                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            NOV 1 1999
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    JIMMY L. MORRIS,

                Plaintiff-Appellant,

    v.                                                    No. 99-7017
                                                    (D.C. No. CIV-98-183-S)
    KENNETH S. APFEL, Commissioner                        (E.D. Okla.)
    of Social Security,

                Defendant-Appellee.




                             ORDER AND JUDGMENT           *




Before BALDOCK , BARRETT , and McKAY , 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      This order and judgment is not binding precedent, except under the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.
       Claimant Jimmy L. Morris appeals from an order of the district court

affirming the Commissioner’s determination that he was not eligible for Social

Security disability benefits. The administrative law judge (ALJ) denied benefits at

step one, holding that claimant had engaged in substantial gainful activity

subsequent to the date he last met the insured status requirements.     See Williams v.

Bowen , 844 F.2d 748, 750 (10th Cir. 1988). The Appeals Council denied review.

The district court adopted the recommendation of the magistrate judge affirming

the ALJ’s decision. On appeal, plaintiff argues the ALJ’s determination is not

supported by substantial evidence. We exercise jurisdiction pursuant to 28 U.S.C.

§ 1291 and 42 U.S.C. § 405(g), and we affirm.

       “We review the [Commissioner’s] decision to determine whether [his]

factual findings are supported by substantial evidence in the record viewed as a

whole and whether [he] applied the correct legal standards. Substantial evidence

is such relevant evidence as a reasonable mind might accept as adequate to support

a conclusion.”   Castellano v. Secretary of Health & Human Servs.     , 26 F.3d 1027,

1028 (10th Cir. 1994) (citations and quotations omitted).

       At step one of the sequential analysis, the claimant has the burden of

showing he is not performing substantial gainful activity.      See 20 C.F.R.

§ 404.1571; Musgrave v. Sullivan , 966 F.2d 1371, 1376 (10th Cir. 1992) (claimant

has burden of proving disability);   Fowler v. Bowen , 876 F.2d 1451, 1453 (10th


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Cir. 1989) (claimant engaged in substantial gainful activity will not be found

disabled no matter how severe his impairments). Substantial gainful activity is

work that is both substantial, i.e., involving “significant physical or mental

activities” even if done part-time or if the claimant does less, gets paid less, or has

less responsibility than when he worked before; and gainful, i.e., “work usually

done for pay or profit, whether or not a profit is realized.” 20 C.F.R. §

404.1572(a), (b). For a self-employed individual, “[s]upervisory, managerial,

advisory or other significant personal services” he or she performs may show that

individual is “able to do substantial gainful activity.”   Id. § 404.1573(d).

       Claimant alleges disability as of January 1, 1990. In order to recover

benefits, claimant must establish that he was disabled on June 30, 1990, the date

his status as an insured expired. In denying his application for benefits, the ALJ

determined that subsequent to the date he last met the insured status requirements,

claimant was self-employed in cattle farming and in a construction/truck

contracting business. Although claimant’s wife testified that she did most of the

work involved in the contracting business and a former employee testified that he

had dealt with claimant’s wife regarding job assignments, the ALJ found that

claimant had many years of experience in the construction and subcontracting

business and had been significantly involved.




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         The claimant also testified that he had purchased twenty acres of farm land

and had between twelve and fifteen head of cattle in order to keep the grass down.

He testified that the cattle were “pretty well self taken care of,” R. Vol. II at 233,

but that, in the winter, he and his wife would use a small tractor to take hay to the

fields, see id. at 228. He testified that in 1994, he had someone pick up a number

of the cattle and take them to the stock yards where they were sold for

approximately $2,800. He claimed that he sold the cattle because he had more

than he needed for the grass he had.   See id. at 229-30.

         The ALJ found that claimant’s 1994 tax return indicated claimant’s

involvement in both businesses and showed gross income in excess of $100,000,

business expenses of $98,544, and a net profit of $2,968. His 1995 tax return

showed gross income of $14,576 with a net profit of $9,494.     1
                                                                    The ALJ concluded

that although claimant’s wife may have been minimally involved in the operation

of the business, claimant was the “guiding force behind the business based on his

statements, his past experience in the business, and his tax returns.” R. Vol. II

at 18.

