Sambataro v. Colvin

Filing 21

OPINION AND ORDER. Plaintiff's motion is GRANTED, defendant's motion is DENIED, and this case is remanded to the Commissioner for further proceedings. On remand, the ALJ shall further develop the administrative record as to plaintiff's work credits under INPDAP, apply the correct standard under the Agreement, and issue a new decision consistent with this Opinion & Order. In doing so, the ALJ shall obtain a new "IT/USA 3 bis" form from INPS, along with any other evidence it deems appropriate. The Clerk of Court is directed to terminate the motions at ECF Nos. 15 and 17, to terminate this action, and to remand this action to the Commissioner for further proceedings consistent with this Opinion & Order. re: 15 MOTION for Judgment on the Pleadings filed by Nancy J. Sambataro, 17 MOTION for Judgment on the Pleadings filed by Carolyn W. Colvin. (Signed by Judge Katherine B. Forrest on 4/6/2015). Copies Sent By Chambers. (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------------------X
NANCY J. SAMBATARO,
:
:
Plaintiff,
:
:
-v:
:
COMMISSIONER OF SOCIAL SECURITY,
:
:
Defendant.
:
---------------------------------------------------------------------- X
KATHERINE B. FORREST, District Judge:

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: April 6, 2015

13-cv-8953 (KBF)
OPINION & ORDER

Pro se plaintiff Nancy J. Sambataro (“Sambataro” or “plaintiff”) seeks
reversal of the decision by the Commissioner of Social Security (the “Commissioner”
or “defendant”) finding that she was not eligible for retirement insurance benefits
(“retirement benefits” or “old-age benefits”) under Title II of the Social Security Act
(the “Act”). (Tr. 12-17.) This case turns on whether the totalization agreement
between the United States and Italy—which generally allows claimants to combine
work credits accumulated in either country for purposes of establishing eligibility
for retirement benefits—entitles plaintiff to credit for over two decades of work in
Italy. Plaintiff argues that the totalization agreement requires the Social Security
Administration (“SSA”) to recognize all of her Italian work credits. Defendant
argues that the SSA properly did not recognize most of plaintiff’s Italian credits
because those credits were not accrued under an agency recognized by the
totalization agreement and the implementing protocol.

For the reasons set forth below, plaintiff’s motion is GRANTED, defendant’s
motion is DENIED, and this action is remanded to the Commissioner for further
proceedings.
I.

BACKGROUND
Plaintiff was born in 1941. (Tr. 22.) After working in the United States for

several years (see Tr. 16-17), plaintiff moved to Italy, where she worked between
1971 and 2001 (see Compl. ¶ 8). While working in Italy, plaintiff accrued 34 weeks
of work credits under the agency Istituto Nazionale della Previdenza Sociale
(“INPS”). (See Tr. 27.) Plaintiff accrued the rest of her credits under the agency
Istituto Nazionale di Previdenza per i Dipendenti dell Amministrazione Pubblica
(“INPDAP”). (See Tr. 21, 138-39.) According to a letter from the director of
INPDAP, plaintiff had been granted an Italian pension commencing on June 1,
2001 based on 26 years and 4 months of work credits. (Tr. 135-36.)
Plaintiff has been seeking U.S. retirement benefits for over a decade: she filed
her first application with the SSA in May 2004 and several thereafter.1 (See Tr. 1213.) In the course of reviewing plaintiff’s applications, the SSA received “IT/USA 3
bis” forms from INPS indicating that plaintiff had 34 weeks of Italian coverage. (Tr.
27, 232.) In addition, plaintiff submitted work documents from INPDAP, indicating
that she had completed 25 years, 8 months, and 4 days of service under INPDAP;

1

Plaintiff’s May 2004 application is not at issue on this appeal. (Tr. 12.)

The full procedural history of this matter as it unfolded before the SSA is set forth in the
November 17, 2011 decision by Administrative Law Judge (“ALJ”) David Nisnewitz. (See Tr. 12-14.)
The Court does not recite the full procedural history in this Opinion & Order.

