NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 24 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
VALENTINA P. FOKINA, No. 17-35858
Plaintiff-Appellant, D.C. No. 2:16-cv-01279-RAJ
v. MEMORANDUM* NANCY A. BERRYHILL, Acting Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding
Argued and Submitted October 10, 2018 Seattle, Washington
Before: BLACK,** PAEZ, and BEA, Circuit Judges.
Valentina Fokina appeals the district court’s order affirming the
determination that Fokina was ineligible to receive Supplemental Security Income
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Susan H. Black, United States Circuit Judge for the U.S. Court of Appeals for the Eleventh Circuit, sitting by designation. 1 (SSI) benefits due to her possession of excess resources, over the limit that are
allowed SSI benefit recipients. We have jurisdiction under 28 U.S.C. § 1291, and
we review de novo. Ghanim v. Colvin, 763 F.3d 1154, 1159 (9th Cir. 2014). We
affirm.
1. Substantial evidence supports the determination that Fokina’s apartment
in Belgorod, Russia was worth over $2,000, the statutory resource limit. 20 C.F.R.
§ 416.202(d). The Administrative Law Judge (ALJ) based this finding on Fokina’s
August 14, 2012 signed statement, given under penalty of perjury, which said:
I UNDERSTAND THAT MY RESOURCE LIMIT IS $2,000.00 AND THAT IF MY RESOURCES EXCEED THIS AMOUNT I WILL BE INELIGIBLE.
8/15/12 MY HUSBAND GAVE ME THE APARTMENT 138 ABOUT 10 YEARS AGO. I BELIEVE IT IS WORTH ABOUT 20,000.00 U.S. DOLLARS. NO ONE IS LIVING THERE. MY BROTHER WATCHES OVER THE APARTMENT.
That statement constitutes substantial evidence. POMS SI 01140.100.G.1
(stating that “the claimant[’s] . . . allegation of the property’s value” is the primary
method of determining value of non-home real property). Fokina’s argument that
her statement was an “off-the-top” response is belied by the formality of the signed
declaration.
Fokina also claims that the ALJ did not consider the costs of preparing the
apartment to be sold. But Fokina proffered no evidence to that effect, as to which 2 she bore the burden of producing. “An ALJ’s duty to develop the record further is
triggered only when there is ambiguous evidence or when the record is inadequate
to allow for proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453,
459-60 (9th Cir. 2001). There was nothing ambiguous about Fokina’s plain
statement that her apartment was “worth about $20,000,” ten times the statutory
resource limit.1
2. Substantial evidence supports the determination that Fokina’s ex-husband
did not present a legal barrier to sale. The SSA does not “require an individual to
undertake litigation in order to accomplish sale” when there is a “legal bar to sale
of property.” POMS SI 01120.010.C.2. But unlike the cases cited by Fokina—
Kubetin v. Astrue, 637 F. Supp. 2d 59 (D. Mass. 2009), and Winston v. Colvin, No.
6:13-CV-1662-CL, 2015 WL 1549164 (D. Or. Apr. 7, 2015)—Fokina failed to
show that litigation would be required to sell her property. In fact, the contract
1 The dissent manufactures ambiguity by discovering the inventory value of the apartment mentioned in the record. Aside from the fact that there is no evidence that the inventory value bears any relation to market value, this argument is clearly waived. If waiver means anything, it means that we cannot raise claims sua sponte and then use them to resolve disputes. The purpose of barring arguments waived is to guarantee that parties “have the opportunity to present whatever legal arguments [they] may have” and ensure that “litigants [are] not surprised on appeal by [the] final decision.” Hormel v. Helvering, 312 U.S. 552, 556-57 (1941). The parties would surely be surprised if we decided this case on a claim that neither party argued or briefed at any stage of the proceeding. 3 produced at the hearing stated that Fokina’s ex-husband transferred his legal rights
to her in July, 1998.
3. Substantial evidence supports the determination that Fokina was not
prevented from selling the apartment by circumstances beyond her control. Fokina
argues that she would need to be physically present in Russia for the sale. Aside
from her own assertions, however, she presented no evidence at the hearing to
support that claim. And the ALJ found that she had executed several legal
arrangements from the United States: obtaining a divorce decree in 2011, obtaining
a copy of her divorce certificate in 2012, and executing permanent resident status
in 2013. As before, Fokina’s claim runs aground on the lack of contrary evidence
in the record.
Even if that finding were in error, substantial evidence supports the ALJ’s
determination that Fokina could return to Russia to sell the apartment. Fokina
claims that past persecution prevents her return. But in addition to finding that
Fokina’s status as a refugee was related to events in Tajikistan, not Russia, the ALJ
also found that Fokina held a Russian passport with no travel restrictions. “Where
evidence is susceptible to more than one rational interpretation, it is the ALJ’s
conclusion that must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.
