CHAPTER 9
A VOCATIONAL EXPERT WITNESS
The ALJ must assess
whether the claimant has transferable skills pursuant to 20 C.F.R. §
404.1568(d)(1)-(3) and Social Security Ruling (SSR) 82-41. The claimant is
considered to have transferable skills when skilled or semi-skilled work
activities the claimant did in past work can be used to meet the requirements
of skilled or semi-skilled work activities of other jobs or kids of work.
According to the statute:
Transferability is most
probable and meaningful among jobs in which-
(i) The same or a lesser degree of skill is
required;
(ii) The same or similar tools and machines are
used; and
(iii) The same or similar raw materials, products,
processes, or services are involved.
20 C.F.R. §
404.1568(d)(2)
There are varying
degrees of transferability. All of the subsets of 1568(d)(2) need not be met
for skills to be transferable. “There are degrees of transferability of skills
ranging from very close similarities to remote and incidental similarities
among jobs. A complete similarity of all three factors is not necessary for
transferability.” 20 C.F.R. § 404.1568(d)(3).
The ALJ takes
administrative notice of reliable job information available from various
governmental publications such as the DOT, published by the Department of
Labor. 20 C.F.R. § 404.1566(d). The ALJ can also use the services of a VE to
help determine whether a claimant's work skills can be used in other work, and,
if so, the specific occupations in which they can be used. 20 C.F.R. §
404.1566(e); Beinlich, 345 Fed.Appx. at 168.
VOCATIONAL EXPERTS (VE)
A Vocational Expert
witness (VE) may be called to testify to determine your vocational profile and
whether your skills are transferrable based on the Medical-Vocational Grid (20
C.F.R. Part 404, Subpart P, Appendix 2). The VE will classify your past
relevant work according to the Dictionary of Occupational Titles (DOT). The VE
will also give an opinion concerning whether there are there a significant
number of jobs available in the local or national economy that you could apply
for?
Vocational expert means a vocational professional who has the qualifications
required by the Commissioner and who provides expertise to disability
adjudicators at the initial, Federal reviewing official, and administrative law
judge levels of the administrative review process.
Representatives should
confirm the credentials of all experts, including VEs, at a hearing; confirm
that their licenses are current, that the resume is not puffed with
distortions, and that there are no complaints or probationary restrictions on
those licenses; lastly, you should ask what percent of an VE's revenue comes
directly from social security, and if that revenue was terminated, how would
the expert pay their bills. If ALJ's can cast dark shadows over the credibility
of treating doctors, it is the responsibility of the representative to cast an
equally dark shadow over the VE’s testifying at the hearing. An expert that has
100% of his income from appearing at Social Security hearings may be biased in
favor of the SSA. They are more likely to give testimony that they think is
favorable to the ALJ’s opinion in the case. That opinion may not be the most
objective to the claimant. This information will be useful on appeal.
Social Security Rulings (SSR) make available to the public precedential decisions relating to the Federal old- age, survivors, disability, supplemental security income, and black lung benefits programs. Social Security Rulings may be based on case decisions made at all administrative levels of adjudication, Federal court decisions,
Commissioner's decisions, opinions of the Office of the General Counsel, and other policy interpretations of the law and regulations.
Although Social Security Rulings do not have the force and effect of
the law or regulations, they are binding on all components of the Social
Security Administration, in accordance with 20 CFR 422.406(b)(1), and are to be
relied upon as precedents in adjudicating cases. SSRs are published in
accordance with 20 CFR 422.406(b)(1).
If Social Security
finds that you cannot make the transition to other work, you will be granted
benefits.
Social Security
regulations explain the five-step sequential evaluation process at 20 C.F.R.
404.1520.
Knowledge of the 5 step
sequential evaluation process is critical to making a successful Social
Security disability claim.
If you are a younger
individual and have worked in a management position, you may have learned
skills that may be transferrable to other types of work. If you had the
authority to hire and fire employees, then you might have been a senior member
of the company with transferrable managerial or personnel skills.