2

income information for the years 1975 through 2001, excluding 1978, 1988, 1995,
and 1997; and a “Request for Correction of Earnings Record” form reporting a total
of 24 years and 6 months of work activity.2 (See Tr. 13, 44-45, 46, 49-70, 138-39.)
Finally, the SSA translated an Italian document indicating that plaintiff had a total
of 26 years, 3 months, and 29 days of work activity. (Tr. 90-93.)
After several denials from the SSA (see Tr. 28-30, 31-33, 106, 111-13),
plaintiff requested an on-the-record decision by an ALJ. (Tr. 132.) On November
17, 2011, ALJ David Nisnewitz issued a decision finding that plaintiff had not
established eligibility for retirement benefits. (Tr. 12-17.) The ALJ determined
that plaintiff had earned 20 quarters of coverage for her work in the United States3
and three quarters of coverage for her work in Italy, for a total of 23 credits—which
fell below the 40 credits required for “fully insured” status. (Tr. 16-17.) In making
this calculation, the ALJ credited plaintiff’s 34 weeks of work under INPS, but did
not credit her work under INPDAP:
Although the claimant indicated that her major coverage in Italy was
under the Istituto Nazionale di Previdenza per i Dipendenti dell
Amministrazione Pubblica (INPDAP), and that this agency had gained
equalization with INPS beginning in 1995 and should be recognized
under the Totalization Agreement between the United States and
Italy, it is not listed among the four agencies identified in the
Agreement and is not currently recognized by Social Security as an
agency which falls within the U.S.-Italy Totalization Agreement. To
date, there are no amendments to the article identifying the four
Italian agencies responsible for uniform policies and procedures.
Under the SSA’s regulations, claimants are responsible for obtaining and submitting evidence of
their eligibility for benefits. See 20 C.F.R. §§ 404.1926(a), 404.704.
2

Plaintiff does not dispute that her U.S. work credits were computed correctly. (See Amended
Memorandum of Law in Support of Plaintiff’s Motion for a Judgment on the Pleadings (“Pl.’s Mem.”)
at 1, ECF No. 16.)
3

3

(Tr. 16.)
On December 6, 2011, after the ALJ issued his decision, the Italian
Parliament issued a decree dissolving INPDAP and transferring its functions to
INPS. (See Pl.’s Mem. at 4 & Ex. J.) Plaintiff submitted this information to the
Appeals Council, which made it part of the record. (Tr. 7, 248-56.)
On October 18, 2013, the Appeals Council denied plaintiff’s request for review
of the ALJ’s decision. (Tr. 4-7.) The Appeals Council rejected plaintiff’s argument
that her INPDAP work credits should be counted because INPDAP’s functions are
now overseen by INPS:
We thoroughly considered your argument your INDAP [sic] work
credits should be counted per the totalization agreement because the
institution, INDAP [sic], is now overseen by INPS. The social security
scheme formerly under INPDAP has not been encompassed within the
material scope of the U.S.-Italian Agreement. The two schemes are
separate even though they are being managed by one Social Security
Institution, INPS.
(Tr. 5.)
On December 18, 2013, plaintiff filed this action seeking judicial review of the
ALJ’s decision. (ECF No. 1.) On September 12, 2014, the parties filed crossmotions for judgment on the pleadings. (ECF Nos. 15, 17.) These motions became
fully briefed on October 20, 2014.
For the reasons set forth below, plaintiff’s motion is GRANTED, defendant’s
motion is DENIED, and this action is remanded to the Commissioner for further
proceedings.

4

II.

APPLICABLE LEGAL PRINCIPLES
A.

