Commissioner. The

relevant regulations provide that an individual is entitled to waiver of recovery if he

“accepts such overpayment because of reliance on erroneous information from an

official source within the Social Security Administration . . . with respect to the

interpretation of a pertinent provision of the Social Security Act or regulations

pertaining thereto.” 20 C.F.R. § 404.510a; see also id. § 404.512(a) (“In the

situation[] described in . . . [§] 404.510a, adjustment or recovery will be waived since

it will be deemed such adjustment or recovery is against equity and good

conscience.”). In Gladden v. Callahan, 139 F.3d 1219 (8th Cir. 1998), we interpreted

these regulations to provide that an individual is entitled to waiver of recovery of an

-8-
overpayment where he relied upon the statement of an ALJ in accepting the

overpayment. Id. at 1220, 1223.

Relying on Gladden, Rodysill asserts that he notified the Commissioner of his

work activity and that he accepted the overpayments because the Commissioner

continued to provide disability benefits. However, accepting overpayments in

reliance on the statement of an ALJ concerning one’s continuing entitlement to

disability benefits, asin Gladden, is entirely different from the situation present here,

where Rodysill relied on the mere fact that the Commissioner continued to provide

disability benefits. Indeed, the SixthCircuitrejected an analogous argument in Valley

v. Commissioner of Social Security, 427 F.3d 388 (6th Cir. 2005), where the plaintiff

notified the Commissioner of his current work status and claimed that he accepted the

overpayments because of letters that he received from the Commissioner. Id. at 390,

393. These letters, which accompanied his benefits checks, described his current

benefits and informed him of increases in his benefits. Id. at 390. Interpreting

§ 404.510a, the Sixth Circuit reasoned, “Although the letters necessarily imply some

interpretation of the Act and its regulations because they outline [the plaintiff’s]

entitlement to benefits and a benefits increase, they do not purport to make any

explicit or specific interpretation.” Id. at 393. The court further explained, “If these

documents—obviously formletters—constituted official interpretation of the statute

or regulations sufficient to trigger the good conscience exception to repayment,

virtually every Social Security benefit recipient would be entitled to waiver of

repayment assuming they received benefits of any kind and a letter describing those

benefits.” Id. We agree with the Sixth Circuit’s interpretation of § 404.510a. 

Consequently, Rodysill’s mere receipt of disability benefits after notifying the

Commissioner of his work activity does not satisfy § 404.510a. Substantial evidence 3

Rodysill further argues that he accepted the overpayments under § 404.510a

3

because of conflicting written notices that he received from the Commissioner that

informed him of overpayments and underpayments of disability benefits. However,

Rodysill did not make this argument to the district court, and as such, the district

-9-
thussupports the Commissioner’s conclusion that recovery of the overpayment from

Rodysill is not against equity and good conscience.

III. Conclusion

Because the Commissioner’s decision to deny waiver of recovery is supported

by substantial evidence, we affirm.

______________________________

court did not consider whether Rodysill accepted the overpayments pursuant to

§ 404.510a because of these conflicting notices. “[I]t is well established that, unless

a manifest injustice would result, a claim not articulated to the district court issubject

to forfeit on appeal.” Roberts v. Apfel, 222 F.3d 466, 470 (8th Cir. 2000). Because

manifest injustice would not otherwise result, we decline to consider this argument

made for the first time on appeal.

-10-