                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           FEB 8 1999
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    FRED J. UHLMANSIEK,

                Plaintiff-Appellant,

    v.                                                  No. 98-2150
                                                (D.C. No. CIV-97-556-JP/LCS)
    KENNETH S. APFEL, Commissioner,                       (D. N.M.)
    Social Security Administration,

                Defendant-Appellee.




                             ORDER AND JUDGMENT          *




Before ANDERSON , KELLY , and LUCERO , 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      This order and judgment is not binding precedent, except under the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 appeals the district court’s affirmance of the Commissioner’s

denial of disability benefits. Plaintiff alleged that he has been disabled since

December 15, 1985, as the result of the residual effects of surgical and radiation

treatment for maxillary sinus cancer. The administrative law judge (ALJ)

determined, at step four of the applicable analysis, that plaintiff remained capable

of performing his past relevant real estate work through the date his insured status

expired, June 30, 1989. The Appeals Council denied review, making the ALJ’s

determination the Commissioner’s final decision.

      This court reviews the Commissioner’s decision only to determine whether

he applied the law correctly and whether the record contains substantial evidence

to support the decision. See Bean v. Chater, 77 F.3d 1210, 1213 (10th Cir. 1995).

At step four, the claimant has the burden of establishing that he cannot perform

his past relevant work. See Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th

Cir. 1993).

      On appeal, plaintiff argues that his real estate work should not be

considered past relevant work, and that the ALJ failed to perform a proper step

four analysis. Upon consideration of the record and the parties’ appellate

arguments, we affirm.

      The ALJ properly deemed plaintiff’s real estate work, occurring in 1984

and 1985, past relevant work. See 20 C.F.R. § 404.1465(a) (relevant work


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experience must be substantial gainful activity); id. § 404.1575 (discussing

relevant factors for determining whether self-employed individual has engaged in

substantial gainful activity, noting that income alone is not determinative). The

ALJ’s decision clearly refers only to plaintiff’s real estate work in 1990-92,

following his cancer treatment, as less than substantial gainful activity.

      Further, the ALJ did properly perform a step four analysis, see Winfrey v.

Chater, 92 F.3d 1017, 1023 (10th Cir. 1996), and the record contains substantial

evidence to support the denial of benefits.

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

Mexico is, therefore, AFFIRMED.



                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge




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