Entitlement to Retirement Insurance Benefits

The Social Security Act provides for the payment of retirement benefits to an
individual who (1) is fully insured; (2) has attained age 62; and (3) has filed an
application for benefits.4 42 U.S.C. § 402(a). Under the Act, any individual who has
at least 40 work credits, or “quarters of coverage,” is fully insured.5 Id. § 414(a).
The Act allows the U.S. President to enter into totalization agreements with
foreign countries. 42 U.S.C. § 433(a). Totalization agreements enable claimants
who have at least six U.S. quarters of coverage to combine quarters of coverage
accrued in the United States with those accrued abroad in order to meet the “fully
insured” requirement. See id. § 433(c)(1)(A). The Act provides that the
Commissioner “shall make rules and regulations and establish procedures which
are reasonable and necessary to implement and administer” totalization
agreements. Id. § 433(d).
On May 23, 1973, the United States entered into a totalization agreement
with Italy. See Agreement Between the United States of America and the Italian
Republic on the Matter of Social Security, U.S.-It., May 23, 1973, 29 U.S.T. 4263

4

There is no dispute that the second and third requirements are met in this case.

5 The terms “quarter” and “calendar quarter” mean a period of three calendar months ending March
31, June 30, September 30, or December 31. Id. § 413(a)(1). To be credited with a “quarter of
coverage,” an individual must earn a certain amount of money in wages and/or self-employment
income. That amount varies depending on the calendar year. For years before 1978, the individual
must earn at least $50 in wages or $100 in self-employment income. Id. § 413(a)(2)(A)(i). For the
year 1978, the individual must earn $250 in wages and self-employment income. Id. § 413(d)(1). For
years after 1978, the amount of wages and self-employment income an individual must earn to be
credited with a quarter of coverage is determined by the Commissioner and published in the Federal
Register. Id. § 413(d)(2).

5

(the “Agreement”). On November 22, 1977, the two countries signed an
administrative protocol for the Agreement. See Administrative Protocol for the
Implementation of the Agreement on Social Security between the United States of
America and the Italian Republic Signed at Washington, D.C. on May 23, 1973,
U.S.-It., Nov. 22, 1977, 29 U.S.T. 4263 (the “Protocol”). The Agreement and the
Protocol went into effect on November 1, 1978. They were amended on April 17,
1984, effective January 1, 1986. See Supplementary Agreement Between the
United States of America and the Italian Republic on the Matter of Social Security,
U.S.-It., Apr. 17, 1984, T.I.A.S. No. 11173.6
Eligibility for benefits under the Agreement is determined by reference to the
“laws” of the United States and Italy. See Agreement Art. 3.1 (“The present
Agreement shall apply to workers who have periods of coverage under the laws, and
to their family members or survivors.”). Under Article 8 of the Agreement,
If the laws of one State require completion of periods of coverage as a
prerequisite for the acquisition, retention, or recovery of the right to
benefits, the agency which applies such laws shall take into
consideration, for such purpose, insofar as necessary, the periods of
coverage completed under the laws of the other State, as if these were
periods of coverage completed under the laws of the first State. Such
agency shall take into consideration all the periods of coverage
required to ensure the right to the fullest benefits provided for by the
laws which it applies.
Agreement Art. 8.2.

6 The Agreement and the Protocol are available on the SSA’s website at
http://www.ssa.gov/international/Agreement_Texts/italy.html.

6

The term “agency” is defined as “for each Contracting State any agency, body
or authority entrusted with the administration of an insurance system, under the
laws specified in Article 2 of this Agreement.” Id. Art. 1(e).
The term “laws” is defined as, “in the case of the Italian Republic, the
legislation on compulsory general insurance for old-age, disability and survivors, as
well as legislation providing benefits which are substitutes for benefits provided by
said compulsory general insurance.” Id. Art. 2.1(a); see also id. Art 1(c). In
addition, the Agreement applies to Italian “legislation concerning other social
security systems for similar cases which will be indicated by the competent
authorities of the Italian Republic.” Id. Art. 2.2. Finally, the Agreement applies “to
future laws amending or supplementing the laws specified in this article.” Id. Art
2.3.
The Agreement provides that “[t]he competent authorities and agencies of the
two Contracting States shall assist each other in applying the present Agreement as
if they were applying their respective laws.” Id. Art. 13. Further, “[t]he competent
authorities of the two Contracting States shall by mutual agreement establish such
administrative procedures as may be required to implement [the] Agreement and
each competent authority shall designate one coordinating agency or organization to
facilitate the application of this Agreement.” Id. Art. 14.1.
The Protocol incorporates by reference the definitions set forth in the
Agreement. See Protocol Art. 1.4. Article 2 of the Protocol—entitled “Agencies

