Kenneth S. Apfel has been appointed to serve as Commissioner of the Socia l 1 Security Administration and is automatically substi tuted as appellee. See Fed. R. App. P. 43(c)(1). The Honorable Michael J. Davis, United States District Judge for the District 2 of Minnesota, sitting by designation.



## United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 97-3379

___________ Dennis Terrell, *

Plaintiff - Appellant, * Appeal from the United States

v. * Western District of Missouri. Kenneth S. Apfel, Commissioner of * Social Security, * 1 Defendant - Appellee. * *

* District Court for the

*

*

___________ Submitted: February 13, 1998 Filed: June 5, 1998

___________ Before LOKEN and HANSEN, Circuit Judges, and DAVIS, District Judge. 2

___________ HANSEN, Circuit Judge.The Honora ble Russell G. Clark, United States District Judge for the Western 3 District of Missouri. -2- Dennis Terrell appeals the district court’s order affirming the denial of hi s 3 application for Supplemental Security Income (SSI) benefits under the Social Security Act, 42 U.S.C. § 1381a (1994). We affirm.
Terrell, who was forty-two years old at the time of the administrative hearin g rega rding his claim for SSI benefits, has a ninth grade education. He has previousl y worked as a musician, logger, truck driver, loader operator, security guard, an d absentee owner/lessor of a logging truck. According to medical records, Terrell first injured his back in 1980 when he was kicked by a horse. He has suffered several other
severe injuries to his back since that time and, as a result, has undergone multipl e surgeries on his back. Terre ll also has a personality disorder which has caused him to have slight deficiencies in his daily activities and social functioning. However, thi s perso nality disorder has not caused Terrell to withdraw from work settings. Terrel l
w a s addicted to pain killers at one time, although he is no longer dependent on them. Documents show that Terrell takes methadone to control this addiction.
Terrell owned a logging truck from 1988 until 1993. Terrell earned money by driv ing the truck and running a log loader until 1992 when injuries to his bac k prevented him from continuing to drive the truck. When he could no longer drive the truck, Terrell’s brother, al ong with others, began to use Terrell’s truck to deliver logs. Terrell was paid for the use of his logging truck by his bro ther and others. On his 1992 federal in come tax return, Terrell reported that he earned $7,810 by leasing out hi s logging truck. On his 1993 return, he reported income of $8,186 from his logging truck op eration. Terrell testified he was responsible for keeping the truck licensed an d insured.-3-

Hos pital records from January 1993 show that Terrell was injured “when h e slipped off a log loader.” ( R. at 284.) Terrell’s doctor’s notes, taken in August 1992, state that Terrell “runs a logging company for himself.” (R. at 260.) The notes als o state that Terrell “has recently had troubles because his truck engine blew [and] was repairedat great expense” to Terrell. (R. at 260.) In a vocational report prepared in 1994, T errell stated that he worked as a truck driver from 1988 to 1993, and that this work involved driving a logging truck and running a log loader. (R. at 99-100.) July 1994 medical records report that Terrell had recently re-injured his back when he threw a chain over a logging truck. (R. at 304.) Other documents in the record indicate that Terrell was working with machinery and was loadi ng logs during the time he claims he
no long er drove his logging truck and simply owned and leased it. (R. at 266, 269 , 304.) Terrell filed the present applicati on for SSI benefits on July 6, 1994, alleging he has been disabled since July 1980. His cl aim was denied initially on August 29, 1994, and on reconsiderat

ion on January 10, 1995. Terrell then filed a request for a hearing befor e an administrative law judge (ALJ), and a hearing was held on November 9 , 1995. The ALJ denied Terrell SSI benefits in an order dated December 2, 1995, ruling that Terrell could return to his past relevant work as an absentee owner/lessor of a logging truck. After exhausting his administrative remedies, Terrell sought judicia l review in th e district court. On July 15, 1997, the district court granted th e Commissio ner’s motion for summary judgment, ruling the ALJ’s order denying SS I benefits was supported by substantial evidence. Terrell appeals.
Ter rell’s only claim on appeal is that the district court erred in upholding th e ALJ’s de nial of SSI benefits because the ALJ incorrectly found that Terrell coul d perform his past relevant work as an absentee tr uck owner/lessor. Specifically, Terrell argues that being an absentee truck owner/lessor does not constitute past relevant work.-4-