4 2005) (citation omitted). Based on this evidence, it was not irrational to conclude
that Fokina could return to Russia to sell the apartment.
AFFIRMED.
5 FILED DEC 24 2018 Fokina v. Berryhill, No. 17-35858 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS PAEZ, Circuit Judge, dissenting:
I disagree with my colleagues that substantial evidence supports the
Administrative Law Judge’s (“ALJ”) determination that Fokina’s apartment in
Belgorod, Russia was worth more than the statutory resource limit. I respectfully
dissent.
Substantial evidence does not support the determination by the ALJ that the
value of the apartment exceeded the resource limit because the evidence is
inconsistent. The ALJ relied upon Fokina’s statement that the apartment is worth
$20,000, but disregarded, without explanation, other evidence about the value of
the apartment. The contract transferring the property to Fokina, which the ALJ
heavily relied upon to determine property ownership, values the apartment at
21,368 rubles—not dollars. The ALJ erred in relying upon the contract to
determine ownership but ignoring the valuation in it. See Gordon v. Sec’y of
Health & Human Servs., 803 F.2d 1071, 1073 (9th Cir. 1986) (reversing in part a
determination of ineligibility based on resources and remanding because neither
the district court nor the agency considered certain evidence).
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 24 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
VALENTINA P. FOKINA, No. 17-35858
Plaintiff-Appellant, D.C. No. 2:16-cv-01279-RAJ
v. MEMORANDUM* NANCY A. BERRYHILL, Acting Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding
Argued and Submitted October 10, 2018 Seattle, Washington
Before: BLACK,** PAEZ, and BEA, Circuit Judges.
Valentina Fokina appeals the district court’s order affirming the
determination that Fokina was ineligible to receive Supplemental Security Income
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Susan H. Black, United States Circuit Judge for the U.S. Court of Appeals for the Eleventh Circuit, sitting by designation. 1 (SSI) benefits due to her possession of excess resources, over the limit that are
allowed SSI benefit recipients. We have jurisdiction under 28 U.S.C. § 1291, and
we review de novo. Ghanim v. Colvin, 763 F.3d 1154, 1159 (9th Cir. 2014). We
affirm.
1. Substantial evidence supports the determination that Fokina’s apartment
in Belgorod, Russia was worth over $2,000, the statutory resource limit. 20 C.F.R.
§ 416.202(d). The Administrative Law Judge (ALJ) based this finding on Fokina’s
August 14, 2012 signed statement, given under penalty of perjury, which said:
I UNDERSTAND THAT MY RESOURCE LIMIT IS $2,000.00 AND THAT IF MY RESOURCES EXCEED THIS AMOUNT I WILL BE INELIGIBLE.
8/15/12 MY HUSBAND GAVE ME THE APARTMENT 138 ABOUT 10 YEARS AGO. I BELIEVE IT IS WORTH ABOUT 20,000.00 U.S. DOLLARS. NO ONE IS LIVING THERE. MY BROTHER WATCHES OVER THE APARTMENT.
That statement constitutes substantial evidence. POMS SI 01140.100.G.1
(stating that “the claimant[’s] . . . allegation of the property’s value” is the primary
method of determining value of non-home real property). Fokina’s argument that
her statement was an “off-the-top” response is belied by the formality of the signed
declaration.
Fokina also claims that the ALJ did not consider the costs of preparing the
apartment to be sold. But Fokina proffered no evidence to that effect, as to which 2 she bore the burden of producing. “An ALJ’s duty to develop the record further is
triggered only when there is ambiguous evidence or when the record is inadequate
to allow for proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453,
459-60 (9th Cir. 2001). There was nothing ambiguous about Fokina’s plain
statement that her apartment was “worth about $20,000,” ten times the statutory
resource limit.1
2. Substantial evidence supports the determination that Fokina’s ex-husband
did not present a legal barrier to sale. The SSA does not “require an individual to
undertake litigation in order to accomplish sale” when there is a “legal bar to sale
of property.” POMS SI 01120.010.C.2. But unlike the cases cited by Fokina—
Kubetin v. Astrue, 637 F. Supp. 2d 59 (D. Mass. 2009), and Winston v. Colvin, No.
6:13-CV-1662-CL, 2015 WL 1549164 (D. Or. Apr. 7, 2015)—Fokina failed to
show that litigation would be required to sell her property. In fact, the contract
1 The dissent manufactures ambiguity by discovering the inventory value of the apartment mentioned in the record. Aside from the fact that there is no evidence that the inventory value bears any relation to market value, this argument is clearly waived. If waiver means anything, it means that we cannot raise claims sua sponte and then use them to resolve disputes. The purpose of barring arguments waived is to guarantee that parties “have the opportunity to present whatever legal arguments [they] may have” and ensure that “litigants [are] not surprised on appeal by [the] final decision.” Hormel v. Helvering, 312 U.S. 552, 556-57 (1941). The parties would surely be surprised if we decided this case on a claim that neither party argued or briefed at any stage of the proceeding. 3 produced at the hearing stated that Fokina’s ex-husband transferred his legal rights
to her in July, 1998.