7

Responsible for Implementation”—lists “[t]he agencies responsible for applying this
Protocol”:
(a) For the United States of America:
The Social Security Administration;
(b) For the Italian Republic:
- I.N.P.S. (Istituto Nazionale della Previdenza Sociale), General
Directorate, Rome, for matters concerning disability, old-age and
survivors insurance of employees, farmers, agricultural workers and
sharecroppers, artisans, and businessmen;
- E.N.P.A.L.S. (Ente Nazionale di Previdenza e Assistenza per i
Lavoratori dello Spettacolo), General Directorate, Rome, concerning
disability, old-age and survivors insurance for workers in the
entertainment business;
- I.N.P.D.A.I. (Istituto Nazionale di Previdenza per i Dirigenti di
Aziende Industriali), General Directorate, Rome, concerning disability,
old-age and survivors insurance for managerial personnel in industry;
- I.N.P.G.I. (Istituto Nazionale di Previdenza per i Giornalisti Italiani),
General Directorate, Rome, concerning disability, old-age and
survivors insurance for professional journalists.
Id. Art. 2.1. The Protocol further lists the SSA (for the United States) and INPS (for
Italy) as the “coordinating agencies designated under Article 14.1 of the Agreement
to facilitate its application.” Id. Art. 2.2. In carrying out their responsibilities, the
coordinating agencies
shall be responsible for the development of uniform policies and
procedures and their uniform implementation by the Agencies in their
respective States; for providing a channel of communication between
the Agencies of one State and the Agencies of the other State; for
determining which Agency is competent for the determination of a
particular claim; and for facilitating the resolution of any issues that
arise between the Agencies of the two States that cannot be resolved
directly.
8

Id. Art. 2.3.
An annotation to the Agreement7 further explains the role of INPS:
Italy has one agency, the I.N.P.S., which administers its principal
social security system, and a number of smaller agencies which
administer the comparable systems for specialized groups of workers.
The definition is intended to assure that the U.S. will be required to
deal directly with only the agency administering the principal system
(as the Italians would be required to deal with only one U.S. agency)
and have that agency act for the smaller agencies.
Annotation to Agreement Art. 1(e).
As to the procedure for applying for benefits, the Protocol provides:
Claimants may avail themselves of their right to benefits under
Articles 8 to 12 of the Agreement by filing an application with an
Agency of either State, according to the rules of that Agency. Such
application must specifically express intent to claim benefits from the
Agency of the other State. An application with a Consulate of the
United States of America located in the Italian Republic shall be
deemed to be filed with the Agency of the United States of America;
however, the Consulate of the United States of America with which the
application was filed shall transmit, without delay, a copy thereof to
the Italian Agency.
Protocol Art. 4.1.
Additional guidelines regarding the Agreement are set forth in the Program
Operations Manual System (“POMS”), the SSA’s internal procedural guidelines.8

The online text of the Agreement and the Protocol features annotations explaining each provision of
these documents.
7

8 The POMS are available at https://secure.ssa.gov/apps10/. “Because these guidelines represent the
Commissioner’s interpretation of the statutory mandate, they deserve substantial deference, and will
not be disturbed as long as they are reasonable and consistent with the statute.” Bubnis v. Apfel,
150 F.3d 177, 181 (2d Cir. 1998) (citations omitted); see also Binder & Binder PC v. Barnhart, 481
F.3d 141, 151 (2d Cir. 2007) (“A POMS entry might arguably be evidence of the SSA’s public
construction of its authorizing statute or the Commissioner’s own regulations, a construction that, if
consistent with that statute, would be entitled to some level of deference.” (citations omitted)).