KYLE v. COMMISSIONER OF SOCIAL SECURITY
ROBERT KYLE, PLAINTIFF-APPELLANT,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT-APPELLEE.
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT-APPELLEE.
No. 09-3628.
United States Court of Appeals, Sixth Circuit.
Argued: April 30, 2010.
Decided and Filed: June 28, 2010.
Pursuant to Sixth Circuit Rule 206
ARGUED: Shoshana R. Pehowic, O'CONNOR, ACCIANI & LEVY,
Cincinnati, Ohio, for Appellant.
Edward P. Studzinski, OFFICE OF THE GENERAL COUNSEL, SOCIAL
SECURITY ADMINISTRATION, Chicago, Illinois, for Appellee.
ON BRIEF: Shoshana R. Pehowic, Eric P. Allen, O'CONNOR, ACCIANI
& LEVY, Cincinnati, Ohio, for Appellant.
Depak Sathy, OFFICE OF THE GENERAL COUNSEL, SOCIAL SECURITY
ADMINISTRATION, Chicago, Illinois, for Appellee.
Before: GIBBONS and GRIFFIN, Circuit Judges; DOWD, District Judge.
OPINION:
DOWD, Senior District Judge.
Robert Kyle (Kyle) was 48 years old when he was terminated from
his position as a supervisor for laminent manufacturer Formica Corporation on
March 31, 2003. At the time of his termination, Kyle suffered from morbid
obesity and related conditions. He filed an application for Social Security
disability benefits ten months later on January 20, 2004. At his hearing, the
Administrative Law Judge (ALJ) found that his complaints were "not
entirely credible," but determined, nonetheless, that Kyle was not able to
perform any past relevant work. The ALJ determined further, however, that Kyle
had acquired skills from his past relevant work that were transferable to other
occupations existing in significant numbers in the national economy. The ALJ
specifically relied on the opinion of vocational expert (VE) George Parsons,
PhD, who stated that Kyle acquired past relevant work skills, especially
supervisory skills, that would transfer to other jobs. Based on this finding,
the ALJ determined Kyle was not disabled for Social Security purposes. Kyle's
request for review was denied by the Appeals Council of the Social Security
Administration (Appeals Council), and he filed a civil action in the federal
district court.
The district court issued an order affirming the Appeal Council's
decision, finding that the ALJ did not make an error prejudicial to Kyle.
Because this Court concludes that the ALJ had substantial evidence to make a
finding that Kyle had acquired past relevant work skills that would transfer to
other jobs, we affirm the judgment of the district court.
I.
BACKGROUND:
A. FACTUAL BACKGROUND
Kyle was born on March 1, 1955 and completed the 11th grade. On
March 31, 2003, in his seventeenth year of employment at Formica Corporation
and his eleventh year as a supervisor, Kyle was terminated. Kyle
suffered from morbid obesity, his weight ranging from 350-471 pounds. According
to primary care physician (PCP) John C. Capurro, M.D., and orthopedic surgeon,
S. Michael Lawhon, M.D., his diagnoses prior to 2003 included low back pain,
hypertension, fluid retention, cardiomegaly, degenerative joint disease (DJD)
in both knees, a medial meniscus tear in his left knee, osteoarthritis, and
chondromalacia.
For ten months after he was terminated, Kyle looked for another
job, but never worked again. He applied for disability in January 2004.
His medical records between 2003 and 2006 reveal that, after he
was terminated from his job, he also developed degenerative changes in his
lumbar spine, lumbago, spinal stenosis, and recurrent perianal abscesses. He
underwent ten days of physical therapy for low back pain in March 2004 and
thirteen days in the winter 2006. He received a single steroid spinal injection
in March 2006.
In a May 15, 2004 report, consultant Christopher Wright, M.D.,
described Kyle as a "massively obese middle-aged man who ambulates with a
normal gait, and who is comfortable in both the sitting and standing
positions." Wright diagnosed Kyle with morbid obesity, chronic back pain,
left knee pain and elevated blood pressure, but found Kyle able to do moderate
amounts of sitting, ambulating, standing, bending, kneeling, pushing, pulling,
lifting and carrying heavy objects.
