___________

No. 94-4044

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Dale F. Petersen, *

*

Plaintiff - Appellant, *

*

v. * Appeal from the United States

* District Court for the

Shirley S. Chater, Commissioner * Southern District of Iowa.

of Social Security, *

*

Defendant - Appellee. *

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 Submitted: September 13, 1995

 Filed: December 28, 1995 

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Before LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________

LOKEN, Circuit Judge.

Dale F. Petersen applied for disability benefits under Title II of

the Social Security Act, 42 U.S.C. § 423(a)(1), claiming disability since

March 15, 1991. After an administrative hearing that focused primarily on

medical issues, the Commissioner of Social Security denied the application

on the ground that Petersen is engaged in substantial gainful activity as

a self-employed farm manager. The district court affirmed, and Petersen

appeals. We conclude that the administrative record is inadequate to

support this finding and therefore remand.

Petersen worked twenty-five years as an educational consultant to the

University of Iowa. In 1991, the only year for which such information

appears in the record, Petersen earned $37,982 from the University,

including sick pay, and his wife earned $32,896 as a 
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public school teacher. The Petersens also own a 137-acre farm in Elkader,

Iowa, one hundred miles from their home in Iowa City. From 1974 to 1983,

they raised grains, hay, and occasionally livestock on this farm. From

1984 through 1986, they rented the farm to a tenant. In 1987, they

enrolled the entire farm in the United States Department of Agriculture's

ten-year Conservation Reserve Program ("CRP"). In 1991, the Petersens

received $11,642 in CRP payments, which USDA describes as "rental payments"

in its CRP regulations. See 7 C.F.R. § 704.16. 

The issue here is whether Petersen's activities in managing the

rented farm are "substantial gainful activity" that preclude a finding that

he is disabled. The question is not whether Petersen made a profit

farming, nor whether he has the physical ability to engage in more vigorous

farming activities. Rather, the Social Security Act requires us to focus

on whether Petersen has proved his "inability to engage in any substantial

gainful activity by reason of any medically determinable physical or mental

impairment." 42 U.S.C. § 423(d)(1)(A); see generally Callaghan v. Shalala,

992 F.2d 692 (7th Cir. 1993). The parties have not cited, nor have we

found, any case applying the Act to similar facts. 

The Commissioner's regulations deal in detail with the broad question

of substantial gainful activity. We begin with the basic definitional

regulation, 20 C.F.R. § 404.1572:

Substantial gainful activity is work activity that is

both substantial and gainful: 

(a) Substantial work activity. Substantial work activity

is work activity that involves doing significant physical or

mental activities. Your work may be substantial even if it is

done on a part-time basis or if you do less, get paid less, or

have less responsibility than when you worked before. 

(b) Gainful work activity. Gainful work activity is work

activity that you do for pay or profit. Work activity is

gainful if it is the kind of work usually 
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done for pay or profit, whether or not a profit is realized. 

Though most of Petersen's income prior to March 1991 came from his

contract with the University, we are concerned here with his activities as

a self-employed farm landlord. A specific regulation governs whether selfemployed persons are engaged in substantial gainful activity:

(a) If you are a self-employed person. . . . We consider

that you have engaged in substantial gainful activity if --

(1) Your work activity in terms of factors such as hours,

skills, energy output, efficiency, duties, and

responsibilities, is comparable to that of unimpaired

individuals in your community who are in the same or similar

businesses as their means of livelihood;

(2) Your work activity, although not comparable to that

of unimpaired individuals, is clearly worth the amount shown in

§ 404.1574(b)(2) when considered in terms of its value to the

business, or when compared to the salary that an owner would

pay to an employee to do the work you are doing; or

(3) You render services that are significant to the

operation of the business and receive substantial income from

the business.

20 C.F.R. § 404.1575(a)(1)-(3). These alternative tests were described in

great detail, with illustrative examples, in Social Security Ruling ("SSR")

83-34, reprinted in West's Social Security Reporting Service, Rulings 1983-

1991, at 106. 

The third test, § 404.1575(a)(3), requires evidence that the selfemployed claimant rendered significant services and received substantial

income. A farm landlord performs "significant services" if he "materially

participates" in the production or the management of the rented farm. 20

C.F.R. §§ 404.1575(b)(2); 404.1082(c). The ALJ found that Petersen engaged

in substantial 
 See 7 C.F.R. § 704.12 (1995) (obligations of a CRP

1

participant); Ottken v. Bowen, No. 88-4291-R, 1990 WL 5729, at *8-9

(D. Kan. Jan. 11, 1990) (farm landlord materially participated).

 In denying review, the Commissioner's Appeals Council noted

2

that Petersen's "material participation in the operation of the

farm . . . would be expected to result in substantial income if

performed for an employer." That, too, is not the analysis

prescribed in 20 C.F.R. § 404.1575(a)(3).