9

The POMS explain that “[i]n general, Italian Social Security covers all people who
work in Italy. A general system administered by Istituto Nazionale della
Previdenza Sociale (INPS) covers most workers in the private sector. Several
special systems cover workers in specific occupational categories.” POMS at GN
1705.015. The POMS provide that the “SSA will credit one U.S. quarter of coverage
for every 13 weeks of Italian coverage in a calendar year. (Italian coverage is
measured in weeks.)” Id. at GN 1705.120. The listed exceptions are (1) “any Italian
coverage credited for periods before 1937,” (2) “any week in a calendar quarter that
is already credited as a U.S. quarter of coverage,” or (3) “more than 4 quarters of
coverage for any calendar year.” Id.
The POMS set forth the process by which the SSA obtains evidence of
claimants’ Italian work credits. This process entails obtaining a certification form
“IT/USA 3 bis” from INPS. See id. at GN 1706.010.9 The POMS provide that:
9

The POMS provide the following “guidelines for evaluating certifications”:
The Italian coverage certification form IT/USA 3 bis was designed as a part of an Italian
liaison form (IT/USA 3 or IT/USA 5). The liaison form was signed and/or sealed by an INPS
official as a means of certifying the correctness and authenticity of its contents including the
earnings certification. INPS plans to eliminate the forms IT/USA 3 and IT/USA 5 and will
begin sending form IT/USA 3 bis with the transmittal request form IT/ USA 2 which does not
have a place for INPS to certify the correctness of the information shown. Also, INPS
occasionally sends just the form IT/USA 3 bis with no covering liaison form. The Italian
coverage certification should be accepted as correct if it is:
1.

An original, carbon copy or photocopy of the IT/USA 3 bis attached to an Italian
liaison form (IT/USA 3 or IT/USA 5), transmittal/request form (IT/USA 2) or letter
from INPS (stating that an earnings certification is attached).

2.

An original, carbon copy or photocopy of the IT/USA 3 bis sent without a covering
letter or liaison form but bearing an original signature, stamp or seal from an INPS
official.

Refer any case which cannot be accepted using the above criteria to TOAB for further
evaluation.
Id.; see also id. at GN 1706.300 (“Italy has agreed to begin using only one transmittal/request form,
the IT/ USA 2, to exchange claims and earnings information. However, until this procedure is

10

All types of coverage certified by INPS are to be accepted at face value
as being creditable; no attempt should be made to question whether a
particular type of work was creditable at a particular time under the
Italian system. Also, it is not necessary to examine INPS’ certification
to determine if all periods of coverage alleged on the application were
included in the certification.
Id. at GN 1706.020; see also at 1706.105, 1706.205.
B.

Judgment on the Pleadings

“After the pleadings are closed—but early enough not to delay trial—a party
may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “The same
standard applicable to Fed. R. Civ. P. 12(b)(6) motions to dismiss applies to Fed. R.
Civ. P. 12(c) motions for judgment on the pleadings.” Bank of N.Y. v. First
Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010) (citation omitted). Therefore,
“[t]o survive a Rule 12(c) motion, the complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Id.
(citation and internal quotation marks omitted).
The Court “liberally construe[s] pleadings and briefs submitted by pro se
litigants, reading such submissions to raise the strongest arguments they suggest.”
Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (citations and internal
quotation marks omitted).
C.

Review of the ALJ’s Judgment

The Commissioner and ALJ’s decisions are subject to limited judicial review.
The Court may only consider whether the ALJ has applied the correct legal

adopted by all INPS offices, OIO may continue to receive the Italian liaison forms IT/USA 3 and
IT/USA 5.”).

