                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          APR 30 1999
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ZELMA STALION,

                Plaintiff-Appellant,

    v.                                                    No. 98-7122
                                                    (D.C. No. 97-CV-222-S)
    KENNETH S. APFEL, Commissioner,                       (E.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.




                             ORDER AND JUDGMENT         *




Before TACHA , BARRETT , and MURPHY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff Zelma Stalion appeals from an order of the district court      affirming

the Commissioner’s determination that she is not entitled to benefits. We affirm.

      We review the Commissioner’s decision to determine whether his factual

findings were supported by substantial evidence in light of the entire record and

to determine whether he applied the correct legal standards. See Castellano v.

Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994).

Substantial evidence is “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Id. (quotations omitted). In the course of

our review, we may “neither reweigh the evidence nor substitute our judgment for

that of the agency.” Casias v. Secretary of Health & Human Servs., 933 F.2d 799,

800 (10th Cir. 1991).

      Ms. Stalion alleged disability since April 1985    1
                                                             due to pain in her right hip,

lower back, ankle, and elbows and lack of grip in her left hand       . The

administrative law judge (ALJ) determined that Ms. Stalion was not disabled at

step four of the five-step sequential process, see Williams v. Bowen, 844 F.2d

748, 750-52 (10th Cir. 1988), as she could perform her past relevant work.

      On appeal, Ms. Stalion alleges her past work as a provider does not qualify

as past relevant work because provider work is generally not performed at the


1
      Ms. Stalion met the earnings requirements of the Social Security Act
through December 31, 1990.     See 20 C.F.R. § 404.130. Therefore, Ms. Stalion
must establish her disability prior to that date to qualify for Title II benefits.

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substantial gainful level unless the individual works several jobs. Ms. Stalion

contends that the ALJ should have made his determination at step five where, due

to her advanced age, the regulations provide that she cannot work unless she has

transferable skills, which she does not.      See 20 C.F.R. § 404.1563(d).

       In determining whether a claimant’s past work experience qualifies as past

relevant work, the ALJ must consider whether the work (1) was performed within

the last fifteen years, (2) lasted long enough for the claimant to learn to do it, and

(3) was substantial gainful activity.      See 20 C.F.R. § 404.1565(a). Earnings in

excess of $300 per month for the years before 1990 establish that a claimant has

engaged in substantial gainful activity.      See id. § 404.1574(b)(2)(vi). Part-time

work can be considered substantial gainful activity.      See id. § 404.1572(a).

       Ms. Stalion agrees that she performed her work as a provider within the last

fifteen years and that she held the job long enough to learn it. However, she

contends she had to work two jobs in order to meet the minimum earnings

necessary to meet the substantial gainful activity prong. The record shows that

Ms. Stalion had one job, that of provider. However, she saw two clients during

the week. Even if she were correct as to her supposition that two jobs cannot be

combined to meet the minimum earnings requirements, Ms. Stalion had one job.

       Ms. Stalion further proposes that Soc. Sec. Rul. 96-8p, 1996 WL 374184, at

*1, requires that any work be performed eight hours a day, five days a week to be


                                              -3-
considered past relevant work. She contends she worked only three hours a day,

seven days a week. Soc. Sec. Rul. 96-8p addresses the agency’s assessment of

whether an individual retains the ability to do work-related activities in a work

setting on a sustained basis and does not address the number of hours a claimant

must work to meet the substantial gainful activity level.   2
                                                                That determination is

made by consideration of the amounts earned.

       Ms. Stalion states her earnings of $300.00 a month were “presumptively not

considered substantial,” citing 20    C.F.R. § 404.1574(b)(2).     See Br. at 15.

Ms. Stalion misreads the regulation.

       Ms. Stalion further contends that the agency’s own reviewer found that she

had not performed her job at the substantial gainful activity level. While this is

true, we note that the reviewer was referring to the time period of December 1991

to May 1993, after Ms. Stalion claimed she was disabled. The ALJ considered

Ms. Stalion’s earnings prior to her alleged date of disability. Her earnings record

shows that in 1982, Ms. Stalion made over $500.00 per month, and in 1981 and

1984 she made over $300.00 per month.         See App. Vol. II at 139. Thus,

Ms. Stalion has satisfied the regulatory standards having performed her job as

provider at the level of substantial gainful activity.



2
       Even if the ruling applied, the agency specifically states that working eight
hours a day, five days a week “is not always required.”   Id. at n. 2, 7.

                                            -4-
      We agree that the ALJ correctly determined that Ms. Stalion performed her

job as a provider at the level of substantial gainful activity. Further, based on her

current activities, she retains the residual functional capacity to perform the duties

of that job as she actually performed it. Therefore, we conclude the ALJ correctly

determined that Ms. Stalion is not disabled.

      The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED.



                                                     Entered for the Court



                                                     Michael R. Murphy
                                                     Circuit Judge




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