1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

IVAN VACHKOV, 

Plaintiff, No. 3:15-cv-00040-MO

v. OPINION AND ORDER

CAROLYN W. COLVIN, Acting 

Commissioner of Social Security, 

Defendant.

MOSMAN, J., 

Ivan Vachkov challenges the Commissioner’s decision denying his claim for Disability 

Insurance Benefits (“DIB”). I have jurisdiction under 42 U.S.C. § 405(g) and now affirm the 

Commissioner’s decision. 

PROCEDURAL BACKGROUND 

On October 22, 2004, Mr. Vachkov filed for DIB under Title II of the Social Security 

Act, claiming disability beginning on November 15, 1999. (Tr. at 18.) The application was

denied on March 22, 2005, and upon reconsideration on May 16, 2012. Id. An administrative 

law judge (“ALJ”) held a hearing in May 2013. Id. On June 24, 2013, the ALJ issued his 

decision. 

THE ALJ’S FINDINGS

The ALJ made his decision based upon the five-step sequential process established by the 

Commissioner. See Bowen v. Yuckert, 482 U.S. 137, 140–41 (1987); 20 C.F.R. §§ 404.1520, 

Case 3:15-cv-00040-MO Document 23 Filed 01/06/16 Page 1 of 7
2 – OPINION AND ORDER

416.920 (establishing the five-step evaluative process for DIB and SSI claims). At Step One, the 

ALJ found Mr. Vachkov did not meet his burden of proving he did not engage in substantial 

gainful activity since the alleged onset date of November 15, 1999. (Tr. at 20.) The ALJ then 

proceeded past Step One and found Mr. Vachkov did not satisfy the fifth requirement because,

although he could not return to his past relevant work, Mr. Vachkov was able to work as a 

bakery worker, a hand packager, or an agricultural produce packer. (Tr. at 21-25.) 

STANDARD OF REVIEW

I review the Commissioner’s decision to ensure the Commissioner applied proper legal 

standards and the ALJ’s findings are supported by substantial evidence in the record. 

42 U.S.C. § 405(g); Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009). 

“‘Substantial evidence’ means more than a mere scintilla, but less than a preponderance; it is 

such relevant evidence as a reasonable person might accept as adequate to support a conclusion.” 

Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. Sec. Admin., 

466 F.3d 880, 882 (9th Cir. 2006)). The Commissioner’s decision must be upheld if it is a 

rational interpretation of the evidence, even if there are other possible rational interpretations. 

Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The reviewing court may not 

substitute its judgment for that of the Commissioner. Robbins, 466 F.3d at 882. 

DISCUSSION

Mr. Vachkov alleges he is disabled and the ALJ erred in denying his claim for disability 

insurance. Although Mr. Vachkov’s briefing is not extensive, the Commissioner in response 

offers four potential bases for Mr. Vachkov’s appeal: 1) whether Mr. Vachkov met his burden of 

proving he became disabled prior to the date his eligibility for Title II benefits expired; 2) 

whether Mr. Vachkov proved he did not engage in substantial gainful activity during his alleged 

disability period; 3) whether the ALJ erred in assigning less weight to Dr. Wicher’s opinion; and 

Case 3:15-cv-00040-MO Document 23 Filed 01/06/16 Page 2 of 7
3 – OPINION AND ORDER

4) whether substantial evidence supports the ALJ’s conclusion that Mr. Vachkov’s testimony is 

not credible as a source of information about his impairments. After reviewing the record, I 

agree that bases 2, 3, and 4 present Mr. Vachkov’s best arguments and address each below. 

I. The ALJ’s conclusion that Mr. Vachkov engaged in substantial business activity 

during his alleged disabled period

A claimant is entitled to disability benefits if she demonstrates an “inability to engage in 

any substantial gainful activity by reason of any medically determinable physical or mental 

impairment which can be expected to result in death or which has lasted or can be expected to 

last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The claimant 

bears the burden of establishing that she suffers an impairment that makes her unable to engage 

in substantial gainful activity. Gomez v. Chater, 74 F.3d 967, 970 (9th Cir.1996). If a claimant is 

able to engage in substantial gainful activity, which may be evidenced by work done during the 

period of claimed disability, she is not disabled. See 20 C.F.R. § 404.1571 (2001); Nelson v. 