A June 8, 2004 Physical Residual Functional Capacity Assessment
(RFC), completed by Jerry McCloud, M.D., noted that Kyle could stand or walk
six hours per day, sit for six hours a day, and do unlimited pushing and
pulling. The neurological exam was normal, although an x-ray of the knee showed
"degenerative arthrosis," and an x-ray of the spine showed
"degenerative changes in the lumbar spine."
Kyle's PCP Capurro, M.D., prepared a July 19, 2005 work assessment
report concluding Kyle had DJD, degenerative disc disease (DDD), and
hypertension. Capurro found Kyle could sit for no more than 2.5 hours per day and
could never climb, balance, stoop, crouch, kneel, or crawl.
In January 2007, Dana Bussing, M.D., prepared a RFC diagnosing
facetogenic versus discogenic lower back pain[ 5 ] and bilateral knee
osteoarthritis with a poor prognosis. She reported that Kyle had pain after
standing or walking for five minutes, but he did not complain of pain while
sitting. She noted that his symptoms would rarely be severe enough to interfere
with the concentration needed to perform simple work and concluded that he
could sit for 45 minutes without having to get up.
B.
PROCEDURAL BACKGROUND
Kyle applied for Social Security disability insurance benefits on
January 20, 2004. In various written submissions, Kyle told the agency that for
over ten years he supervised 48 employees at Formica, had authority to hire and
fire them, and was responsible for making sure the production goals were
achieved.
A hearing was held regarding his application on January 25, 2007
before an Administrative Law Judge (ALJ) in Cincinnati, Ohio.
1. Testimony of Robert Kyle
Kyle testified that, initially, he was a Finishing Process
Operator with Formica. His job was to carry, "flip," and sand or cut
21 pound sheets of formica. He used regular hand tools and micrometers. Kyle
"went into management" in 1992 with the title "supervisor in
trim and sand." Even after becoming a manager, Kyle was up and around his
workers. For example, Kyle showed the foremen how to pass the material through
the machine and responded when he was called regarding a machine that was not
working properly. He wrote production, safety and accident reports, and also
sometimes helped lift and carry the sheets of formica.
Kyle testified that a new supervisor came the year before Kyle was
terminated. The supervisor "wanted more numbers" but Kyle, having
"done it for 20 years," knew the supervisor's way was not going to
work. Despite this, Kyle "still got [the] job done." Kyle continued
to receive assignments, complete his paperwork, and, although he "might go
around the way to do it," achieved the same outcome. Kyle's
"production numbers were good or better than anybody else. I didn't have
no safety issues." One day, the supervisor called him in and said they
were going to terminate him. He was essentially fired.
Kyle told the ALJ he could not perform his former job as a
supervisor because he could not stand, climb around the machines, or handle
materials like he did before. He testified that he could, however, perform a
paperwork job at a desk if he were allowed to stand up and walk around every 20
minutes or so. He testified that he sent out resumes and searched for jobs for
ten months after he was terminated. He sought both management positions and
regular hourly work. While he received interviews, he never worked again.
With respect to physical exertion, Kyle testified that he climbed
three steps to get into his home, but was "fine" once he got in. He
could walk about 100 feet before he needed to rest.
2. Testimony of Reviewing Medical Advisor Wayne
Wheeler, M.D.
Dr. Wheeler testified that Kyle suffered from morbid obesity,
lower back pain, perianal abscesses and knee pain. In Wheeler's opinion, Kyle's
RFC limited him to sedentary work where he would never bend or stoop, could sit
for six hours, and had to have easy access to the job. Since Kyle already
climbed three stairs to get into his home, climbing that to get to his job
would be reasonable, but any more than that would be a challenge.