11

standard and whether his findings of fact are supported by substantial evidence.
When these two conditions are met, the Commissioner’s decision is final. 42 U.S.C.
§ 405(g); Burgess v. Astrue, 537 F.3d 117, 127-28 (2d Cir. 2008); Veino v. Barnhart,
312 F.3d 578, 586 (2d Cir. 2002); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999);
Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). Substantial evidence means
“more than a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Pratts v. Chater, 94 F.3d 34, 37
(2d Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)) (internal
quotation marks omitted).
“The ALJ has an affirmative duty to fully and fairly develop an
administrative record.” Ventimiglia v. Astrue, No. 10 Civ. 3148, 2011 WL 4483654,
at *5 (S.D.N.Y. Sept. 28, 2011) (citing Echevarria v. Sec’y of Health and Human
Servs., 685 F.2d 751, 755 (2d Cir. 1982)). The duty to develop the record “arises
from the essentially nonadversarial nature of a benefits proceeding.” Id. (citing
Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982)). The reviewing court must
make a searching investigation of the administrative record to ensure that the ALJ
protected the claimant’s rights. Id. (citing Robinson v. Sec’y of Health & Human
Servs., 733 F.2d 255, 258 (2d Cir. 1984)).
Because the Court may not properly affirm an administrative action on
grounds different from those considered by the SSA, if there are gaps in the
administrative record or the ALJ has applied an improper legal standard, the action
generally will be remanded for further development of the evidence. Rolon v.

12

Comm’r of Soc. Sec., 994 F. Supp. 2d 496, 503 (S.D.N.Y. 2014). In its deliberations,
the Court should bear in mind that the Act is “a remedial statute to be broadly
construed and liberally applied.” Dousewicz v. Harris, 646 F.2d 771, 773 (2d Cir.
1981) (citations omitted).
III.

DISCUSSION
The ALJ determined that plaintiff was ineligible for U.S. retirement benefits

because she failed to accrue the required 40 quarters of coverage. In particular, the
ALJ found that plaintiff had earned only three Italian quarters of coverage,
notwithstanding documentary evidence that plaintiff had worked for over two
decades under INPDAP. The ALJ did not recognize plaintiff’s credits under
INPDAP because that agency is not among the four agencies designated as
responsible for applying the Protocol. (See Tr. 16.) Plaintiff argues that the ALJ
erred because the Agreement’s plain language mandates recognition of credits
accrued under any retirement scheme established by Italian law. The Court
agrees.10
“The interpretation of a treaty, like the interpretation of a statute, begins
with its text.” Medellin v. Texas, 552 U.S. 491, 506-07 (2008) (citing Air France v.
Saks, 470 U.S. 392, 396-97 (1985)); see also Sanchez-Llamas v. Oregon, 548 U.S.
331, 346 (2006) (“An international agreement is to be interpreted in good faith in

10 Because the Court finds that the ALJ’s interpretation is contrary to the Agreement’s plain
language, it need not address plaintiff’s further argument that, in any event, INPDAP has been
dissolved and its functions are now overseen by INPS, mandating recognition of her work credits
even under the ALJ’s interpretation. Evidence of the dissolution has been made part of the record in
this case (Tr. 7), and the ALJ shall consider it, along with the other evidence, on remand.

