Kamyk v. Commissioner of the Social Security Administration

Filing 26

ORDER: Plaintiff Kazimiera Kamyk ("Plaintiff") appeals the Commissioner of Social Security's decision that the Windfall Elimination Provision ("WEP") was properly applied to her Social Security retirement benefits. A motion f or summary judgment 23 has been filed on behalf of Defendant Carolyn W. Colvin, Acting Commissioner of Social Security ("Commissioner"). Because Plaintiff is proceeding pro se, the Court will construe plaintiffs "answer" in supp ort of reversing the decision of the Commissioner as a motion. For the reasons outlined below, we grant the Commissioner's motion [dkt. 16] and deny the Plaintiff's motion [dkt. 24]. The Administrative Law Judges decision is affirmed. [For further details see order] - Signed by the Honorable Susan E. Cox on 9/14/2016. Mailed notice (np, )

IN THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF ILLINOIS

KAZIMIERA KAMYK,

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Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

Defendant.

No. 15 C 4229

Magistrate Judge Susan E. Cox

ORDER
Plaintiff Kazimiera Kamyk (“Plaintiff”) appeals the Commissioner of Social Security’s
decision that the Windfall Elimination Provision (“WEP”) was properly applied to her Social
Security retirement benefits. A motion for summary judgment [23] has been filed on behalf of
Defendant Carolyn W. Colvin, Acting Commissioner of Social Security (“Commissioner”).
Because Plaintiff is proceeding pro se, the Court will construe plaintiff’s “answer” in support of
reversing the decision of the Commissioner as a motion. For the reasons outlined below, we grant
the Commissioner’s motion [dkt. 16] and deny the Plaintiff’s motion [dkt. 24]. The
Administrative Law Judge’s decision is affirmed.
STATEMENT
Plaintiff appeals the Commissioner of Social Security’s decision that the Windfall
Elimination Provision (“WEP”) was properly applied to her Social Security retirement benefits.
Plaintiff is a Polish citizen and a United States resident. (Dkt. 1 at ¶ 1.) Plaintiff was born on
October 24, 1943. (R. at 24.) From 1965 until 1991, Plaintiff worked in Poland. (R. at 76.)

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Plaintiff claims that she worked at a “government firm” in Poland, and paid income taxes to the
Polish government. (R. at 76.) Plaintiff does not claim that she paid social security taxes on this
income, and there is no evidence in the record to suggest that she did. Plaintiff immigrated to the
United States in 1992, and worked in the United States from 1992 until 2010. 1 (R. at 49, 77.)
Plaintiff did pay social security taxes on the earnings she collected while working in the United
States. (R. at 77.)
Plaintiff applied for Social Security retirement benefits on April 27, 2011. (R. at 15.) At
the time of Plaintiff’s application, she was receiving approximately $400 per month from a
pension earned during her time working in Poland. 2 (R. at 25-28, 92.) Plaintiff’s claim was
granted, but the Social Security Administration determined that her benefits would be reduced
because she received “a pension based on work which is not covered by Social Security.” (R. at
29.) As a result, Plaintiff would receive $148.00 per month, in addition to her Polish pension.
Plaintiff filed a request for reconsideration of the reduction of her benefits, and her request for
reconsideration was denied. (R. at 33-34, 43-52.) Plaintiff then requested a hearing before an
Administrative Law Judge (“ALJ”), which was held on July 29, 2013. (R. at 80-95.) The ALJ
found that the Social Security Administration had appropriately reduced the Plaintiff’s benefits
because the WEP applied to her retirement benefits. (R. at 13-14.) Plaintiff filed an appeal to
the Appeals Council, and the Appeals Council denied Plaintiff’s request for review, making the
ALJ’s decision final and appealable. (R. at 7.)
DISCUSSION
I.

STANDARD OF REVIEW

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Plaintiff contends that she worked until 2012, but the Appeals Council found that she only had covered income
through 2010. This issue does not affect the ultimate issue of whether the WEP applies to Plaintiff.
2
Plaintiff claims that she has been receiving her Polish pension benefit since 2003, which would track with her
retirement age under the Polish pension system. See POMS GN 01751.010(B)(2),
https://secure.ssa.gov/apps10/poms.nsf/lnx/0201751010.
2

The ALJ’s decision must be upheld if it follows the administrative procedure for
substantial evidence, and if it is free of legal error. 20 C.F.R. §§ 404.1520(a) and 416.920(a); 42

determining whether the plaintiff is disabled as set forth in the Act, if it is supported by

U.S.C. § 405(g). Substantial evidence is “relevant evidence that a reasonable mind might accept

as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28
L.Ed.2d 842 (1971).