3. Testimony of Vocational Expert George Parsons,
PhD
The VE testified that Kyle's previous job of "finishing
process operator, laminate" would have Dictionary of Occupational Titles
(DOT) number 584.682-014 and would be classified as medium work with an SVP of
5.[ 7 ] Since there was no DOT number for Kyle's job as a laminate
supervisor, the VE concluded that the DOT jobs that most closely fit the
laminate supervisor job were the jobs of general production supervisor (DOT
number 699.130-010, light work, SVP of 7, making it skilled) and supervisor of
coating machines (DOT number 554.137-014, light work, SVP of 7, making it also
skilled). According to the VE, the hypothetical man confined to the activities
Dr. Wheeler described could not perform his past relevant work.
4. VE Testimony That Kyle Had Transferable
Supervisory Skills
The VE testified that Kyle's skills were his ability to interact
with others to get the production job done. The VE also stated that, while Kyle
used various micrometers and other types of tools in his work and had general
knowledge of machines and machine operations, the supervisory part of Kyle's job
made it skilled. Specifically, the VE testified:
A: Now the skills are obviously (INAUDIBLE). He supervised 48
people so, you know, based upon that are skills that are his ability to
interact with others to get production done, and as he stated he's — you know,
they have to use various micrometers and other types of tools in order to be
able to finish their work, and this, this general knowledge of machines,
machine operations is what you're — he did. But it's really, it's really the
supervision of 40 people that makes it skilled.
The ALJ asked the VE whether Kyle could perform other jobs to
which his skills would transfer "without significant vocational
adjustment?" The VE offered the opinion that, if Kyle could get
into the building, he could perform other jobs at the sedentary level without
significant vocational adjustment, such as an expediting clerk, shipping and
receiving clerk, and sedentary supervisor positions. When questioned by the
ALJ, the VE testified as follows:
Q: Could he perform other jobs to which his skills would transfer
without significant vocational adjustment? Given that RFC.
A: Well, here's the problem I've got with that testimony. I, I
think there are other jobs. I mean he could be an expediting clerk. He could
work as a shipping and receiving clerk. He could do those kinds of things at
the sedentary level, but within that limitation was the entrance and exit
egress separate to a company, and I have no way of knowing if he'd have to
climb three stairs or not climb three stairs.
Q: Well, he's climbing three stairs going into his house.
A: I know but I'd have no way of knowing within the plant if he'd
have to climb . . . but I can tell you that I think he could perform work as an
inspector, as an expediting clerk, and in shipping and receiving, and I think
he could go sedentary supervisor positions . . . .
The VE further testified that Kyle's skills could transfer to
those positions even if products other than formica were involved, and further,
Kyle testified that he had looked for "those kind of jobs." The VE
responded to the ALJ's question in this regard as follows:
Q: Well, could his skills transfer to those jobs with the —
A: Oh, yeah, yeah, the same thing. It's just different products. I
mean, you know, as he said he looked for those kind of jobs.
The VE offered his opinion that Kyle's success supervising in the
past supported the conclusion that Kyle had supervisory skills. When questioned
by Kyle's attorney, the VE testified as follows:
Q: I mean given, given that and his education, which is not even a
high school diploma does he have the skills to do the paperwork that's required
at these production supervisor jobs at Toyota and these other companies?
A: Well, yeah, he, he's obviously demonstrated the ability to do
the work. I mean he did it. Now as I stated his advantage was he learned the
job, so that was an advantage for him particularly in Formica where they have
laminates and coatings, because he knew those.
Q: But in these other production supervisor jobs he does no longer
have that advantage.
A: Correct, but that's — I, I don't have any way — I mean
obviously he has the ability to relate to people. He ran 48 people. He didn't —
I mean — and he was beating production quotas, so he obviously knows how to do
it. Now his style may be different than somebody else's, and I can't testify to
that, but obviously he can.
