*

The Honorable David D. Dowd, Jr., Senior United States District Judge for the Northern District

of Ohio, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0187p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

ROBERT KYLE,

 Plaintiff-Appellant,

v.

COMMISSIONER OF SOCIAL SECURITY,

 Defendant-Appellee.

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No. 09-3628

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 08-00191—Susan J. Dlott, Chief District Judge.

Argued: April 30, 2010

Decided and Filed: June 28, 2010 

Before: GIBBONS and GRIFFIN, Circuit Judges; DOWD, District Judge.*

_________________

COUNSEL

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.

_________________

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

1
No. 09-3628 Kyle v. Comm’r of Soc. Sec. Page 2

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,
No. 09-3628 Kyle v. Comm’r of Soc. Sec. Page 3

1

Irritation to the cartilage under the kneecap.

2

Lumbago is low back pain.

3

Arthrosis means “joint.”

degenerative joint disease (DJD) in both knees, a medial meniscus tear in his left knee,

osteoarthritis, and chondromalacia.1

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,2

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,”3 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. 
No. 09-3628 Kyle v. Comm’r of Soc. Sec. Page 4

4

“Facetogenic” means relating to degeneration of the facets, or joints of the spine. “Discogenic”

means relating to degeneration of the intervertebral discs.

5

A micrometer is a precision measurement device, usually in the shape of calipers.

In January 2007, Dana Bussing, M.D., prepared a RFC diagnosing facetogenic

versus discogenic lower back pain4 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.5

 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
No. 09-3628 Kyle v. Comm’r of Soc. Sec. Page 5

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
No. 09-3628 Kyle v. Comm’r of Soc. Sec. Page 6

6

The Dictionary of Occupational Titles is a reference, produced by the United States Department

of Labor, listing thousands of jobs. 20 C.F.R. § 404.1566(d). The abbreviation “SVP” is Specific

Vocational Preparation, which is the amount of time required by a typical worker to learn the techniques,

acquire the information, and develop the facility needed for average performance of a job.

7

It is unclear why the ALJ inquired in terms of “significant vocational adjustment” since Kyle

was 52 at the time of the hearing. The standard of “significant vocational adjustment” applies to evaluating

transferability of skills in a category of older claimants, those of advanced age, age 55 or older. 20 C.F.R.

§ 404.1568(d)(4).

and would be classified as medium work with an SVP of 5.6 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?”7

 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,
No. 09-3628 Kyle v. Comm’r of Soc. Sec. Page 7

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.
No. 09-3628 Kyle v. Comm’r of Soc. Sec. Page 8

8

The DOT job identified by 184.167-046 is “Incinerator Plant-General Supervisor.” 

9

See Austin v. Comm’r of Soc. Sec., No. 3:09 CV 723, 2010 WL 1170630, at *3 (N.D. Ohio

March 23, 2010) for an example of VE testimony conflicting with the DOT description of a job. In that

case, the claimant was limited to unskilled jobs. The VE testified there were three unskilled jobs he could

perform and offered the DOT numbers for them. However, one of the DOT numbers described a job that

was semi-skilled. This would have required the ALJ to perform an SSR 00-4p inquiry regarding the

conflict between the VE's testimony and the DOT description of the job. The court held it was harmless

error, however, as the other two positions the VE described were unskilled jobs. The type of conflict the

SSR (Social Security Ruling) 00-4p inquiry anticipates is not between the type of job claimant performed

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 184.167-046.8

 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.9
No. 09-3628 Kyle v. Comm’r of Soc. Sec. Page 9

in the past and that which the VE opines his skills can transfer to in the future, but a conflict between the

type of jobs the claimant has been determined by an MD and VE to be able to perform and the DOT

description of the capabilities and skills required to do the job.

10Age 50-54. 

11Kyle was 52 and remained in this age group on the date of the ALJ’s opinion, March 20, 2007.

12The ALJ also stated that the “vocational expert said these skills would also transfer to other

jobs at the sedentary level without significant adjustment.” In fact, the VE said “it could be” that there

would be a significant vocational adjustment upon the transfer to other jobs. Since Kyle did not raise this

as an issue in his appeal, however, this Court will not address it here.

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 age10 as of February 28, 2005, the day before his 50th birthday.11

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.12 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
No. 09-3628 Kyle v. Comm’r of Soc. Sec. Page 10

13The ALJ does not identify that upon which she relied in making this determination, although

the testimony from the hearing demonstrates she asked the VE outright if his testimony was consistent with

the DOT.

14Rule 201.11 applies to individuals closely approaching advanced age, 50-55.

15Rule 201.20 applies to “younger persons” age 45-49.

consistent with the DOT, as set forth by the requirements of SSR 00-4p13 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 MedicalVocational Rule 201.1114 from February 28, 2005 until March 20, 2007 (the date of her

decision) and not disabled under the framework of Medical-Vocational Rule 201.2015

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
No. 09-3628 Kyle v. Comm’r of Soc. Sec. Page 11

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.”
No. 09-3628 Kyle v. Comm’r of Soc. Sec. Page 12

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 semiskilled 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:
No. 09-3628 Kyle v. Comm’r of Soc. Sec. Page 13

16The VE offered, 1) Production Supervisor: DOT 184.167-046 (Incinerator-plant-general

supervisor), 2) Inspector: DOT 726.362-010 (Group Leader, Semiconductor testing), 3) Expediting Clerk:

DOT 221.367-066 (Scheduler, maintenance or Dispatcher, maintenance), and 4) Shipping/receiving clerk:

DOT 248.367-022 (Container coordinator).

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 positions16 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
No. 09-3628 Kyle v. Comm’r of Soc. Sec. Page 14

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
No. 09-3628 Kyle v. Comm’r of Soc. Sec. Page 15

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.
No. 09-3628 Kyle v. Comm’r of Soc. Sec. Page 16

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-plantgeneral 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.