13

accordance with the ordinary meaning to be given to its terms in their context and
in the light of its object and purpose.” (quoting 1 Restatement (Third) of Foreign
Relations Law of the United States § 325(1) (1986)) (internal quotation marks
omitted)). Here, the plain text of the Agreement requires the SSA to consider “the
periods of coverage completed under the laws of” Italy in determining whether a
claimant like plaintiff is eligible for retirement benefits. Agreement Art. 8.2. The
term “laws” is defined very broadly: The Agreement applies to Italian “legislation
on compulsory general insurance for old-age, disability and survivors, as well as
legislation providing benefits which are substitutes for benefits provided by said
compulsory general insurance.” Id. Art. 2.1(a); see also id. Art 1(c). In addition, the
Agreement applies to Italian “legislation concerning other social security systems
for similar cases which will be indicated by the competent authorities of the Italian
Republic.” Id. Art. 2.2. This provision “makes it possible for the Agreement to
apply to certain special systems in Italy, such as those for employees of public
utilities which are not generally considered to be a part of the general system.”
Annotation to Agreement Art. 2.2. Finally, the Agreement applies “to future laws
amending or supplementing the laws specified in this article.” Id. Art. 2.3. In sum,
the SSA must recognize any work credits accrued under a social security scheme
established by Italian law. Notably, the Agreement (in contrast to the Protocol)
does not single out any particular Italian agencies.
The Agreement’s plain language is consistent with its purpose—to ensure
that claimants receive “the fullest benefits provided for by the laws.” Agreement

14

Art. 8.2; see also 20 C.F.R. § 404.1901 (“Where necessary to accomplish the
purposes of totalization,” the SSA administers totalization agreements, “as
appropriate and within the limits of the law, to accommodate the widely diverse
characteristics of foreign social security systems.”). Notably, plaintiff had been
granted an Italian pension based on 26 years and 4 months of work credits,
suggesting that her INPDAP credits were “completed under the laws of” Italy. (See
Tr. 135-36.)
The Protocol, on which the ALJ relied, does not redefine the Agreement’s
substantive scope—it simply establishes administrative procedures implementing
the Agreement’s provisions. See Agreement Art. 14.1 (“The competent authorities
of the two Contracting States shall by mutual agreement establish such
administrative procedures as may be required to implement [the] Agreement.”).
Article 2 of the Protocol—entitled “Agencies Responsible for Implementation”—lists
four agencies “responsible for applying this Protocol.” Protocol Art. 2.1. Under the
ordinary meaning of the words “implementation” and “applying,” these four
agencies are charged with carrying out the Agreement—that is, performing various
administrative tasks in connection with benefits claims. See Merriam-Webster,
http://www.merriam-webster.com/dictionary/apply (last visited Apr. 6, 2015)
(defining “apply” as, inter alia, “put into operation or effect”); Merriam-Webster,
http://www.merriam-webster.com/dictionary/implement (last visited Apr. 6, 2015)
(defining “implement” as, inter alia, “carry out, accomplish; especially: to give
practical effect to and ensure of actual fulfillment by concrete measures”). The

15

annotation to Article 2 of the Protocol confirms this, explaining that the four
agencies are “those agencies which will actually deal with claims.” Annotation to
Protocol Art. 2.
In denying plaintiff’s applications, the ALJ interpreted Article 2 of the
Protocol to restrict the SSA to considering only Italian credits accrued under one of
the four listed agencies.11 This interpretation excludes many claimants who would
otherwise qualify for totalization benefits. While the Italian Social Security system
generally “covers all people who work in Italy,” POMS at GN 1705.015, the four
agencies listed in the Protocol cover only certain categories of employees. See id.
(INPS “covers most workers in the private sector”); Protocol Art. 2.1 (the remaining
three agencies cover workers in the entertainment business, managerial personnel
in industry, and professional journalists). In particular, few, if any, public sector
employees accrue their credits under one of these four agencies.12
The ALJ did not set forth any bases for his restrictive interpretation, and did
not discuss any of the provisions of the Agreement in his decision. In particular, the
ALJ did not reconcile his denial with the fact that Italy had recognized all of
plaintiff’s work credits in granting her a pension. While the “Executive Branch’s
interpretation of a treaty is entitled to great weight,” Swarna v. Al-Awadi, 622 F.3d
123, 133 (2d Cir. 2010) (citation and internal quotation marks omitted), the ALJ’s