5. VE Testimony That Jobs To Which Kyle Could
Transfer Were Consistent with the DOT
The VE testified as to four DOT jobs which existed in significant
number and to which Kyle's skills could transfer. He stated that there were
10,000 supervisory jobs in Cincinnati, and of those, "2,000-plus
are in the sedentary [category.]" The VE stated that there were 2,300
local general supervisor jobs, 366 local inspection jobs, 688 local expediting
clerk jobs, and 869 shipping and receiving jobs that Kyle could do.
Specifically, the VE testified in response to questioning by the ALJ as
follows:
A: Yeah, I'm giving you, first line, supervisor production which
is the job he had (INAUDIBLE).
Q: All right.
A: Twenty-three hundred in the local economy, 144,000 nationally.
DOT number representative 184.167-046. Inspection, local economy, 366.
51,000 nationally; DOT number representative 726.362-010. Expediting Clerk,
local economy, 688. Nationally, 79,000; representative DOT number 221.367-066.
Last job, shipping and receiving clerk, local economy 869. Nationally 111,000;
DOT number 248.367-022.
Thereafter, the ALJ asked the VE if the jobs he testified about
were suitable to Kyle's skills and consistent with the DOT. The VE testified
that they were.[ 10 ]
6. The ALJ's Decision
The ALJ determined that Kyle was not disabled. In her decision,
the ALJ found that Kyle was unable to perform any past relevant work. She found
that Kyle was 48 years old as of his disability onset date (January 2004) and
considered a "younger individual" (age 45-49). She found, further,
that Kyle became an individual closely approaching advanced age as of February
28, 2005, the day before his 50th birthday.[ 12 ] She found Kyle had a
limited education, and, based on the VE's testimony, that Kyle had skilled
past relevant work as a supervisor, work that had an SVP of 7 and required
the skills of interacting with others and supervising their work, knowledge of
machines and machine operations, knowledge of tools, and paperwork skills,
including performance appraisals of employees and writing reports in general.
She determined that, based on the Medical-Vocational Grid (20 C.F.R. Part
404, Subpart P, Appendix 2), Kyle had transferable skills. Specifically, she
held that, considering Kyle's age, education, work experience and residual
functional capacity, Kyle had skills that were transferable to other
occupations with jobs existing in significant numbers in the national economy.
The ALJ relied on the VE's testimony that the skills Kyle
acquired through his past relevant work would be transferable. She relied
on the VE's testimony that Kyle could perform the sedentary job of inspector,
of which there were 366 jobs in the local economy; the sedentary job of
expediting clerk, of which there were 688 jobs in the local economy; the
sedentary job of production supervisor, of which there were 2,300 jobs in the
local economy; or the sedentary job of shipping/receiving clerk, of which there
were 248 jobs in the local economy. The ALJ determined that the VE's testimony
was consistent with the DOT, as set forth by the requirements of SSR 00-4p and
that such numbers constituted a significant number of jobs.
Based on these findings, the testimony of the VE, and the record
as a whole, the ALJ concluded that Kyle acquired work skills from past relevant
work that were transferable to other occupations with jobs existing in
significant numbers. The ALJ held, accordingly, that Kyle was not disabled under
the framework of Medical-Vocational Rule 201.11 from February 28, 2005 until
March 20, 2007 (the date of her decision) and not disabled under the framework
of Medical-Vocational Rule 201.20 from March 31, 2003 through
February 27, 2005.
The Appeals Council denied Kyle's request for review on January
24, 2008, making the ALJ's decision the final decision of the Commissioner of
Social Security (Commissioner).
Kyle then filed a civil action in the United States District Court
for the Southern District of Ohio, seeking a reversal of the ALJ's findings.
The magistrate judge recommended that the decision of the Commissioner be
affirmed, and the district court adopted that recommendation. Kyle now appeals.
II.
ANALYSIS
A. Standard of Review
This Court exercises de novo review of district court
decisions in Social Security disability cases. White v. Comm'r of Soc. Sec.,
572 F.3d 272, 281 (6th Cir. 2009); Lindsley v. Comm'r of Soc. Sec., 560
F.3d 601, 604 (6th Cir. 2009). The Commissioner's conclusion will be affirmed
absent a determination that the ALJ failed to apply the correct legal standard
or made fact findings unsupported by substantial evidence in the record. White,
572 F.3d at 281 (citing 42 U.S.C. § 405 (g)). Substantial evidence is
"such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." Lindsley, 560 F.3d at 604 (citing
Richardson v. Perales, 402 U.S. 389, 401 (1971)); see also Walker v.