Barnhart, 41 F. App'x 927, 928 (9th Cir. 2002). 

The ALJ determined Mr. Vachkov engaged in work during the time he claimed disability. 

The ALJ based this finding on statements from Mr. Vackov’s son. The son was asked “so the 

drywall, painting, whatever kind of business he had, so he was active in that up until the time of 

the prostate surgery [2002] or shortly before?” He responded, “As far as I know, yes.” (Tr. at 

904.) In addition, the ALJ relied on the Cooperative Disability Investigations Unit Report 

(CDIUR) which included a claim by Mr. Vachkov that he became unable to work in September, 

2003. (Tr. at 20.) 

Plaintiff’s counsel argued that the ALJ erred by not giving “primary consideration” to 

Mr. Vachkov’s earnings report, which showed little to no income for Mr. Vachkov during the 

Case 3:15-cv-00040-MO Document 23 Filed 01/06/16 Page 3 of 7
4 – OPINION AND ORDER

years in question. The argument is flawed for two reasons. First, the regulation providing for 

consideration of the earnings report notes “the fact that your earnings were not substantial will 

not necessarily show that you are not able to do substantial gainful activity.” 20 C.F.R. § 

404.1574. It is not enough for Mr. Vachkov to show no substantial earnings; without more, it 

does not rebut the testimony of Mr. Vachkov’s son. Second, the regulation Plaintiff cites

regarding earnings is limited to people who “are working or have worked as an employee.” Id. 

The testimony offered by Mr. Vachkov’s son was that Mr. Vachkov owned and ran his own 

business. (Tr. at 904.) The ALJ, in addition to the testimony of Mr. Vachkov’s son, credited the 

CDIUR which indicated Mr. Vachkov maintained a shop, equipment, painting supplies, trucks, 

licenses, a contractor’s bond, and owned twelve vehicles—all indicia of Mr. Vachkov running 

his own business. (Tr. at 20.). The report indicated Mr. Vachkov’s personal answering machine 

answered with “Omega Drywall and Painting” and his personal number was registered to the 

business. The ALJ had substantial evidence to conclude that Mr. Vachkov was not an 

“employee.” The ALJ thus was not compelled to find Mr. Vachkov did not engage in substantial 

activity based on the earnings report. 

The ALJ determines credibility and resolves ambiguities. Nelson v. Barnhart, 41 F. 

App'x 927, 928-29 (9th Cir. 2002). In light of all the evidence, there is substantial evidence to 

support the ALJ’s finding that Mr. Vachkov failed to show he did not engage in substantial 

gainful activity during his disability period and is thus not eligible for DIB. 

II. Dr. Wicher’s opinion did not show disability limitations during the relevant period 

Plaintiff’s counsel argued the ALJ was “not permitted to rest the rejection of Dr. 

Wicher’s opinion” on the fact that it occurred “more than 2 years after the claimant’s last 

insured date.” (Tr. at 594; 593.) However, the ALJ did not reject Dr. Wicher’s opinion. The 

Case 3:15-cv-00040-MO Document 23 Filed 01/06/16 Page 4 of 7
5 – OPINION AND ORDER

2005 opinion was that Mr. Vachkov’s delusional thinking “would make it hard for him to 

sustain full-time gainful employment.” (Tr. at 168.) Dr. Wicher did not opine on Mr. Vachkov’s 

condition during his disability eligibility period from 1999 to 2002. (Tr. at 165-168.) Indeed, 

Dr. Wicher’s opinion states Mr. Vachkov’s 2005 condition was “a decline from his previous 

level of functioning.” (Tr. at 167.) The ALJ noted the record included “medical evidence

related to the claimant's health after his date last insured in December of 2012 [sic], 

however, these records are not relevant to the claimant's ability to function in a work setting

prior to his date last insured.” (Tr. at 23.) Therefore the ALJ did not need to reject Dr. 

