United States District Court, W.D. Washington, Seattle
VALENTINA P. FOKINA, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER AFFIRMING THE COMMISSIONER'S FINAL DECISION
AND DISMISSING THE CASE WITH PREJUDICE
RICHARD A. JONES UNITED STATES DISTRICT JUDGE.
P. Fokina seeks review of the Administrative Law Judge's
(ALJ's) decision finding her ineligible to receive
Supplemental Security Income (SSI) benefits paid between June
2009 and November 2012 due to excess resources. Tr. 29. Ms.
Fokina contends the ALJ erred by including an apartment in
Russia (the Subject Property) as a countable resource for the
purposes of determining her eligibility for SSI benefits.
Dkt. 10 at 6. As discussed below, the Court
AFFIRMS the Commissioner's final
decision and DISMISSES the case with
2009, Ms. Fokina applied for benefits, alleging disability as
of October 1, 2008. Tr. 25. Although the Social Security
Administration (SSA) denied Ms. Fokina's application, ALJ
Verrell Dethloff issued a decision March 25, 2011, finding
her disabled. Tr. 51-55. On August 12, 2012, Ms. Fokina
submitted redetermination information for continued
eligibility in which she reported for the first time owning
an apartment in Russia worth $20, 000.00. Tr. 25, 66-69. SSA
issued a notice informing Ms. Fokina she was not eligible for
SSI because her resources exceeded the maximum $2, 000.00.
Tr. 80-93. Ms. Fokina had been receiving benefits from June
2009 until they were ceased in November 2012. Tr. 25. Ms.
Fokina's request for reconsideration was denied at the
agency level and she requested a hearing before an ALJ.
Id. ALJ Mary Gallagher Dilly conducted a hearing and
on November 27, 2013, issued a decision finding Ms. Fokina
was not eligible to receive SSI benefits between June 2009
and November 2012 due to excess resources. Tr.
25-29. The Appeals Council denied Ms.
Fokina's request for review making the ALJ's decision
the Commissioner's final decision. Tr. 6-9.
Fokina argues the ALJ erred in finding the Subject Property
was properly included as a countable resource, thereby
rendering her ineligible for SSI benefits. Dkt. 10 at 6. The
Court may reverse an ALJ's decision only if it is not
supported by substantial evidence or if the ALJ applied the
wrong legal standard. See Molina v. Astrue, 674 F.3d
1104, 1110 (9th Cir. 2012). Even then, the Court will reverse
the ALJ's decision only if the claimant demonstrates that
the ALJ's error was harmful. Id. An unmarried
claimant is ineligible for SSI if her resources exceed $2,
000.00. 20 C.F.R. §416.1205. “Resources”
includes any real property “an individual (or spouse,
if any) owns and could convert to cash to be used for his or
her support and maintenance.” 20 C.F.R.
§416.1201(a). If the claimant “has the right,
authority or power to liquidate the property or his or her
share of the property, it is considered a resource. If a
property right cannot be liquidated, the property will not be
considered a resource of the individual (or spouse).”
20 C.F.R. §416.1201(a)(1).
substantial evidence supports the ALJ's finding that the
Subject Property was a countable resource, thereby rendering
Ms. Fokina ineligible to receive SSI during the period in
question. Tr. 25-29; see, e.g., Hong Jun Xun v.
Colvin, 651 Fed.Appx. 658, 660 (9th Cir. 2016)
(unpublished) (substantial evidence supported the ALJ's
determination that the claimant did not hold certain funds in
trust for his brother and that the funds were properly
considered a countable resource in excess of the statutory
maximum prescribed for SSI eligibility). Ms. Fokina does not
dispute that in 1996 she and her husband at the time,
Aleksandr Fokin, purchased an apartment in Belgorod, Russia
(the Subject Property). Dkt. 10 at 2; Tr. 35. Ms. Fokina also
does not dispute that in 1998, she and Mr. Fokin executed a
document entitled “Contract of Gift” (the
Contract) and by the terms of that document she
“accept[ed] [the] gift” of the Subject Property
from Mr. Fokin. Tr. 157-158. The Contract indicates that the
Subject Property was not “sold, gifted, [or] promised
to be gifted to a third party, ” and that Ms. Fokina
“acquire[d] rights for said property from the moment of
State Registration of the present Contract.”