Although we review the ALJ’s decision deferentially, she must

nevertheless build a “logical bridge” between the evidence and her conclusion. Moore v. Colvin,
743 F.3d 1118, 1121 (7th Cir. 2014). A “minimal[] articulat[ion] of her justification” is enough.
Berger v. Astrue, 516 F.3d 539, 545 (7th Cir. 2008).
II.

The WEP Applies to Plaintiff’s Social Security Benefits.

“The Social Security Amendments of 1983 (P.L. 98-21) includes a provision that
eliminates ‘windfall’ Social Security benefits for retired and disabled workers receiving pensions
from employment not covered by Social Security,” which is also known as the WEP. Social
Security Administration Program Operations Manual System (“POMS”) RS 00606.360,
https://secure.ssa.gov/apps10/poms.nsf/lnx/0300605360.

“Generally, SSA assumes that work

which was covered under a foreign social security system was not covered under U.S. Social
Security.” POMS GN 00307.290(C)(1), https://secure.ssa.gov/apps10/poms.nsf/lnx/0200307290.
“Essentially, the provision seeks to preserve the progressive nature of the Social Security system
by ensuring that the formula the agency uses to calculate benefits does not advantage highincome workers who split their careers between covered and non-covered employment over
those who paid Social Security taxes for their entire careers.” Hawrelak v. Colvin, -- Fed. Appx.
--, 2016 WL 3471742, at *1 (7th Cir. June 24, 2016.) “Although most claimants affected by the
provision are former government employees who spent part of their careers in the private sector,

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the provision also applies to claimants who receive benefits from foreign government based on
their work.”

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Id. The WEP applies to the Plaintiff; despite having over 40 years of income,

only 18 years of that income came from covered employment for which Plaintiff paid social
security taxes. If the WEP were not applied, Plaintiff’s benefits calculation would take into
account years she had earnings, but was not paying into the Social Security system, thereby
giving her a benefit amount that was not in line with the contributions she made to the Social
Security system.
However, there are exceptions to the WEP, including claimants who receive foreign
pensions. See POMS RS 00605.362, https://secure.ssa.gov/apps10/poms.nsf/lnx/0300605362.
One potentially applicable exception is for claimants who are receiving benefits as a result of a
“totalization agreement” between the United States and a foreign county.

See POMS RS

00605.386, https://secure.ssa.gov/apps10/poms.nsf/lnx/0300605386, see also, Hawrelak, 2016
WL 3471742, at *2 (citing 42 U.S.C. § 415(a)(7)(A)(ii)). “Totalization agreements provide for
the grant of retirement benefits to persons who split their careers among two or more countries
and thus lack sufficient periods of covered employment under each country’s retirement system
to qualify for benefits.” Hawrelak, 2016 WL 3471741, at *2. However, when a claimant
qualifies for retirement benefits under both the foreign pension system and the United States
Social Security system without totalization (i.e., they have sufficient periods of covered
employment under both systems independently), the benefits are not based on a totalization
agreement, and the exception to the WEP is not applicable. See id. (“As the ALJ properly found,
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Some types of foreign pensions are exempt from the WEP. POMS GN 01701.320,
https://secure.ssa.gov/apps10/poms.nsf/lnx/0201701320. However, the Plaintiff has provided no evidence that the
Polish pension system is the type exempt from the WEP, and the Court has not found any evidence to suggest that
this is the case. See POMS GN 01701.320(C), https://secure.ssa.gov/apps10/poms.nsf/lnx/0201701320; see also,
Social Security Administration, Totalization Agreement with Poland,
https://www.ssa.gov/international/Agreement_Pamphlets/polish.html (“If you qualify for Social Security benefits
from the United States and a Polish pension (either ZUS or KRUS) and you did not need the agreement to qualify
for the U.S. benefit, the amount of your U.S. benefit may be reduced. “)
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[plaintiff’s] two pensions are not based on a totalization agreement; his work history in both the
United States and Canada qualified him for benefits without totalization, so the agreement does
not apply to this case”).
The United States and Poland entered into a totalization agreement that came into effect
in 2009. Agreement Between the United States of America and the Republic of Poland on Social
Security, https://www.ssa.gov/international/Agreement_Texts/Poland.html. To qualify for her
Polish pension, Plaintiff must have 20 years of coverage and be 60 years of age. POMS GN
01751.010(B)(2), https://secure.ssa.gov/apps10/poms.nsf/lnx/0201751010.