Wicher’s 2005 opinion to conclude Mr. Vachkov was ineligible for benefits between 1999 and 

2002. 

Even if the ALJ had rejected Dr. Wicher’s opinion, it would not be error. The Ninth Circuit 

has held it is appropriate to reject an examining physician’s opinion when the examination and 

diagnosis occur well after the injury and the expiration of disability insured status because the 

diagnosis “affords little weight and is not reliable.” Macri v. Chater, 93 F.3d 540, 545 (9th Cir. 

1996). Here, Dr. Wicher’s examination occurred in February 2005, over two years after the 

December 31, 2002 date when Mr. Vachkov was last insured date and more than five years after the 

November 1999 date of onset. Because Dr. Wicher’s examination occurred well after the injury, the 

ALJ correctly found it unreliable and gave it little weight in the analysis. 

III. Claimant’s Credibility

In analyzing a claimant’s subjective testimony, an ALJ must engage in a two-step 

inquiry. First, the ALJ must determine whether the claimant presented “objective medical 

evidence of an underlying impairment which could reasonably be expected to produce the pain 

or other symptoms alleged.” Lingenfelter, 504 F.3d at 1036 (quotation omitted). “Second, if the 

claimant meets this first test, and there is no evidence of malingering, the ALJ can reject the 

Case 3:15-cv-00040-MO Document 23 Filed 01/06/16 Page 5 of 7
6 – OPINION AND ORDER

claimant’s testimony about the severity of her symptoms only by offering specific, clear and 

convincing reasons for doing so.” Id. (quotation omitted). The ALJ may consider ordinary 

credibility factors, objective medical evidence and the claimant’s treatment history, as well as the 

claimant’s daily activities, work record, and observations of physicians and third parties with 

personal knowledge of the claimant’s functional limitations. Smolen v. Chater, 80 F.3d 1273, 

1284 (9th Cir. 1996). The ordinary credibility factors include “considering the claimant’s 

reputation for truthfulness and any inconsistent statements in her testimony.” Tonapetyan v. 

Halter, 242 F.3d 1144,1148 (9th Cir. 2001). 

The ALJ determined Mr. Vachkov was a “less than credible witness.” (Tr.at 23.) He 

based this finding on the “discrepancies between the claimant’s report of when he last worked 

and evidence to the contrary.” (Tr. at 23.) Mr. Vachkov testified “the last time I worked was 

1996 or [1997] or around that time.” (Tr. at 882.) However, in his 2005 statements to Dr. 

Wicher, Mr. Vachkov stated he had stopped working “a few years ago” and Mr. Vachkov’s son 

indicated he stopped working in 2002. (Tr. at 594; 904.) These discrepancies support the ALJ’s 

conclusion. The ALJ also found Mr. Vachkov’s “apparent failure to report earnings to the 

United States government further erode[s] his credibility.” (Tr. at 23-24.) The ALJ based this 

finding on the evidence that Mr. Vachkov owned a business for several years, but those years 

showed no reported earnings on his earnings record. (Tr. at 23.) Because of the discrepancies

between Plaintiff’s statements and the evidence from other witnesses, the ALJ did not err when 

he determined, based on substantial evidence, Mr. Vachkov was not a credible witness. 

CONCLUSION

It is certainly possible to reach a conclusion, based on these facts, more favorable to 

Plaintiff than the ALJ’s determination. However, the standard of review in this case requires 

only enough evidence to exist for a reasonable person to find support for the ALJ’s conclusions. 

Case 3:15-cv-00040-MO Document 23 Filed 01/06/16 Page 6 of 7
7 – OPINION AND ORDER

Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). The Commissioner’s decision is 

supported by substantial evidence and is therefore AFFIRMED. 

IT IS SO ORDERED.

DATED this 6th day of January, 2016. 

/s/ Michael W. Mosman____ 

MICHAEL W. MOSMAN

United States District Court

Case 3:15-cv-00040-MO Document 23 Filed 01/06/16 Page 7 of 7