*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not be published and is not precedent except under the limited circumstances set forth in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

FILED

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.