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gainful activity -- the ultimate question -- because he "materially

participated in management of his farm operation." That is an inadequate

analysis. While the record supports a finding that Petersen "materially

participated" in the management of his farm because he performed many of

the tasks necessary to fulfill his CRP obligations, the ALJ made no

1

finding that Petersen received "substantial income." Therefore, the

ultimate finding that he engaged in substantial gainful activity is

unsound.2

The ALJ's analytical oversight raises the question whether the record

would support the necessary substantial income finding. To answer that

question, we turn to the regulation defining "substantial income." This

time, we encounter two alternative tests. First, income after 1989 is

deemed substantial if it averaged more than $500 per month. See 20 C.F.R.

§ 404.1575(c)(1), which cross references 20 C.F.R. § 404.1574(b)(2)(vii).

Petersen had virtually no farm income in 1991 other than CRP payments.

While those payments of $11,642 easily surpassed the $500 per month

threshold, § 404.1575(c) expressly excludes from the substantial income

equation "any soil bank payments that were included as farm income." As

explained in SSR 83-34 § A(2)(b)(1), this exclusion was created for farms

which placed only some land in the soil bank conservation program:

[S]ince these activities are quite limited as compared with

regular farming operations, soil bank payments will not be

indicative of the extent of the management function involved in

the total enterprise. 
 See Pub. L. No. 89-321, § 601, 79 Stat. 1187, 1206 (1965);

3

the Food Security Act of 1985, Pub. L. No. 99-198, § 1231, 99 Stat.

1354, 1509 (1985). 

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The soil bank program ended in 1965; CRP was enacted in 1985. The 3

programs have obvious similarities -- indeed, CRP has been called "Son of

Soil Bank." See 134 Cong. Rec. 17115 (1988). But we deal with regulations

promulgated prior to 1985 that refer only to "soil bank payments." Whether

CRP payments should also be excluded from the substantial income

determination, and if so, whether CRP payments are excluded even if the

farm had no other income, are questions that must be addressed in the first

instance by the agency. Thus, we may not affirm on this ground. 

The Commissioner urges us to affirm under the second alternative test

for determining substantial income. Under that test, income is substantial

if 

the livelihood which you get from the business is either

comparable to what it was before you became severely impaired

or is comparable to that of unimpaired self-employed persons in

your community who are in the same or similar business as their

means of livelihood.

20 C.F.R. § 404.1575(c)(2). The Commissioner argues that Petersen's income

from the farm is substantial "because it is comparable to that he derived

from the farm prior to his alleged onset of disability." On this record,

we disagree.

There is no evidence in the record of the CRP payments Petersen

received before March 1991. The Commissioner urges us to assume that his

CRP payments have been constant since 1987. We decline to make a critical

fact assumption on an important issue that the ALJ overlooked. Moreover,

even if Petersen's CRP payments were constant, additional fact questions

remain. Section 404.1575(c)(2) is concerned with the "livelihood which you

get from the business" before and after the alleged disability. The 
 Likewise, the record is inadequate to determine whether

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Petersen's farm work activity satisfies the remaining selfemployment test, found in § 404.1575(a)(2). Under this test, work

activity is substantial gainful activity if it is worth more than

$500 per month "when compared to the salary that an owner would pay

to an employee to do the work you are doing." Given the net farm

loss of $1,015 the Petersens reported on their 1991 federal income

tax return, it seems doubtful that a third party landowner would

have paid Petersen an additional $6,000 to manage that venture.

But tax losses are not always what they seem, so this is another

fact-intensive question that we leave open on remand. 

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Petersens reported a net farm loss of $1,015 on their federal income tax

return in 1991. In other words, the CRP payments, while substantial, only

covered their farm expenses; Petersen's after tax income came from his

University position. In these circumstances, were the CRP payments

Petersen's "livelihood," and was the 137-acre farm his "business"?

Particularly given the total absence of relevant case law, these again are

questions that should be decided in the first instance by the agency on an

adequate fact record. 

Alternatively, the Commissioner argues that Petersen's work activity

as a farm manager is substantial gainful activity because it is "comparable

to that of unimpaired individuals in the community who are in the same or

similar businesses as their means of livelihood." 20 C.F.R.

§ 404.1575(a)(1). However, there is no evidence in the record as to (i)

whether there is anyone in the Elkader, Iowa, community whose livelihood

consists entirely of CRP payments from a farm of comparable size, and (ii)

if there is such an unimpaired person, how his or her activities in

managing such a business would compare to Petersen's work activities. The

record does contain a letter from the local ASCS Executive Director

advising that there are 47,000 acres of Clayton County, Iowa, enrolled in

the CRP. But without more findings and analysis, the ALJ's decision cannot

be affirmed under § 404.1575(a)(1). 

4

Focusing almost exclusively on Petersen's medical problems, the

parties and the ALJ assembled an administrative record that 
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does not permit meaningful review of the novel substantial gainful activity

issue raised by Petersen's farm activities. Therefore, we remand to the

district court with directions to remand to the Commissioner for further

proceedings consistent with this opinion. See Payton v. Shalala, 25 F.3d

684, 686 (8th Cir. 1994). 

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.