Id. The Contract further “registered [Ms.
Fokina] as an owner.” Id. Ms. Fokina also
possesses a certificate from a passport clerk listing the
Subject Property as her “permanently registered
residence” since January 1997. Tr. 163.
she does not dispute the existence of the Contract, Ms.
Fokina contends the ALJ should not have considered the
Subject Property a countable resource because
“circumstances beyond her control prevented her from
returning to Russia and converting the Subject Property to
cash.” Dkt. 10 at 10. Specifically, Ms. Fokina
indicates she is unable to return to Russia due to fear of
persecution. Id. Ms. Fokina testified generally
that, although she was Christian, because she had lived in a
Muslim country (Kyrgyzstan), she received threats that she
should not move or go to Russia. Tr. 39-40. She also
testified that her neighbors in Russia had kidnapped and
tortured her although it is unclear whether she attributes
the motive for this to the fact that she had lived in a
Muslim country. Id.
Court is not unsympathetic to Ms. Fokina's circumstances.
However, the ALJ considered these same arguments in her
decision and reasonably concluded that Ms. Fokina retained
the right, authority and power to liquidate the Subject
Property. While Ms. Fokina may certainly have good reasons
for not wishing to return to Russia, as the ALJ points out,
she maintains a Russian passport with no travel restrictions
to or from the country. Tr. 27. Moreover, although Ms. Fokina
claims she would have to return to Russia to sell the
property, she presents no evidence that she has made any
attempt to sell the property from the United States, nor has
she presented any evidence or articulated any concrete
reasons why she would be unable to do so. Tr. 40. As the ALJ
points out, Ms. Fokina has continued to engage in Russian
transactions after leaving the country, including securing a
divorce in 2011, and obtaining a certificate of permanent
residence status in 2013. Tr. 28. Under the circumstances,
substantial evidence supports the ALJ's conclusion that
Ms. Fokina retained the right, power and authority to
liquidate the Subject Property and that it was properly
considered a countable asset. See Orteza v. Shalala,
50 F.3d 748, 749 (9th Cir. 1995) (per curiam) (When the
evidence before the ALJ is “susceptible of more than
one rational interpretation, the decision of the ALJ must be
Fokina also argues the ALJ erred in finding “she had
the legal ability to convert the Subject Property to cash for
her maintenance and support.” Dkt. 10 at 12.
Specifically, Ms. Fokina argues that she and her husband
acquired the Subject Property to give to their daughter,
Oksana (a minor at the time) “once they could legally
put the title in her name.” Id. at 13.
However, again, the ALJ considered this argument and
reasonably rejected it. Specifically, the ALJ notes that
Oksana's name does not appear on the title of the
property and, despite what may have been Ms. Fokina's and
Mr. Fokin's original intent in purchasing the property,
there is no evidence that Ms. Fokina ever legally transferred
ownership of the property to her daughter. Tr. 27-28.
Moreover, the terms of the Contract transferring ownership to
Ms. Fokina specifically state that the Subject Property was
not “sold, gifted, [or] promised to be gifted to a
third party” and that Ms. Fokina alone acquired rights
to the property. Tr. 157-158. While, again, Ms. Fokina may
have good reasons for not wishing to liquidate the property
(i.e., to retain it for her daughter's benefit), her
argument fails to establish she lacks the right, authority or
power to do so and that the ALJ erred in including the
Subject Property as a countable resource.
Fokina also contends the ALJ erred in failing to consider
Russian law in determining the legal effect of the transfer
of the title from Mr. Fokin to Ms. Fokina, as well as Ms.
Fokina's legal ability to convert the Subject Property to
cash for her maintenance and support. Dkt. 10 at 14. Ms.
