                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-2286



CHARLES R. ROGERS,

                                               Plaintiff - Appellant,

           versus


JO ANNE B. BARNHART, Commissioner of Social
Security,

                                                Defendant - Appellee.


Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Frederick P. Stamp, Jr.,
District Judge. (CA-04-164)


Argued:   October 24, 2006                 Decided:   February 2, 2007


Before WIDENER, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished opinion. Judge Shedd wrote the opinion, in
which Judge Widener and Judge King joined.


ARGUED: Michael G. Miskowiec, Charleston, West Virginia, for
Appellant.   Anne von Scheven, SOCIAL SECURITY ADMINISTRATION,
Office of General Counsel, Philadelphia, Pennsylvania, for
Appellee.   ON BRIEF: Donna L. Calvert, Regional Chief Counsel,
Region III, Nora Koch, Supervisory Attorney Regional Counsel,
SOCIAL SECURITY ADMINISTRATION, Office of General Counsel,
Philadelphia, Pennsylvania; Thomas E. Johnston, United States
Attorney, Helen Campbell Altmeyer, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
SHEDD, Circuit Judge:

      Charles R. Rogers filed this action challenging the decision

of the Commissioner of Social Security (“the Commissioner”) denying

his claim for social security disability benefits.                  The district

court granted summary judgment in favor of the Commissioner, and

Rogers now appeals.      Finding no error, we affirm.



                                        I

      The facts of this case are largely undisputed.                From 1975 to

1997, Rogers owned and operated a machine shop.                 In 1997, however,

the   shop    became    unprofitable,       and    Rogers    closed   the     shop.

Subsequently, Rogers found employment as a millwright, a position

he held until 2001.          During his work as a millwright, Rogers

developed a series of medical conditions. As relevant here, Rogers

suffered from frequent urination, a condition which was later

diagnosed as interstitial cystitis.           Due to the limitations caused

by his interstitial cystitis, Rogers was fired from his job as a

millwright in 2001.

      On April 3, 2003, Rogers applied for disability insurance

benefits under Title II of the Social Security Act, 42 U.S.C. §§

401-433,     alleging   disability    as     of    October   12,   2002,     due   to

interstitial     cystitis.     After    his       claim   was   administratively

denied,    Rogers   sought   review     by    an    administrative     law    judge

(“ALJ”).      On March 4, 2004, the ALJ heard evidence regarding


                                        3
Rogers’ claim.     At this hearing, Rogers presented abundant medical

testimony, including diagnoses from Drs. Joseph Kassis, Cynthia

Osborne, and Fulvio Franyutti, documenting his condition and his

need to go to the bathroom approximately every 30 minutes.                   The

medical evidence also indicated that, despite his limitations,

Rogers was capable of performing medium work.                Rogers’ testimony

shows that he continued to pursue such activities as hunting,

fishing, and gardening, although these were affected by his need to

go to the bathroom frequently.

     Vocational expert Timothy E. Mahler also testified at the

hearing.    Mahler stated that Rogers’ past work as a self-employed

machinist    was   medium,    skilled   work,   while    the      administrative

aspects of the work were sedentary in nature.            When questioned as

to whether Rogers could perform his past relevant work as a

machinist, Mahler testified that Rogers could not if he were in the

employ of another.       Mahler based this conclusion on the fact that

no employer would hire a machinist who would need to leave his post

to go to the bathroom every half hour.              Importantly, however,

Mahler     testified   that    an   individual    with       Rogers’   residual

functional    capacity    (“RFC”)   could   perform     as    a   self-employed

machine shop operator because “he could accommodate his routine.”

J.A. 19.

     Based on the medical evidence indicating that Rogers had an

RFC for performing medium work and on Mahler’s testimony, the ALJ


                                        4
concluded that Rogers could perform his past relevant work as a

self-employed machine shop operator.    Accordingly, the ALJ found

Rogers not disabled and denied benefits.      After exhausting his

administrative appeals, Rogers filed this action in the district

court.   The magistrate judge recommended that the Commissioner’s

decision be reversed.    In so recommending, the magistrate judge

relied largely on our decision in Cornett v. Califano, 590 F.2d 91

(4th Cir. 1978), in which we held that the Commissioner could not

find that a social security claimant was capable of performing work

in the national economy simply because he could start his own

business.   The district court subsequently declined to adopt the

magistrate judge’s recommendation and found that the Commissioner

properly denied benefits.   This appeal followed.



                                II

     We review de novo the district court’s decision to grant

summary judgment, applying the same standards which the district

court employed.   Nat’l City Bank of Indiana v. Turnbaugh, 463 F.3d

325, 329 (4th Cir. 2006).     Thus, we review the Commissioner’s

decision to deny benefits under the highly deferential substantial

evidence standard. 42 U.S.C. § 405(g). Pursuant to this standard,

we must accept the factual findings of the Commissioner if they are

supported by substantial evidence, which is defined as “such

relevant evidence as a reasonable mind might accept as adequate to


                                 5
support a conclusion.” Johnson v. Barnhart, 434 F.3d 650, 653 (4th

Cir.   2005).     Therefore,   “[w]here        conflicting   evidence     allows

reasonable minds to differ as to whether a claimant is disabled,”

we must defer to the decision of the Commissioner.              Id.



                                    III

       The Commissioner uses a five-step process to evaluate a claim

for disability insurance benefits.            Pursuant to this process, the

Commissioner asks, in sequence, whether the claimant: (1) worked

during   the    alleged   period   of       disability;   (2)   had   a   severe

impairment; (3) had an impairment that met or equaled the severity

of a listed impairment; (4) could return to his past relevant work;

and (5) if not, whether he could perform any other work in the

national economy.     20 C.F.R. § 404.1520.          The claimant bears the

burden of proof at steps one through four, but the burden shifts to

the Commissioner at step five.      Bowen v. Yuckert, 482 U.S. 137, 146

n.5 (1987).     Further, if a decision regarding disability can be

made at any step of the process, the inquiry ceases.              20 C.F.R. §

404.1520(a)(4).