Sec'y of Health and Human Services, 980 F.2d 1066, 1070 (6th Cir. 1992); McGlothin
v. Comm'r of Soc. Sec., 299 Fed. Appx. 516, 522 (6th Cir. 2008) (noting
that substantial evidence is "more than a scintilla of evidence but less
than a preponderance; it is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.") (internal quotations
omitted).
In deciding whether to affirm the Commissioner's decision,
"it is not necessary that this Court agree with the Commissioner's
finding, as long as it is substantially supported in the record." Beinlich
v. Comm'r of Soc. Sec., 345 Fed.Appx. 163, 167 (6th Cir. 2009). Even if
this Court might have reached a contrary conclusion of fact, the Commissioner's
decision must be affirmed so long as it is supported by substantial evidence. Lindsley,
560 F.3d at 604-05 (administrative findings are not subject to reversal merely
because substantial evidence exists in the record to support a different
conclusion) (quoting Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir.
1994)); Roe v. Apfel, 211 F.3d 1270, at *7 (6th Cir. April 25, 2000) (unpublished
table decision).
B. The ALJ's Factual Determination That Kyle
Possessed Supervisory Skills Transferable To Other Jobs Was Supported By
Substantial Evidence
The ALJ determines disability using a five-step sequential
analysis. 20 C.F.R. § 404.1520; Germany-Johnson v. Comm'r of Soc. Sec.,
313 Fed.Appx. 771, 774 (6th Cir. 2008). She must determine, first, whether the
claimant is working; second, whether the alleged impairment is severe; third,
whether the impairment meets or equals a listed impairment and hence has a
certain level of severity; fourth, whether the claimant can still do past
relevant work; and, finally, when considering the claimant's age, education,
work experience, and residual functional capacity, whether the claimant can do
other work. Id. (citing 20 C.F.R. § 404.1520(a)(4)(i-v)). The
burden is on the claimant to satisfy the first four steps. Id.
Thereafter, the burden shifts to the Commissioner at step five to show "a
significant number of jobs in the economy that accommodate the claimant's
residual functional capacity (determined at step four) and vocational
profile." McGlothin, 299 Fed.Appx. at 522; Lashley v. Sec'y of
Health & Human Servs., 708 F.2d 1048, 1053 (6th Cir. 1983); 20 C.F.R. §
404.1520 (g)(1).
An ALJ can use Medical-Vocational guidelines or "grids,"
found at 20 C.F.R. Part 404, Subpart P, Appendix 2, at the fifth step of the
disability determination after the claimant has been found not to meet the
requirements of a listed impairment, but found nevertheless incapable of performing
past relevant work. Jordan v. Comm'r of Soc. Sec., 548 F.3d 417, 423-24
(6th Cir. 2008). Normally, where a claimant suffers from an impairment limiting
only his strength (i.e., exertional limitations), the SSA can satisfy its
burden through reference to the grids. Id. at 424. The grids, in
conjunction with the claimant's RFC, age, education and work experience, are
used to determine whether the claimant can successfully adjust to other work.
Rule 201.20 of the grid shows that a Younger Individual (ages 45-49) with
limited or less education and skilled or semi-skilled previous work experience
and transferable skills will be found "not disabled." Likewise, Rule
201.11 sets forth that an individual closely approaching advanced age (ages 50-55)
with the limited or less education, skilled or semi-skilled previous past work
experience and transferable skills will be found "not disabled."