3. Substantial evidence supports the determination that Fokina was not
prevented from selling the apartment by circumstances beyond her control. Fokina
argues that she would need to be physically present in Russia for the sale. Aside
from her own assertions, however, she presented no evidence at the hearing to
support that claim. And the ALJ found that she had executed several legal
arrangements from the United States: obtaining a divorce decree in 2011, obtaining
a copy of her divorce certificate in 2012, and executing permanent resident status
in 2013. As before, Fokina’s claim runs aground on the lack of contrary evidence
in the record.
Even if that finding were in error, substantial evidence supports the ALJ’s
determination that Fokina could return to Russia to sell the apartment. Fokina
claims that past persecution prevents her return. But in addition to finding that
Fokina’s status as a refugee was related to events in Tajikistan, not Russia, the ALJ
also found that Fokina held a Russian passport with no travel restrictions. “Where
evidence is susceptible to more than one rational interpretation, it is the ALJ’s
conclusion that must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.
4 2005) (citation omitted). Based on this evidence, it was not irrational to conclude
that Fokina could return to Russia to sell the apartment.
AFFIRMED.
5 FILED DEC 24 2018 Fokina v. Berryhill, No. 17-35858 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS PAEZ, Circuit Judge, dissenting:
I disagree with my colleagues that substantial evidence supports the
Administrative Law Judge’s (“ALJ”) determination that Fokina’s apartment in
Belgorod, Russia was worth more than the statutory resource limit. I respectfully
dissent.
Substantial evidence does not support the determination by the ALJ that the
value of the apartment exceeded the resource limit because the evidence is
inconsistent. The ALJ relied upon Fokina’s statement that the apartment is worth
$20,000, but disregarded, without explanation, other evidence about the value of
the apartment. The contract transferring the property to Fokina, which the ALJ
heavily relied upon to determine property ownership, values the apartment at
21,368 rubles—not dollars. The ALJ erred in relying upon the contract to
determine ownership but ignoring the valuation in it. See Gordon v. Sec’y of
Health & Human Servs., 803 F.2d 1071, 1073 (9th Cir. 1986) (reversing in part a
determination of ineligibility based on resources and remanding because neither
the district court nor the agency considered certain evidence). The ALJ further erred by failing to consider the rubles to dollars exchange rate.1 See POMS SI
01140.100.J.2.
The ALJ had both a heightened duty to develop the record and a
responsibility to resolve inconsistent evidence. The ALJ must develop the record
“fully and fairly” in disability benefits cases. Mayes v. Massanari, 276 F.3d 453,
459 (9th Cir. 2001). This includes resolving inconsistencies. See Lamear v.
Berryhill, 865 F.3d 1201, 1206 (9th Cir. 2017). The ALJ bears a heightened duty
to develop the record “when the record is inadequate to allow for proper evaluation
of the evidence,” Mayes, 276 F.3d at 459–60, and “where the claimant may be
mentally ill and thus unable to protect her own interests,” Tonapetyan v. Halter,
242 F.3d 1144, 1150 (9th Cir. 2001). When a claimant is unrepresented, “the ALJ
must be especially diligent in exploring for all the relevant facts.” Id. All of the
circumstances calling for a heightened duty to develop the record were present
here: the record contains conflicting evidence about the value of the apartment;
Fokina is mentally ill; and, at the hearing before the ALJ, Fokina was without
licensed counsel. Yet the ALJ did nothing to resolve the inconsistency and did not
even ask about the value of the apartment at the hearing.
1 I note that the exchange rate as of September 30, 2018 was 65.7750 Russian rubles to 1 United States dollar. Current Rates: Treasury Reporting Rates of Exchange as of September 30, 2018, DEP’T OF THE TREASURY, BUREAU OF THE FISCAL SERVICE (Nov. 29, 2018), https://www.fiscal.treasury.gov/reports- statements/treasury-reporting-rates-exchange/current.html. Finally, contrary to the Commissioner’s objection, Fokina did not forfeit
her argument that the ALJ failed to develop the record. “Once ‘an issue or claim is
properly before the court, the court is not limited to the particular legal theories
advanced by the parties.’” Thompson v. Runnels, 705 F.3d 1089, 1098 (9th Cir.
2013) (quoting Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991)).
Fokina raised the issue of whether substantial evidence supported the ALJ’s
finding of excess resources. The value of the apartment is inherently part of that
issue.
For these reasons, I would reverse the district court and direct the district
court to remand this case to the ALJ for further development of the record with
respect to the value of the apartment.