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Sambataro v. Commissioner of Social Security

United States District Court, S.D. New York

April 6, 2015

NANCY J. SAMBATARO, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

OPINION & ORDER

KATHERINE B. FORREST, District Judge.

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. 12-13.) 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; 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 States[3] 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.

(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.

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 ...


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