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Vaserman v. Saul

United States District Court, E.D. Wisconsin

October 9, 2019

MIKHAIL LEONIDOVICH VASERMAN, Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, Defendant.

          DECISION AND ORDER

          NANCY JOSEPH, UNITED STATES MAGISTRATE JUDGE

         Mikahil Leonidovich Vaserman seeks judicial review of the final decision of the Commissioner of the Social Security Administration denying his claim for supplemental security income (“SSI”) aged benefits under the Social Security Act, 42 U.S.C. § 405(g). For the reasons below, the Commissioner's decision is affirmed.

         BACKGROUND

         Vaserman filed an application for SSI aged benefits on April 13, 2017. (Tr. 10.) Vaserman was seventy-one years old at the time of filing. (Tr. 111.) The claim was denied initially and on reconsideration. (Tr. 10.) Vaserman filed a request for a hearing and a hearing was held before an Administrative Law Judge (“ALJ”) on January 30, 2018. (Tr. 180.) Vaserman appeared at the hearing pro se, waiving his right to representation by either an attorney or a non-attorney representative. (Tr. 185-87.)

         In a written decision issued April 9, 2018, the ALJ found that Vaserman was ineligible for SSI under sections 1602 and 1611 of the Social Security Act because his resources exceeded the amount set by the regulations as the maximum allowed for eligibility. (Tr. 10- 12.) The ALJ's decision became the Commissioner's final decision when the Appeals Council denied the plaintiff's request for review. (Tr. 3-6.)

         DISCUSSION

         1. Applicable Legal Standards

         The Commissioner's final decision will be upheld if the ALJ applied the correct legal standards and supported his decision with substantial evidence. 42 U.S.C. § 405(g); Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011). Substantial evidence is not conclusive evidence; it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Schaaf v. Astrue, 602 F.3d 869, 874 (7th Cir. 2010) (internal quotation and citation omitted). The ALJ must provide a “logical bridge” between the evidence and conclusions. Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).

         The ALJ is also expected to follow the SSA's rulings and regulations in making a determination. Failure to do so, unless the error is harmless, requires reversal. Prochaska v. Barnhart, 454 F.3d 731, 736-37 (7th Cir. 2006). In reviewing the entire record, the court does not substitute its judgment for that of the Commissioner by reconsidering facts, reweighing evidence, resolving conflicts in evidence, or deciding questions of credibility. Estok v. Apfel, 152 F.3d 636, 638 (7th Cir. 1998). Finally, judicial review is limited to the rationales offered by the ALJ. Shauger v. Astrue, 675 F.3d 690, 697 (7th Cir. 2012) (citing SEC v. Chenery Corp., 318 U.S. 80, 93-95 (1943); Campbell v. Astrue, 627 F.3d 299, 307 (7th Cir. 2010)).

         2. Application to this Case

         In 1972, Congress created the SSI program to guarantee a minimum subsistence income level for aged, blind, and disabled persons. Inman v. Shalala, 30 F.3d 840, 841 (7th Cir. 1994). To obtain SSI based on age, one must have attained the age of sixty-five. 42 U.S.C. § 1381. However, “[a]s the name (Supplemental Security Income) implies, SSI benefits are meant to supplement other sources of income. Congress designates a minimum subsistence income level, and a qualifying person whose income falls below that level can receive checks from the federal government to make up the difference.” Inman, 30 F.3d at 841. Thus, one's income “is the essential variable in determining whether he is entitled to SSI benefits, and if so, how much.” Id.

         A married individual not residing with his or her spouse is not eligible for SSI if the individual's resources exceed $2, 000.00. 20 C.F.R. § 416.1202(a); 20 C.F.R. § 1205. An individual living with an ineligible spouse can have non-excludable resources, including those of the spouse, of up to $3, 000.00 in value. 20 C.F.R. § 1205. Resources are cash or other liquid assets or any real or personal property that 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. 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. 20 C.F.R. § 416.1201(a)(1). Resources are considered “liquid” if they are cash or other property which can be converted to cash within twenty days. 20 C.F.R. § 416.1201(b). The regulation specifically lists as an example of liquid resources financial institution accounts, including checking and savings accounts. Id.

         If, however, an individual disposes of his resources by giving them away or selling them for less than their fair market value in the thirty-six months prior to the date of his application of benefits, he is ineligible to receive SSI for up to thirty-six months. 42 U.S.C. § 1382b(c); 20 C.F.R. § 416.1246. If it is determined that the resources were given away for less than fair market value, then there is a presumption that it was for the purpose of establishing SSI eligibility, and the burden is on the individual to produce convincing evidence that the resource was transferred exclusively for some other reason. 20 C.F.R. § 416.1246(e).

         As an initial matter, Vaserman takes issue with two dates established by the ALJ in his decision. First, Vaserman argues the ALJ erred regarding his application date. Vaserman states that he applied for benefits on March 23, 2017, not April 13, 2017. (Pl.'s Br. at 9, Docket # 15.) Vaserman points to Exhibit E, attached to his brief, as support. (Docket # 15-1 at 17.) But this document is a letter dated March 23, 2017 confirming his April 13, 2017 appointment at the Social Security office to complete his SSI application. (Id. at 17-18.) Thus, it appears his application date of April 13, 2017 is correct. Second, Vaserman correctly faults the ALJ for stating that Vaserman's wife moved out of their apartment on April 13, 2017. (Pl.'s Br. at 9; Tr. 11.) The record contains a letter from Vaserman's wife to the property manager of their apartment stating that she was moving out of the apartment on March 24, 2017 (Tr. 140) and Vaserman testified that his wife moved out of their apartment on March 11, ...


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