Ourreview is limited to whether the Commissioner’s denial of benefits i s sup ported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g) ; Grebenick v. Chater , 121 F.3d 11 93, 1197-98 (8th Cir. 1997). “‘Substantial evidence is that which a reasonable mind would find as adequate to support the Commissioner’s decision.’” Kisling v. Chater , 105 F.3d 1255, 1257 ( 8th Cir. 1997) (quoting Comstock v. Chater , 91 F.3d 1143, 1145 (8th Cir.1996)). We must evaluate the evidence in the record tha t supports the ALJ’s decision as well as that which detracts from it

. Greb enick , 121 F.3d at 1193. “‘We may not reverse merely because substantia l evidence would have supported an opposite deci sion.’” Id. (quoting Gaddis v. Chater , 76 F.3d 893, 895 (8th Cir. 1996)). Thus, we must determine if there was substantial evidence in the record as a whole to support the ALJ’ s determination that Terrell could perform his past relevant work.
An ALJ uses the familiar five -step sequential evaluation process to determine if a claimant is eligibl e for SSI benefits. Idat 1198; 20 C.F.R. 416.920 (1997). At step fourof th is process, the claimant has the burden of proving that he or she canno t perform his or her past relevant work. Frankl v. Shalala , 47 F.3d 935, 937 (8th Cir

. 1995).

Inthis case, the ALJ began his analysis by presuming that Terrell was no t presently engaged in substantial gainful activity. The ALJ next found that Terrell had severe impairments, but that none of these impairments or combination of impairments metor equaled the impairments listed in the regulations and that his complaints o f disablin g pain were not credible. The ALJ then determined that based on Terrell’ s re sidual functional capacity he could perform his past relevant work as an absente e truckow ner/lessor. Because he found that Terrell could perform his past relevan t work, the ALJ denied Terrell’s claim for SSI benefits.

In deter mining whether a claimant can perform his or her past relevant work , social security regulations provide that the ALJ should normally only consider work-5-

that meets the following requirements: (1) the cla imant performed the work in the prior 15 years; (2) the work lasted long enough for the claimant to learn to do it; and (3) the work was “substantial gainfu l activity.” See 20 C.F.R. § 416.965(a); Rater v. Chater , 73 F.3d 796 , 798 (8th Cir. 1996); see also Social Security Ruling 82-61 (1982)

. “Substantial gainful activity” is defined by the Social Security regulations as work that “[i]nvolves doing significant and productive physical or mental duties” and “is done (or is intended) for pay or profit.” 20 C.F.R. § 416.910; see also 20 C.F.R. § 416.972

. Other re gulations provide that “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 yo u worked before.” 20 C.F.R. § 416.972(a).
Terrell concedes that his prior work as an absentee truck owner/lessor wa s gainful—the record shows that Terrell earned income from the leasing of his logging truck to others. However, Terrell claims the record does not support a determination that his position as an absentee truck owner/lessor constituted “substantial” work. He cites his own testimony describing his absentee truck owner/lessor duties as simpl y receiving payments from the people who drove the truck for him and keeping the truck lic encedand insured. These activities, Terrell claims, are merely evidence of th e ownership of a capital asset and do no t involve significant physical or mental duties as req uiredby the regulations defining substantial work. See 20 C.F.R. §§ 416.910 , 416.972. We rej ect Terrell’s argument because our examination of the record convinces us that there is substantial evidence to support the determination that Terrell’s position as an absentee truck

owner/lessor constitutes substantial work. We note that the ALJ specifically fou nd that Terrell’s testimony was inconsistent and was not credible. (R. at 14.) We will not disturb this credibility determination. Grebenick , 1 21 F.3d at 1200. The record shows Terrell was an active participant in th e operation of his logging truck while he was an absentee truck ow ner/lessor. Documents show that Terrell’s work as an absentee truck owner/lessor involved using construction machinery, operating the-6-

logging truck, and running a log loader. (R. at 266, 269, 304.) Terrell was als o responsible for keeping his logging truck licenced and insured, and he was responsible for having the truck repaired. (R. at 44-45, 260) . Taken together, this evidence shows th at Terrell was performing significant mental and physical activities in the operation of his logging truck. Therefore, there is substantial evidence tha t Terrell’s past relevant work as a truck owner/lessor constitutes substantial gainful employment. Accordingly, we affirm the judgment of the district court. A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.