         On appeal, claimant alleges that the ALJ’s dismissal of claimant’s testimony

that his wife solely ran the truck contracting business amounted to a finding of


1
        The ALJ noted that the tax returns submitted by claimant were incomplete
and the claimant did not comply with the ALJ’s request that he submit complete
tax returns for the years 1992-1995.   See R. Vol. II at 18.

                                           -4-
incredibility which was not supported by substantial evidence. He contends that

the ALJ failed to make the credibility analysis as required in   Kepler v. Chater , 68

F.3d 387, 391 (10th Cir. 1995). We need not address this argument, however,

because, as claimant readily admits, the ALJ did not make a finding that claimant

was not credible. Instead, the ALJ concluded that claimant had not met his burden

of proving that he was not engaged in substantial gainful activity subsequent to

the date he last met the insured status requirements of the Social Security Act. In

reaching this conclusion, the ALJ appropriately considered claimant’s involvement

in the cattle farming and construction/truck contracting businesses, his mental and

physical contributions to these businesses, and his income from these businesses.

       Next, claimant alleges that the ALJ did not perform an adequate legal

analysis of the regulations governing step one determinations. In order to

determine whether a self-employed claimant is performing substantial gainful

activity, the Commissioner examines the claimant's activities and their value to his

business, including (1) whether the claimant’s work activity in terms of “hours,

skills, energy output, efficiency, duties, and responsibilities, is comparable to that

of unimpaired individuals” in the same or a similar business; (2) if the work

activity is not comparable, whether, in terms of its value to the business, the

activity is worth [$500 per month]; or (3) whether the claimant provides “services

that are significant to the operation of business” and receives substantial income


                                             -5-
therefrom. See 20 C.F.R. § 404.1575(a). The Commissioner also considers

whether the claimant performs any “[s]upervisory, managerial, advisory or other

significant personal services.”     Id. § 404.1573(d). Income alone is not

determinative, and the Commissioner will evaluate the claimant’s work activity

based on the value of claimant’s services to the business regardless of whether

claimant receives an immediate income.        See id . § 404.1575(a).

       In an attempt to more fully develop the record in this case, at the close

of claimant’s hearing, the ALJ requested that claimant submit his complete tax

returns for the years 1992-95. In so doing, the ALJ informed claimant that the

incomplete tax returns he had submitted were insufficient to support claimant’s

testimony, and could not support a favorable decision for claimant.       See R. Vol. II

at 236. The record was held open for an additional forty-four days for submission

of these documents. Claimant did not submit the documents or request an

extension of time in which to do so.

       The claimant bears the burden of proving he is not engaged in substantial

gainful activity.   See Musgrave , 966 F.2d at 1376. The ALJ provided claimant

with ample opportunity to provide additional information the ALJ considered

crucial to a proper regulatory analysis of whether claimant was engaged in

substantial gainful activity.     See R. Vol. II at 236. After claimant’s failure to

provide this information, he cannot now complain that the ALJ’s analysis was


                                              -6-
faulty. It is clear from our reading of the record that the ALJ’s analysis was as

thorough as possible with the information he was provided.

       The ALJ’s decision clearly set forth the regulatory framework for

determining whether a claimant has engaged in substantial gainful activity.        See id.

at 16. The ALJ discussed claimant’s testimony regarding his many years of

experience in the contracting business, the incomplete tax returns, and his finding

that claimant rendered significant mental and physical activities to the businesses.

We therefore determine that the ALJ reasonably concluded that subsequent to the

time he was last insured, June 30, 1990, claimant had been engaged in substantial

gainful activity, a conclusion that forecloses a finding of disability.    See 20 C.F.R.

§ 404.1520(a), (b); SSR 88-25. This conclusion is supported by substantial

evidence.

       Therefore, the judgment of the United States District Court for the Eastern

District of Oklahoma is AFFIRMED.



                                                           Entered for the Court



                                                           Monroe G. McKay
                                                           Circuit Judge




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