Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Pistole v. Astrue

August 10, 2010


The opinion of the court was delivered by: Michael M. Mihm United States District Judge


This matter is now before the Court on Plaintiff's Motion for Summary Reversal and the Commissioner's Motion to Affirm. For the reasons set forth below, Plaintiff's Motion for Summary Reversal [#14] is DENIED, and the Commissioner's Motion to Affirm [#16] is GRANTED.


Plaintiff, David Pistole ("Pistole"), was 30 years' old at the time of his administrative hearing. (R309) He is 5'10" and weighs approximately 280 pounds. Id. He is not married and has no children. Id. He lives with his brother in a house. Id. Pistole was driven to the hearing by his aunt. Id. He has not used alcohol or drugs since the end of 2005. (R315) He has a high school diploma and can read and write in the English language. (R311) Pistole last worked as a salesman/stocker for the Walmart Store in December 2006. Id. In the past, he was employed performing front desk work, night auditing, and housekeeping in a hotel, working for a janitorial service, and setting up/serving at catering events. (R313-13)

Pistole claims that he is unable to work because he has anxiety attacks, starts hearing voices, and cannot function. On March 3, 2006, he applied for disability insurance benefits ("DIB") and supplemental security income ("SSI"), alleging disability that began on July 16, 2005.*fn1 His application was denied both initially and on reconsideration. Pistole requested a hearing before an administrative law judge ("ALJ"). A hearing was held before ALJ Barbara Welsch on February 1, 2007, at which Pistole, who was represented by counsel, and vocational expert ("VE") Dennis Gustafson appeared and gave testimony.

At the time of the hearing, Pistole was taking medications for his condition. (R314) He testified that the medications were helping him and that he did not suffer any side effects from his medications. Id. His brother reminds him to take his medications. (R321) He sees a psychiatrist, who prescribes his "mental medicine" every three months, talks to a counselor every week, and sees the counselor every other week. (R315)

On a typical day, Pistole testified that he stays up late with his brother, who works second shift, so he doesn't get up until about 11:00am or Noon. (R316) He fixes lunch for his brother and does a little bit of house cleaning or laundry until he gets tired and has to lay back down for a couple of hours. Id. He watches TV until his brother gets home and then fixes dinner. Id. Pistole can do laundry, dishes, grocery shop, mow/weed the lawn, and take care of his two dogs. (R316, 318-19) He is able to feed, bathe, and dress himself. (R318) He has a valid driver's license and drives himself to the grocery store once or twice a week. (R316) He also attends church at least once or twice a week and is able to use a computer to go online. (R317-18) He enjoys going to movies and playing video games on X-box. (R319)

Pistole stated that he does not see his other family members very often because he just doesn't feel up to it. Id. He feels depressed because he doesn't have a job and "can't really do anything with them." Id. He mostly stays home because he gets worried about a lot of people being around him. (R320)

The ALJ posed a hypothetical question to the VE:

Q: I would like you to assume an individual who's 30 years old with a high school education, past relevant work as you have outlined, an individual who has no exertional limitations, but would be limited to jobs which are routine and repetitive in nature without contact with the public and no work at unprotected heights or around unprotected hazardous machinery. How would these restrictions [sic] the performance of the past relevant work?

A: Okay. Jobs with no public contact essentially would meet that and be routine. The cleaner commercial or institutional the housecleaner I'm going to rule out because in a hotel you're going to contact the public from time to time.

Q: Okay.

A: The cook/helper would be consistent with that.

Q:All right. And by no contact with the public I probably should have said no interaction with the public.

A: Right.

Q: Meaning the public could be around, but no interacting with them. Is that how you understood it?

A: Yes, that's essentially - -

Q: Okay.

A: - - yeah.

Q: Okay. All right.

A: The cook/helper would be consistent with that as would be the sandwich maker. The job that was described in the industrial job, I put under material handling because it indicated it was a heavy job, but probably as it was performed it wasn't skilled and it appeared to be routine - -

Q: Okay.

A: - - as some material handling jobs would be. The classification is up to an SVP of 3 for more complex material handling. The job as described I believe would meet that hypothetical.

Q: All right.

A: Those would be the ones.

Q: If we go to the area of unskilled entry-level jobs can you give me some examples that would fit the hypothetical?

A: Again, are we talking about routine repetitive?

Q: Yes.

A: And no public ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.