* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 1 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JIMMY L. MORRIS,

Plaintiff-Appellant,

v. KENNETH S. APFEL, Commissioner of Social Security,

Defendant-Appellee. No. 99-7017 (D.C. No. CIV-98-183-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK , BARRETT , and McKAY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision 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.-2-

Claimant Jimmy L. Morris appeals from an order of t he district court affirming the Commissioner’s determination that he was not eligible for Social Security disability benefits. The administrative l aw judge (ALJ) denied benefits at step one, holding that claimant had engaged in subs tantial 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 th e magistrate judge affirming the ALJ’s decision. On appeal, plaintiff argues the ALJ’s determination is not supported by substantial evidence. We exercise jur isdiction pursuant to 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), and we affirm. “We review the [Commissioner’s] decision to determi ne whether [his] factual findings are supported by substantial evide nce in the record viewed as a whole and whether [he] applied the correct legal st andards. Substantial evidence is such relevant evidence as a reasonable mind migh t 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 omi tted). At step one of the sequential analysis, the claiman t 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-3-

Cir. 1989) (claimant engaged in substantial gainful activity will not be found disabled no matter how severe his impairments). Su bstantial gainful activity is work that is both substantial, i.e., involving “sig nificant 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; andgainful, 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 disab led 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 tes tified 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 assign ments, the ALJ found that claimant had many years of experience in the construction and subcontracting business and had been significantly involved.1 The ALJ noted that the tax returns submitted by cla imant were incomplete

and the claimant did not comply with the ALJ’s requ est that he submit complete tax returns for the years 1992-1995. **See** R. Vol. II at 18. -4- The claimant also testified that he had purchased twenty acres of farm land and had between twelve and fifteen head of cattle i n 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 wher e 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 indic ated claimant’s involvement in both businesses and showed gross inc ome 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 minimal ly involved in the operation of the business, claimant was the “guiding force be hind the business based on his statements, his past experience in the business, an d his tax returns.” R. Vol. II at 18. On appeal, claimant alleges that the ALJ’s dismissa l of claimant’s testimony that his wife solely ran the truck contracting busi ness amounted to a finding of-5-

incredibility which was not supported by substantia l 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 addres s this argument, however, because, as claimant readily admits, the ALJ did no t 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 g ainful activity subsequent to the date he last met the insured status requirement s of the Social Security Act. In reaching this conclusion, the ALJ appropriately con sidered claimant’s involvement in the cattle farming and construction/truck contra cting 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 dete rminations. In order to determine whether a self-employed claimant is perfo rming substantial gainful activity, the Commissioner examines the claimant's activities and their value to his business, including (1) whether the claimant’s workactivity in terms of “hours, skills, energy output, efficiency, duties, and resp onsibilities, is comparable to that of unimpaired individuals” in the same or a similarbusiness; (2) if the work activity is not comparable, whether, in terms of it s value to the business, the activity is worth [$500 per month]; or (3) whetherthe claimant provides “services that are significant to the operation of business” and receives substantial income-6-

therefrom. See 20 C.F.R. § 404.1575(a). The Commissioner also co nsiders whether the claimant performs any “[s]upervisory, m anagerial, advisory or other significant personal services.” Id. § 404.1573(d). Income alone is not determinative, and the Commissioner will evaluate t he claimant’s work activity based on the value of claimant’s services to the bu siness 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 claim ant submit his complete tax returns for the years 1992-95. In so doing, the AL J informed claimant that the incomplete tax returns he had submitted were insuff icient 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 do cuments 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 inform ation 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 th at the ALJ’s analysis was-7-

faulty. It is clear from our reading of the recordthat the ALJ’s analysis was as thorough as possible with the information he was pr ovided. The ALJ’s decision clearly set forth the regulatoryframework 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 incompl ete tax returns, and his finding that claimant rendered significant mental and physi cal activities to the businesses. We therefore determine that the ALJ reasonably conc luded that subsequent to the time he was last insured, June 30, 1990, claimant h ad 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 Distri ct Court for the Eastern District of Oklahoma is AFFIRMED.

Entered for the Court

Monroe G. McKay Circuit Judge