Kazimiera Kamyk v. Carolyn Colvin
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Frank H. Easterbrook, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Diane S. Sykes, Circuit Judge. [6862811-1]  [16-3647]
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 18, 2017 *
Decided August 18, 2017
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
Appeal from the United States District
Court for the Northern District of Illinois,
No. 15 C 4229
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Susan E. Cox,
Kazmiriera Kamyk, a Polish citizen and permanent resident of the United States,
appeals the district court’s judgment affirming a decision of the Commissioner of Social
Security to reduce her retirement benefits based on her receipt of a pension from
Poland. Because substantial evidence supports the Commissioner’s decision, we affirm.
We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
For 25 years Kamyk worked in a firm controlled by the Polish government, all
the while paying into the Polish pension system, Zakład Ubezpieczeń Społeczynych
(ZUS). In 1992 she immigrated to the United States, obtained work that year, and began
paying Social Security taxes. She turned 60 in 2003 and soon after started receiving a
retirement pension from ZUS based on her work in Poland.
Kamyk later applied for retirement benefits from the Social Security
Administration and reported her Polish pension. The agency granted her application
but cut her benefits roughly in half under the Social Security Act’s “windfall elimination
provision,” which reduces the benefits of individuals who receive a monthly pension
for work that did not require them to pay taxes under the Social Security Act.
See 42 U.S.C. § 415(a)(7); 20 C.F.R. § 404.213(a); Petersen v. Astrue, 633 F.3d 633, 634
(8th Cir. 2011); Stroup v. Barnhart, 327 F.3d 1258, 1259–60 (11th Cir. 2003). Through this
reduction Congress intended to eliminate a “windfall” in benefits that individuals with
untaxed pensions would receive if their benefits were calculated according to the
agency’s standard weighted formula, which advantages individuals with lower average
earnings and excludes from its definition of earnings any income from untaxed
employment. See Rudykoff v. Apfel, 193 F.3d 579, 580–81 (2d Cir. 1999); WILLIAMS R.
MORTON, CONG. RESEARCH SERV., 98-35, SOCIAL SECURITY: THE WINDFALL ELIMINATION
PROVISION (WEP) 1 (2016), https://www.fas.org/sgp/crs/misc/98-35.pdf.
Kamyk sought reconsideration, but the agency affirmed its initial decision.
At a hearing before an administrative law judge, Kamyk disputed the reduction
in her retirement benefits by pointing to a “totalization agreement” between Poland and
the United States. Totalization agreements provide for the grant of retirement benefits
to persons who split their careers between two countries and thus lack sufficient
periods of covered employment under each country’s retirement system to qualify for
benefits. See 42 U.S.C. § 433(c)(1)(A); Agr. on Soc. Sec., U.S.–Pol., April 2, 2008, T.I.A.S.
No. 09-301 (entered into force Mar. 1, 2009), available at https://www.ssa.gov/
international/Agreement_Texts/Poland.html; see also Totalization Agreements, SOC. SEC.
HANDBOOK, https://www.ssa.gov/OP_Home/handbook/handbook.01/handbook0107.html (last revised Aug. 8, 2011) (stating that individuals may combine their periods
of work in different countries in order to qualify for benefits). Based on the agreement,
Kamyk asserted that her benefits should not be reduced because she, unlike workers
who benefit from totalization, worked long enough in a job taxed by this country to
qualify for retirement benefits here.
The ALJ upheld the decision to reduce Kamyk’s retirement benefits. The ALJ
determined that her retirement benefits were subject to reduction because she had
earned a pension from work that was not taxed by this country’s social-security system,
and her benefits did not meet any statutory exemption.
The Appeals Council denied Kamyk’s request for review.
More than four months later, Kamyk sought judicial review based on a provision
of the totalization agreement that, she believes, prevents her retirement benefits from
being reduced. The provision states that “[d]eterminations concerning entitlement to
benefits which were made before the entry into force of this Agreement shall not affect
rights arising under it.” Agr. on Soc. Sec., U.S.–Pol., April 2, 2008, T.I.A.S. No. 09-301,
Part V, Art. 23. Kamyk said that she began receiving her Polish pension before the
totalization agreement entered into force, and so her pension should not affect her
rights under the agreement to retirement benefits in this country.
The district court affirmed the Commissioner’s decision. Kamyk had no “rights
arising” under the totalization agreement, the court explained, because she did not need
totalization to help her meet the minimum coverage requirements in the United States.
On appeal Kamyk maintains that the windfall reduction does not apply to her
because she worked long enough in the United States to qualify for full retirement
benefits here. 1 But as the ALJ observed, the windfall reduction applies to individuals
who receive monthly benefits from a foreign pension system based on earnings not
taxed by Social Security, see 42 U.S.C. §§ 410(a)(11),(a)(12), 415(a)(7); 20 C.F.R.
§ 404.213(a)(3); Soc. Sec. Admin. Program Operations Manual Sys. (POMS) GN
00307.290(C)(3), https://secure.ssa.gov/poms.nsf/lnx/0200307290, and Kamyk receives a
monthly pension from ZUS based on more than two decades’ work that, she concedes,
Social Security did not tax, see POMS GN 01751.020(B)(1), https://secure.ssa.gov/
poms.nsf/lnx/0201751020 (reporting that females in Poland born before 1949 must work
20 years to be eligible for ZUS).
We note that Kamyk did not seek judicial review until well beyond the 60-day
period for challenging the Council’s denial of review. See 42 U.S.C. § 405(g). But this
filing deadline is non-jurisdictional, Bowen v. City of New York, 476 U.S. 467, 478 (1986),
and the Commissioner waived its statute-of-limitations defense by not raising it in the
district court, Johnson v. Sullivan, 922 F.2d 346, 355 (7th Cir. 1991) (en banc).
Kamyk also continues to rely on the totalization agreement and asserts that her
Polish pension, because it predates the totalization agreement, cannot subject her
retirement benefits to reduction. But as the district court explained, the totalization
agreement does not apply to her. Her rights to retirement benefits arise not under the
agreement but under the Social Security Act, based on her work in this country alone.
See Hawrelak v. Colvin, 667 F. App’x 161, 163 (7th Cir. 2016), cert. denied, 137 S. Ct. 2194
(2017). Indeed, without totalization she is eligible for benefits from both countries. And
because she qualifies for benefits from Poland without totalization, her Polish pension
does not meet the statutory exemption in 42 U.S.C. § 415(a)(7)(A)(ii) for payments by a
social-security system of a foreign country based on a totalization agreement.
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