       In the instant case, the ALJ found that Rogers met his burden

of proof at steps one through three.             However, the ALJ concluded

that Rogers failed to prove that he could not return to his past

relevant work at step four of the process because he is capable of




                                        6
performing as a self-employed machine shop operator.1                 Rogers

contends    that   this   finding   is   not   supported   by    substantial

evidence.      Specifically, Rogers asserts that he is unable to

perform his past relevant work because the vocational expert

testified that he could perform as a self-employed machinist only

if he accommodates his routine.           Rogers also asserts that our

decision in Cornett precludes a finding that the ability to perform

past work in a self-employed status satisfies step four of the

evaluation process.       We find Rogers’ arguments unpersuasive.

     The     Commissioner’s    finding    that    Rogers   is   capable   of

performing as a self-employed machine shop operator is clearly

supported by substantial evidence. The uncontradicted testimony of

Drs. Osborne and Franyutti confirms that Rogers is capable of

performing    medium   work   despite    his   diagnosis   of   interstitial

cystitis. Further, Mahler testified that an individual with an RFC

for medium work, but who needed to go to the bathroom every 30

minutes, is capable of performing as a self-employed machine shop

operator.     In contrast, Rogers presented no evidence to meet his

burden of showing that he cannot perform his past relevant work as

a self-employed machine operator.



     1
      The Commissioner’s regulations provide that past relevant
work includes “work that you have done within the past 15 years,
that was substantial gainful activity, and that lasted long enough
for you to learn to do it.” 20 C.F.R. § 404.1560(b)(1). Rogers
does not dispute that his work as a self-employed machinist
constitutes past relevant work.

                                     7
     Rogers does not contest the accuracy of Mahler’s testimony

regarding his RFC and his past relevant work.2        Rather, he contends

that the expert’s use of the term “accommodate” changes the nature

of his findings.      This is simply not the case.    While “accommodate”

may have been a poor choice of words given its use as a term of art

in the law governing disability benefits, it is clear that Mahler

was simply expressing his view that self-employment offers more

flexibility than working for another. Because of this flexibility,

Rogers could leave his post at a machine or at a desk to go to the

bathroom.     Thus, Rogers can perform in a self-employment setting

but he cannot perform while working for another.          The appropriate

inquiry at step four of the evaluation process is whether the

claimant’s past relevant work would, as he performed it, permit him

to perform it with his current impairment.           Substantial evidence

supports the ALJ’s conclusion that Rogers could perform his past

relevant work as a self-employed machine shop operator. Therefore,

Rogers failed to meet his burden of proving he is disabled.

     Rogers    next     contends   that   the   Commissioner’s   decision

contradicts our holding in Cornett v. Califano, 590 F.2d 91 (4th

Cir. 1978).    There, we found that, at step five of the evaluation

process, the Commissioner may not meet her burden of proving that



     2
      While Rogers initially argued that the ALJ erred in
determining that his past work as a self-employed machine shop
operator was performed at a medium exertional level, in his reply
brief he conceded that he has waived this argument.

                                     8
a claimant is capable of performing work in the national economy by

showing that a claimant has the skills to start his own business.

Id. at 94.

       For two reasons, we believe Cornett is inapposite here.

First, the Commissioner did not find that Rogers is not disabled

because he can create a type of work which he was capable of

performing. Instead, the Commissioner found that Rogers is capable

of performing his past relevant work as a self-employed machine

shop operator as he performed it due to the inherent flexibility of

self-employment.        Therefore, the Commissioner did not purport to

impose the same burden on Rogers which was placed on the claimant

in Cornett.

       Second, Cornett’s applicability here is limited because it

concerned a finding that a claimant was not disabled at step five

of the evaluation process rather than at step four.                        The Supreme

Court’s    decision     in    Barnhart    v.   Thomas,      540   U.S.     20   (2003),

illustrates the importance of this distinction.                    In Thomas, the

Court upheld the Commissioner’s finding that a claimant was not

disabled because she could perform her past relevant work, even

though    the   work    no    longer   existed.       The    Court    reached     this

conclusion      based    on     its    acceptance     of     the     Commissioner’s

determination that a finding that a claimant is able to perform

past     relevant   work      serves     as    an   “effective       and     efficient

administrative proxy for the claimant’s ability to do some work


                                          9
that does exist in the national economy.”         Id. at 28 (emphasis in

original).   In other words, even if the past relevant work which a

claimant is capable of performing does not exist, “in the vast

majority of cases” a claimant likely will be able to find other

similar work which does exist.       Id.

     Therefore,   at   step   four   of    the   evaluation   process   any

consideration of whether the claimant’s past relevant work is still

in existence is irrelevant.     All that is necessary is an inquiry

into whether a claimant is capable of performing his past relevant

work.   Because substantial evidence supports the Commissioner’s

finding that Rogers is capable of performing his past relevant work

as a self-employed machine shop operator, we must affirm the

Commissioner’s denial of benefits. As the Supreme Court has noted,

the Commissioner’s use of step four as an administrative proxy for

step five may result in “imperfect applications in particular

circumstances.” Id. at 29. Nevertheless, the Court accepted these

imperfect applications, and we are bound to do the same here.



                                     IV

     Based on the foregoing, we conclude that substantial evidence

supports the Commissioner’s finding that Rogers is not disabled.

Accordingly, the judgment of the district court is

                                                                AFFIRMED.




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