Dennis Terrell v. John Callahan ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 97-3379
___________
Dennis Terrell, *
*
Plaintiff - Appellant, * Appeal from the United States
* District Court for the
v. * Western District of Missouri.
*
Kenneth S. Apfel, Commissioner of *
Social Security,1 *
*
Defendant - Appellee. *
___________
Submitted: February 13, 1998
Filed: June 5, 1998
___________
Before LOKEN and HANSEN, Circuit Judges, and DAVIS,2 District Judge.
___________
HANSEN, Circuit Judge.
1
Kenneth S. Apfel has been appointed to serve as Commissioner of the Social
Security Administration and is automatically substituted as appellee. See Fed. R. App.
P. 43(c)(1).
2
The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota, sitting by designation.
Dennis Terrell appeals the district court’s3 order affirming the denial of his
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 hearing
regarding his claim for SSI benefits, has a ninth grade education. He has previously
worked as a musician, logger, truck driver, loader operator, security guard, and
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 multiple
surgeries on his back. Terrell also has a personality disorder which has caused him to
have slight deficiencies in his daily activities and social functioning. However, this
personality disorder has not caused Terrell to withdraw from work settings. Terrell
was 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
driving the truck and running a log loader until 1992 when injuries to his back
prevented him from continuing to drive the truck. When he could no longer drive the
truck, Terrell’s brother, along with others, began to use Terrell’s truck to deliver logs.
Terrell was paid for the use of his logging truck by his brother and others. On his 1992
federal income tax return, Terrell reported that he earned $7,810 by leasing out his
logging truck. On his 1993 return, he reported income of $8,186 from his logging truck
operation. Terrell testified he was responsible for keeping the truck licensed and
insured.
3
The Honorable Russell G. Clark, United States District Judge for the Western
District of Missouri.
-2-
Hospital records from January 1993 show that Terrell was injured “when he
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 also
state that Terrell “has recently had troubles because his truck engine blew [and] was
repaired at great expense” to Terrell. (R. at 260.) In a vocational report prepared in
1994, Terrell 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 loading logs during the time he claims he
no longer drove his logging truck and simply owned and leased it. (R. at 266, 269,
304.)
Terrell filed the present application for SSI benefits on July 6, 1994, alleging he
has been disabled since July 1980. His claim was denied initially on August 29, 1994,
and on reconsideration on January 10, 1995. Terrell then filed a request for a hearing
before 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 judicial
review in the district court. On July 15, 1997, the district court granted the
Commissioner’s motion for summary judgment, ruling the ALJ’s order denying SSI
benefits was supported by substantial evidence. Terrell appeals.
Terrell’s only claim on appeal is that the district court erred in upholding the
ALJ’s denial of SSI benefits because the ALJ incorrectly found that Terrell could
perform his past relevant work as an absentee truck owner/lessor. Specifically, Terrell
argues that being an absentee truck owner/lessor does not constitute past relevant work.
-3-
Our review is limited to whether the Commissioner’s denial of benefits is
supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g);
Grebenick v. Chater, 121 F.3d 1193, 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 that supports the ALJ’s decision as well as that which detracts from it.
Grebenick, 121 F.3d at 1193. “‘We may not reverse merely because substantial
evidence would have supported an opposite decision.’” 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 eligible for SSI benefits. Id at 1198; 20 C.F.R. 416.920 (1997). At step
four of this process, the claimant has the burden of proving that he or she cannot
perform his or her past relevant work. Frankl v. Shalala, 47 F.3d 935, 937 (8th Cir.
1995).
In this case, the ALJ began his analysis by presuming that Terrell was not
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
met or equaled the impairments listed in the regulations and that his complaints of
disabling pain were not credible. The ALJ then determined that based on Terrell’s
residual functional capacity he could perform his past relevant work as an absentee
truck owner/lessor. Because he found that Terrell could perform his past relevant
work, the ALJ denied Terrell’s claim for SSI benefits.
In determining whether a claimant can perform his or her past relevant work,
social security regulations provide that the ALJ should normally only consider work
-4-
that meets the following requirements: (1) the claimant 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 gainful 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 regulations 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 you
worked before.” 20 C.F.R. § 416.972(a).
Terrell concedes that his prior work as an absentee truck owner/lessor was
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 simply
receiving payments from the people who drove the truck for him and keeping the truck
licenced and insured. These activities, Terrell claims, are merely evidence of the
ownership of a capital asset and do not involve significant physical or mental duties as
required by the regulations defining substantial work. See 20 C.F.R. §§ 416.910,
416.972.
We reject 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 found that Terrell’s testimony was inconsistent and was not credible. (R.
at 14.) We will not disturb this credibility determination. Grebenick, 121 F.3d at 1200.
The record shows Terrell was an active participant in the operation of his logging truck
while he was an absentee truck owner/lessor. Documents show that Terrell’s work as
an absentee truck owner/lessor involved using construction machinery, operating the
-5-
logging truck, and running a log loader. (R. at 266, 269, 304.) Terrell was also
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
that Terrell was performing significant mental and physical activities in the operation
of his logging truck. Therefore, there is substantial evidence that 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.
-6-