To establish that work exists in the national economy, the ALJ can
rely on evidence such as the testimony of a VE and the DOT. The ALJ takes
administrative notice of reliable job information available from various
governmental publications such as the DOT, published by the Department of
Labor. 20 C.F.R.§ 404.1566(d). The ALJ can also use the services of a VE to
help determine whether a claimant's work skills can be used in other work, and,
if so, the specific occupations in which they can be used. 20 C.F.R. §
404.1566(e); Beinlich, 345 Fed.Appx. at 168.
The ALJ must then assess whether the claimant has transferable
skills pursuant to 20 C.F.R. § 404.1568(d)(1)-(3) and SSR 82-41. The
claimant is considered to have transferable skills when skilled or semi-skilled
work activities the claimant did in past work can be used to meet the
requirements of skilled or semi-skilled work activities of other jobs or
kids of work. According to the statute:
Transferability is most probable and meaningful among jobs in
which —
(i) The same or a lesser
degree of skill is required;
(ii) The same or similar
tools and machines are used; and
(iii) The same or
similar raw materials, products, processes, or services are involved.
20 C.F.R. § 404.1568(d)(2)
There are varying degrees of transferability. All of the
subsets of 1568(d)(2) need not be met for skills to be transferable.
"There are degrees of transferability of skills ranging from very close
similarities to remote and incidental similarities among jobs. A complete
similarity of all three factors is not necessary for transferability." 20
C.F.R. § 404.1568(d)(3); see Thompson v. Comm'r of Soc. Sec., 2008 WL
850167, at * 4 (S.D. Ohio March 28, 2008); see also Faison v. Sec'y of
Health & Human Servs., 679 F.2d 598, 600 (6th Cir. 1982).
1. Supervising Similar Industries, Tools and Raw
Materials
Kyle argues the ALJ erred in finding there was substantial
evidence of jobs to which Kyle could transfer skills. Kyle's argument is,
essentially, that the ALJ erred in relying on the VE because the DOT positions
the VE suggested were not in the same industry nor did they involve the same
skills, tools or raw materials as the laminates industry. He argues, further,
as to supervisory skills, that since the supervisory jobs that the VE suggested
were not in the same industry and did not use the same tools, materials or
processes, it was not likely that Kyle would have sufficient knowledge of the
work being done to properly supervise the employees.
The standard of transferability of skills is that transferability
is "most probable and meaningful" if the jobs involve the same or
less skill, same or similar tools/machines and same or similar raw materials,
products, processes or services. 20 C.F.R. § 404.1568(d); Thompson, 2008
WL 850167, at * 4. The statute does not say the jobs must have these features
for a claimant's skills to transfer to them. The VE listed the DOT numbers of
four jobs to which Kyle's skills could transfer and the ALJ was correct to rely
on this testimony, given the VE's ability to tailor his findings to an
"individual's particular residual functional capacity." Beinlich,
345 Fed.Appx. at 168 (quoting Wright v. Massanari, 321 F.3d 611, 616
(6th Cir. 2003)). The fact that the DOT codes revealed these were jobs
dissimilar to the laminates industry is not an indication Kyle's skills could
not transfer to them. Most importantly, regardless of the tools or materials in
Kyle's past industry, the VE repeatedly emphasized the supervision skill as the
transferable skill stating "he's obviously demonstrated the ability to do
the [production supervisor] work . . ." and "obviously he has the
ability to relate to people. . . . [H]e was beating production quotas, so he
obviously knows how to do it." Kyle indicated he was in charge of hiring
and firing over 40 people for more than ten years. The VE testified that, of
his skills, the supervisory skills were the most important. Therefore, this
Court finds the ALJ had substantial evidence on which to base her opinion that
Kyle had transferable skills and will not disturb the ALJ's findings. Howard
v. Comm'r Soc. Sec., 276 F.3d 235, 237 (6th Cir. 2002).
This Court agrees that the VE's testimony may suggest Kyle's
supervisory skills would be useful only if transferred to an industry in which
he had experience. However, this Court finds the ALJ relied on the VE's
ultimate opinion that Kyle's skills were transferable, and this testimony
served as substantial evidence upon which it was proper for the ALJ to rely. Beinlich,
345 Fed.Appx. at 167; Wright, 321 F.3d at 616. Further, even if this
Court had come to a different factual conclusion, it would not disturb the
findings of the ALJ which are based on substantial evidence. Kinsella v.
Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983); Germany-Johnson, 313
Fed. Appx. at 774-75; Lindsley, 560 F.3d at 604-05.
2. Transferability of Traits or Skills
Kyle argues, additionally, that the VE's testimony regarding
transferable skills actually addressed traits and therefore it was error for
the ALJ to rely on the testimony. The evidence demonstrates that the VE relied
on the learned skill of interacting with people. Successfully supervising 48 people
is evidence of developed or acquired aptitudes or abilities, not an unlearned
trait. Blake v. Sec'y of Health & Human Servs., 528 F.Supp. 881, 885
(E.D. Mich. 1981); Siterlet v. Sec'y of Health & Human Servs., 823
F.2d 918, 921(6th Cir. 1987); Ellington v. Sec'y of Health & Human
Servs., 738 F.2d 159, 161 (6th Cir. 1984). In addition, SSR 82-41 defines a
skill as:
knowledge of a work
activity which requires the exercise of a significant judgment that goes beyond
the carrying out of simple job duties and is acquired through performance of an
occupation which is above the unskilled level (requires more than 30 days to
learn). It is practical and familiar knowledge of the principles and processes
of an art, science or trade, combined with the ability to apply them in
practice in a proper and approved manner.
SSR 82-41.
Kyle was also exceeding company quotas while supervising his
employees. In Bogema v. Sec'y of Health & Human Servs., 787 F.2d 588
(6th Cir. 1986) (Table), a bartender with eight years experience, whose job
included overseeing two waitresses, asserted that the ALJ relied on a VE's
itemization of aptitudes, not skills, and therefore did not have substantial
evidence of transferable job skills. The VE testified plaintiff had the skills
of working with people, handling money, purchasing, ordering and receiving
stock, and handling difficult people. The district court found that these were
not aptitudes, but "acquired skills" and that "overseeing the
work of others to make sure they do their jobs over a period of years entails
more than a simple `aptitude' for `responding appropriately to
coworkers.'" Id. at *3. Likewise, Kyle's capabilities overseeing
over 40 worker for over 10 years with production numbers that were as
"good or better than anybody else[`s]" are properly categorized as
skills. The ALJ made no error relying on the VE's testimony that Kyle had
transferable supervisory skills and her decision, therefore, will not be
disturbed. Richardson, 402 U.S. at 401.
3. Jobs To Which the VE Testified Kyle Could
Transfer Were Consistent With the DOT
Kyle does not state in what way the VE's opinion of transferable
jobs contradicted the DOT. The implication from the argument is that there is a
conflict because the jobs do not "truly fit" into Kyle's past job
experience. For example, Kyle argues that the description of the DOT supervisor
position suggested (incinerator-plant-general supervisor of production), and
the inspection job (group leader, semiconductor testing) contradicted, what the
VE stated were applicable to Kyle. However, this is not a "conflict"
of the type anticipated by SSR 00-4p. See Lindsley, 560 F.3d at 605-07; Austin
v. Comm'r of Soc. Sec., 2010 WL 1170630, at *3 (N.D. Ohio March 23, 2010)
(where ALJ relies on testimony of the VE that conflicts with DOT, ALJ must
elicit a reasonable explanation; however, mere fact that VE identifies an
occupation not described by DOT is not a conflict as DOT contains information
about most, but not all, occupations). The VE acknowledged that these industries
were not laminate industry position, but in his professional opinion, Kyle
could perform them. Further, even if a conflict existed, the ALJ inquired
properly if the VE's testimony was consistent with the DOT and was given a
response in the affirmative. Therefore, the ALJ met her obligation under SSR
00-4p and there was no error relying on the positions the VE offered.
III.
CONCLUSION
For all of the reasons set forth above, this Court AFFIRMS the
judgment of the district court.
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