Kamyk v. Berryhill, 695 F. App'x 947

Background

Kamyk, a Polish citizen, worked ~25 years for a Polish government-controlled firm and paid into the Polish pension system (ZUS); she immigrated to the U.S. in 1992, worked and paid Social Security taxes, and later began receiving a ZUS pension after age 60.
She applied for U.S. Social Security retirement benefits and reported the Polish pension; SSA granted benefits but reduced them under the Windfall Elimination Provision (WEP) because her Polish pension was based on work not taxed by U.S. Social Security.
Kamyk sought reconsideration, received an adverse ALJ decision and Appeals Council denial, then sought judicial review in district court; the district court affirmed the Commissioner.
Kamyk argued the U.S.–Poland totalization agreement (entered into force Mar. 1, 2009) and a provision stating pre-agreement determinations shall not affect rights arising under the agreement prevented the WEP reduction because her Polish pension predated entry into force.
The ALJ and district court concluded Kamyk’s rights to U.S. benefits arise under the Social Security Act (based on U.S. work alone), not under the totalization agreement; because she qualified for U.S. benefits without totalization, her Polish pension was not exempt from WEP as a totalization-based payment.
The district court’s judgment affirming the Commissioner was appealed; the appellate court affirmed, finding substantial evidence supported the WEP reduction and the totalization agreement did not exempt Kamyk.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether WEP applies when claimant receives a foreign pension from untaxed foreign work	Kamyk: WEP should not apply because she worked enough in U.S. to qualify for full U.S. benefits and totalization agreement prevents her foreign pension from reducing U.S. benefits	Commissioner: WEP applies to anyone receiving a foreign pension based on work not subject to U.S. Social Security taxes unless an express statutory exemption applies	Held: WEP applies; Kamyk’s Polish pension is based on work not taxed by U.S. Social Security and so is subject to reduction
Whether the U.S.–Poland totalization agreement prevents WEP reduction for pensions that predate the agreement	Kamyk: Article stating pre-agreement determinations don’t affect rights arising under the agreement means her pre-agreement Polish pension cannot be used to reduce U.S. benefits	Commissioner: Kamyk has no rights "arising under" the agreement because she qualifies for U.S. benefits without totalization, so the agreement’s protective language does not apply	Held: Totalization agreement does not apply to Kamyk because her entitlement to U.S. benefits arises under the Social Security Act, not the agreement; thus no exemption from WEP
Whether Kamyk’s Polish pension fits statutory exemption for totalization-based payments under 42 U.S.C. § 415(a)(7)(A)(ii)	Kamyk: Her pension should be treated as totalization-related and exempt from WEP	Commissioner: She qualifies for Polish benefits without totalization, so payment is not a totalization-based exempt payment	Held: Not exempt — her Polish pension is not a payment made under a totalization agreement
Timeliness of judicial review	Kamyk: (implicitly) sought review despite delay	Commissioner: Statute of limitations for judicial review (60 days) applies	Held: Although Kamyk filed beyond 60 days, the limitations defense was waived because Commissioner did not raise it in district court; court reached merits

Key Cases Cited

Petersen v. Astrue, 633 F.3d 633 (8th Cir.) (explaining WEP application to foreign pensions)
Stroup v. Barnhart, 327 F.3d 1258 (11th Cir.) (addressing WEP and foreign pensions)
Rudykoff v. Apfel, 193 F.3d 579 (2d Cir.) (describing WEP’s purpose to eliminate windfalls for untaxed foreign pensions)
Bowen v. City of New York, 476 U.S. 467 (U.S. 1986) (statute-of-limitations filing deadline for judicial review is non-jurisdictional)
Johnson v. Sullivan, 922 F.2d 346 (7th Cir.) (government may waive statute-of-limitations defense by failing to raise it)