Fokina fails to establish the ALJ made any error of law. The
Court notes that it appears Russian law recognizes donation
contracts such as the Contract at issue wherein one party,
the donor, gratuitously transfers or promises the donee any
object of value, and the donee in turn agrees to accept and
receive the thing of value. See 24 Loy. L.A.
Int'l & Comp. L. Rev. 113, 157 (March 2002); C. Civ.
Art. 572 (Russ.). Ms. Fokina does not argue the Contract
transferring ownership to her was, in fact, invalid under
Russian law, nor does she argue, much less cite to any
authority, demonstrating that she would be legally barred
from liquidating the property under Russian law for some
other reason. Rather, Ms. Fokina's argument is purely
speculative. As such, Ms. Fokina fails to establish the ALJ
erred in concluding that she alone has retained ownership of
the Subject Property since 1998, as well as the right, power
and authority to liquidate that property. Tr. 28.
Fokina further argues the ALJ erred in considering the
Subject Property a countable resource because evidence shows
litigation would be required in order to force a sale of the
Subject Property. Dkt. 10 at 14-17. Ms. Fokina contends the
ALJ failed to follow the SSA's Program Operations Manual
System (POMS) SI 01120.010.C which provides that
“[w]hen there is a legal bar to sale of property (e.g.,
if a co-owner legally blocks sale of jointly-owned property),
we do not require an individual to undertake litigation in
order to accomplish sale or access.” POMS SI
01120.010.C. The Ninth Circuit has held that POMS may be
“entitled to respect ... to the extent it provides a
persuasive interpretation of an ambiguous regulation”
but “does not impose judicially enforceable duties on
either this court or the ALJ.” Kennedy v.
Colvin, 738 F.3d 1172, 1177 (9th Cir. 2013) (internal
citation and quotation marks omitted). However, Ms. Fokina
offers no evidence, beyond speculative arguments, that
litigation would be required to liquidate the Subject
Property. Ms. Fokina makes the conclusory assertion that when
her marriage dissolved, her ex-husband, Mr. Fokin, became a
tenant in common of the Subject Property and, therefore owns
an undivided one-half interest in that property. Dkt. 10 at
14. However, Ms. Fokina cites no evidence demonstrating Mr.
Fokin retained any interest in the Subject Property nor does
she cite to any law supporting this contention. Furthermore,
this argument is contrary to the terms of the Contract
indicating Mr. Fokin transferred ownership of the property to
Ms. Fokina alone. Tr. 157-158. Mr. Fokin submitted an
affidavit indicating that he and Ms. Fokina originally
purchased the Subject Property for their daughter. Tr. 154.
However, Mr. Fokin does not state he believes that either he
or his daughter retains any legal ownership interest in the
property, or that Ms. Fokina would not have the legal right
to sell the property. Id. Mr. Fokin also does not
indicate he would initiate litigation in an attempt to block
or oppose Ms. Fokina's sale of the Subject Property.
Id. Ms. Fokina fails to point to any evidence,
beyond speculation, indicating there is a legal bar to sale
of the property, or that litigation would be required to sell
the property. Accordingly, she fails to establish error.
Ms. Fokina contends that “the record does not support a
finding that [she] would realize an amount greater than the
resource limit, after legal fees, costs, and other expenses
associated with selling the Subject Property, which is
located in another country, are deducted.” Dkt. 10 at
16-17. If illiquid property such as land cannot be converted
into cash in twenty days, it “is valued at the price
the property can reasonably be expected to sell for on the
open market in the particular geographic area involved; minus
… any encumbrances.” 20 C.F.R.
§416.1202(c)(2)(i)-(ii). Here, Ms. Fokina herself
indicates that the property is worth $20, 000.00 and that
there are no encumbrances. Tr. 37. Even if it were proper for
the Court to consider expenses associated with the sale, Ms.
Fokina presents no evidence, other than speculation, that
expenses would deplete the profit from the sale of a $20,