The ALJ’s decision appears to rely exclusively on the fact that INPDAP is not among the four
agencies listed as responsible for applying the Protocol. The ALJ did not provide any further basis
for his statement that INPDAP “is not currently recognized by Social Security as an agency which
falls within the U.S.-Italy Totalization Agreement.” (Tr. 16.)
11

12 Plaintiff alleges—and defendant does not dispute—that INPDAP provides coverage to public
employees.

16

interpretation here must be rejected as contrary to the plain meaning and purpose
of the Agreement and the Protocol, as discussed above. See Sumitomo Shoji Am.,
Inc. v. Avagliano, 457 U.S. 176, 180 (1982) (“The clear import of treaty language
controls unless ‘application of the words of the treaty according to their obvious
meaning effects a result inconsistent with the intent or expectations of its
signatories.’” (quoting Maximov v. United States, 373 U.S. 49, 54 (1963))). The
Agreement is clear that the SSA must recognize all credits completed “under the
laws” of Italy, and there is no evidence of any intent to exclude particular swaths of
the workforce from coverage. (To the contrary, the annotation to Article 2.2 of the
Agreement suggests that the Agreement applies to employees of public utilities—
which do not appear to be covered by any of the four agencies listed in the Protocol.)
The Court recognizes that the Agreement and the Protocol contemplate that
the United States will communicate only with INPS—as Italy’s “coordinating
agency”—in processing claims for totalization benefits. See Protocol Art. 2.3 (the
coordinating agencies “shall be responsible . . . for providing a channel of
communication between the Agencies of one State and the Agencies of the other
State”); Annotation to Agreement Art. 1(e) (the definition of “agency” “is intended to
assure that the U.S. will be required to deal directly with only the agency
administering the principal system”—INPS); POMS at GN 1706.010 (describing a
process by which the United States obtains a “IT/USA 3 bis” form from INPS).
Here, the “IT/USA 3 bis” forms that the SSA obtained from INPS indicate that
plaintiff has only 34 weeks of Italian credits. However, the ALJ cannot, consistent

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with the Agreement and his duty to fully and fairly develop the record, rely on one
form from INPS and ignore official records indicating that plaintiff had accrued
work credits under a different agency.13 The ALJ was obligated to investigate the
discrepancy and ascertain why INPDAP did not certify plaintiff’s INPDAP credits.
IV.

CONCLUSION
Accordingly, plaintiff’s motion is GRANTED, defendant’s motion is DENIED,

and this case is remanded to the Commissioner for further proceedings. On
remand, the ALJ shall further develop the administrative record as to plaintiff’s
work credits under INPDAP, apply the correct standard under the Agreement, and
issue a new decision consistent with this Opinion & Order. In doing so, the ALJ
shall obtain a new “IT/USA 3 bis” form from INPS,14 along with any other evidence
it deems appropriate.15

13 The Court is mindful that POMS provide that “it is not necessary to examine INPS’ certification to
determine if all periods of coverage alleged on the application were included in the certification.”
POMS at GN 1706.020. However, the Court does not interpret this provision to mean that the SSA
is not obligated to develop the record when presented with conflicting documentary evidence of a
claimant’s work credits.

The “IT/USA 3 bis” forms that the ALJ considered were issued prior to the Italian decree
dissolving INPDAP and transferring its functions to INPS. It is entirely possible, therefore, that a
new form would include plaintiff’s INPDAP credits.
14

15 Among the issues that may or may not arise on remand is whether plaintiff’s receipt of an Italian
pension affects her eligibility for U.S. retirement benefits.

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The Clerk of Court is directed to terminate the motions at ECF Nos. 15 and
17, to terminate this action, and to remand this action to the Commissioner for
further proceedings consistent with this Opinion & Order.
Dated:

New York, New York
April 6, 2015

______________________________________
KATHERINE B. FORREST
United States District Judge
CC:

Nancy J. Sambataro
8 Avondale Rd.,
Yonkers, NY 10710

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