Plaintiff claims to

have worked in Poland for over 20 years, and turned 60 in 2003; therefore, Plaintiff qualifies for
Polish pension benefits. In order to be “fully insured” for purposes of Social Security retirement
benefits in the United States, Plaintiff must have 40 “quarters of coverage.” See Social Security
Administration, Quarters of Coverage, https://www.ssa.gov/oact/COLA/QC.html. A review of
the record shows that Plaintiff has well over 40 quarters of coverage, and is fully insured for
purposes of Social Security retirement benefits. (R. at 49.) Thus, Plaintiff qualifies for pension
benefits in both countries without relying on the totalization agreement. Thus, the agreement
does not apply to her benefits, and Plaintiff is not exempt from the WEP on this basis. The
ALJ’s finding that the totalization agreement between the United States and Poland does not
prevent the WEP from applying to Plaintiff’s benefits was substantially justified and free of legal
error.
Plaintiff argues the totalization agreement between Poland and United States should
prevent the reduction of her benefits because it 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.” Agreement Between the United States of America and the

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Republic

of

Poland

on

Social

Security,

Part

https://www.ssa.gov/international/Agreement_Texts/Poland.html#part5.
receiving Polish pension benefits in 2003.

V,

Art.

Plaintiff

23,
began

The totalization agreement entered into force on

March 1, 2009, after Plaintiff began receiving her Polish pension benefits. Id. Therefore,
Plaintiff contends that her benefits should not be affected by the totalization agreement.
Plaintiff is incorrect for two reasons. First, Plaintiff does not have any “rights arising”
under the totalization agreement. That agreement, like all totalization agreements, is designed to
allow the United States to “use credits from the foreign country to help a person meet the
minimum

coverage

requirements

for

U.S.

benefits.”

POMS

GN

01701.100(A),

https://secure.ssa.gov/apps10/poms.nsf/lnx/0201701100. As noted above, Plaintiff does not need
totalization to help her meet the minimum coverage requirements in the United States, and,
therefore, the totalization agreement does not grant Plaintiff any rights vis-à-vis her United States
retirement benefits. Second, Plaintiff applied for United States Social Security benefits in 2011,
after the totalization agreement came into effect. As such, those benefits would be subject to the
totalization agreement, if it applied to Plaintiff. Meanwhile, Plaintiff continues to receive the full
amount of her Polish pension; that amount has not been affected at all. Thus, the benefits she
received before the totalization agreement remain untouched.
The only other exemption to the WEP that may apply is for claimants with over 30 years
of “substantial earnings under Social Security.”

Social Security Administration, Windfall

Elimination Provision, https://www.ssa.gov/pubs/EN-05-10045.pdf. Plaintiff’s appeal notes that
she has “worked 48 years in [her] life.” (Dkt. 1 at 4.) While it is true that Plaintiff has worked
for 48 years, the relevant question is whether Plaintiff have more than 30 years of “substantial
earnings” for purposes of her Social Security retirement benefits. “Substantial earnings” for

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every year since 1937 is set out in a table published by the Social Security Administration.
Social Security Administration, Windfall Elimination Provision, https://www.ssa.gov/pubs/EN05-10045.pdf. A review of the record shows that Plaintiff does not have over 30 years of
substantial earnings. (See R. at 49.) As such, she does not qualify for that exemption the WEP.
CONCLUSION
For the foregoing reasons, we grant the Commissioner’s motion [dkt. 16] and deny the
Plaintiff’s motion [dkt. 24]. The Administrative Law Judge’s decision is affirmed.

ENTER:
DATED: September 14 2016

______________________________
Susan E. Cox
United States Magistrate Judge

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