Pekrul v. Barnhart

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
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United States Court of Appeals
Fifth Circuit
F I L E D
November 10, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-10233
DAVID SCOT PEKRUL
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART,
Commissioner of Social Security,
Defendant-Appellee,
Appeal from the United States District Court for
the Northern District of Texas
_________________________________________________________
Before REAVLEY, GARZA and BENAVIDES Circuit Judges.
PER CURIAM:*
David Scot Pekrul appeals the district court’s decision affirming the
Commissioner’s denial of social security disability benefits. We affirm for the
following reasons:

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1. We agree with the analysis offered in the magistrate judge’s findings,
conclusions, and recommendation and the district court’s order accepting the
magistrate’s recommendation.
2. Pekrul first argues that the Commissioner failed to meet her burden of
proof because evidence of the cumulative number of jobs exist in the national
economy and the State of Texas fails to take into account the number of jobs
existing in Pekrul’s region–Ellis County, Texas. Under 42 U.S.C. §
423(d)(2)(A) and 20 C.F.R. § 416.966, work exists in significant numbers in
the national economy if it exists in significant numbers in either the region
where the claimant lives or in other regions of the country. In light of the
Vocational Expert’s (“VE”) testimony that Pekrul could perform the jobs of
election clerk, call-out operator, and surveillance-system monitor and that
79,900 such jobs exist in the national economy, and that 5,983 such jobs exist
in the State of Texas, substantial evidence supports the Commissioner’s
finding that Pekrul is not entitled to Social Security disability benefits.
3. Pekrul next argues that the job of election clerk exists only at election
time. He also contends that he unable to perform the jobs of call-out operator
and surveillance-system monitor. The ALJ found that Pekrul
has the residual functional capacity to lift and/or carry 5 pounds

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frequently and 10 pounds occasionally, frequently to crouch, kneel
and crawl, occasionally to climb, balance and stoop, and
occasionally to reach, handle and finger. Therefore, [Pekrul] has
the residual functional capacity [RFC] to perform a limited range
of sedentary work.
The jobs of election clerk, call-out operator, and surveillance-system
monitor are sedentary jobs, see U.S. DEP’T OF LABOR, DICTIONARY OF
OCCUPATIONAL TITLES (DOT) §§ 205.367-030, 237.367-014, 379.367-010
(4th Ed., Rev. 1991), which the regulations define as jobs that involve “lifting
no more than 10 pounds at a time and occasionally lifting or carrying articles
like docket files, ledgers, and small tools.” 20 C.F.R. § 404.1567(a). The
three jobs also involve speaking on the telephone, operating controls, and
submitting data. See DOT §§ 205.367-030, 237.367-014, 379.367-010.
These tasks are not inconsistent with the RFC found by the ALJ.
Further, the ALJ properly asked the VE “are there a substantial
number–are there any occupations in the national economy that could be
performed by a hypothetical individual having the [RFC] to perform a limited
range of work with only occasional reaching, handling, and fingering.” The
VE responded that Pekrul could work as an election clerk, call-out operator,
or surveillance-system monitor. Thus, the ALJ’s question to the VE
incorporated the limitations recognized in the RFC assessments, and the

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assessments of Pekrul’s abilities constitute substantial evidence supporting
the determination that Pekrul could perform the three jobs listed.
4. Pekrul next argues that the ALJ did not appropriately consider his
impairment over time and relied solely on the opinion of Dr. Goldberg. We
find that the ALJ’s decision reflects an evaluation of all of the information
relevant to Pekrul’s claims. The ALJ chronologically considered the medical
evidence, emphasizing dates that Pekrul was seen by various doctors and the
results of their reports. The ALJ noted the types of treatment Pekrul received
through time and the dates of various diagnostic tests performed.
Accordingly, there is no basis in fact for Pekrul’s assertion that the ALJ did
not appropriately consider his impairment during the entire relevant period or
relied solely on the opinion of Dr. Goldberg.
5. Pekrul further argues that the ALJ erred by failing to appropriately
consider whether he could sustain work activity due to the episodic nature of
his symptoms and surgeries. The ALJ’s determination that Pekrul had the
RFC to perform sedentary work is a determination that he is able to sustain
work-related activities on a “regular and continuing basis,” meaning “8 hours
a day for 5 days a week.” See Social Security Ruling 96-8p (July 2, 1996);
20 C.F.R. §§ 404.1545, 416.945. The evidence did not show that Pekrul’s

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ability to maintain employment would be compromised despite his ability to
perform employment as an initial matter, and there is no indication that the
ALJ did not understand that an ability to maintain employment is inherent in
the definition of residual functional capacity. See Dunbar v. Barnhart, 330
F.3d 670, 672 (5th Cir. 2003). Therefore, the ALJ was not required to make
a specific finding with regard to Pekrul’s ability to maintain employment. Id.
6. Pekrul contends that the RFC assessment performed by Dr. Goldberg
overstated what he was capable of doing on a sustained, daily basis. Pekrul
argues that the ALJ failed to consider his endurance, and Dr. Goldberg failed
to test his endurance. In addition, Pekrul argues that Dr. Goldberg failed to
account for his inability to use the telephone, to use the computer to do
repetitive tasks, and to use vibrating tools, and failed to address his need to
frequently rest his hands. We find Pekrul’s arguments without merit. Dr.
Goldberg tested Pekrul’s grip on the dynamometer and noticed considerable
weakness. However, Dr. Goldberg noted no muscle atrophy, wasting,
arthritis, subluxation, deformity, ankleosis, effusion, swelling, or heat. In
addition, Dr. Goldberg completed a checklist relevant to Pekrul’s RFC.
Accordingly, Pekrul has not shown that Dr. Goldberg’s report was inadequate

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to determine “the most [he] can do despite [his] limitations.” 20 C.F.R. §
404.1545(a) (defining RFC).
7. Pekrul also contends that the ALJ erred by failing to give proper
weight to Dr. Zehr’s opinions of September 13, 2000, August 12, 2002, and
February 18, 2002, regarding his disability. Dr. Zehr indicated on September
13, 2000, that Pekrul could not work and noted that Pekrul’s employer had no
positions available that would accommodate Pekrul’s restrictions. This
finding has no special significance. See Frank v. Barnhart, 326 F.3d 618,
620 (5th Cir. 2003) (“Among the opinions by treating doctors that have no
special significance are determinations that an applicant is ‘disabled’ or
‘unable to work.’”). Further, Dr. Zehr’s opinions of August 12, 2002, and
February 18, 2002 were not included in the record before the ALJ, and
neither opinion contained any details regarding Pekrul’s condition.
Accordingly, Pekrul has failed to demonstrate error regarding the weight
given to Dr. Zehr’s opinion.
8. Pekrul argues that the Appeals Council erred by failing to remand his
case to the ALJ based on a “Temporary Total Disability Deferment Request”
form that he submitted to the Appeals Council after the ALJ denied him
benefits. This form contained no details regarding Pekrul’s condition.

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Therefore, Pekrul cannot demonstrate any prejudice resulting because the
Appeals Council did not remand this case. See Shave v. Apfel, 238 F.3d 592,
597 (5th Cir. 2001).
AFFIRMED.

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