UNITED STATES DISTRICT COURT

EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

GERALD COVELL,

Plaintiff, Civil Action No. 14-13033

 Honorable Thomas L. Ludington

v. Magistrate Judge Elizabeth A. Stafford

 

CAROLYN W. COLVIN, 

Acting Commissioner of 

Social Security,

 

Defendant. 

_____________________________/

REPORT AND RECOMMENDATION ON CROSSMOTIONS FOR SUMMARY JUDGMENT [R. 15, 19]

I. INTRODUCTION

Plaintiff Gerald Covell appeals a final decision of Defendant 

Commissioner of Social Security (“Commissioner”) denying his application 

for Disability Insurance Benefits (“DIB”) under the Social Security Act (the 

“Act”). Both parties have filed summary judgment motions [R. 15, 19], 

which were referred to this Court for a Report and Recommendation 

pursuant to 28 U.S.C. § 636(b)(1)(B). After review of the record, the Court 

finds that the administrative law judge’s (“ALJ”) step-five transferability 

analysis is not supported by substantial evidence. For these reasons, the 

Court RECOMMENDS that Covell’s motion [R. 15] be GRANTED, the 

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Commissioner’s motion [R. 19] be DENIED, and the Commissioner’s 

decision be REVERSED and this matter REMANDED for further factual 

findings pursuant to sentence four of 42 U.S.C. § 405(g).

II. BACKGROUND

A. Covell’s Background and Claimed Disabilities

At the time of the administrative hearing, Covell was a 52-year-old 

high school graduate who previously worked for an automotive glass 

manufacturer for 21 years, the last 11 of which as an assembly line trainer. 

[R. 10-2, Tr. 31-33; R. 10-6, Tr. 163-64, 181]. He has not worked since 

taking a buy-out in 2008. [R. 10-2, Tr. 34]. Covell alleges disability based 

on diabetes and neuropathy. [R. 10-6, Tr. 180]. 

B. Procedural History

Covell filed his application for DIB in December 2011, alleging 

disability as of January 1, 2011. [R. 10-5, Tr. 144-45]. The claim was

denied initially, and he filed a timely request for an administrative hearing. 

[R. 10-4, Tr. 67, 78]. Covell and a vocational expert (“VE”) testified at a 

hearing before an ALJ on April 18, 2013. [R. 10-2, Tr. 26-46]. In an April 

24, 2013 written decision, the ALJ found Covell not disabled. [Id., Tr. 15-

22]. On April 28, 2014, the Appeals Council denied review, making the 

ALJ’s decision the final decision of the Commissioner for purposes of this 

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review. [Id., Tr. 4-8]. Covell subsequently filed for judicial review. [R. 1].

C. The ALJ’s Application of the Disability Framework

DIB are available for those who have a “disability.” See Colvin v. 

Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). A “disability” is the “inability to 

engage in any substantial gainful activity by reason of any medically 

determinable physical or mental impairment which can be expected to 

result in death or which has lasted or can be expected to last for a 

continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 

1382c(a)(3)(A).

The Commissioner determines whether an applicant is disabled by 

analyzing five sequential steps. First, if the applicant is “doing substantial 

gainful activity,” he or she will be found not disabled. 20 C.F.R. § 

404.1520(a)(4). Second, if the claimant has not had a severe impairment 

or a combination of such impairments for a continuous period of at least 12 

months, no disability will be found. Id. Third, if the claimant’s severe 

impairments meet or equal the criteria of an impairment set forth in the 

Commissioner’s Listing of Impairments, the claimant will be found disabled. 

Id. If the fourth step is reached, the Commissioner considers its 

assessment of the claimant’s residual functional capacity (“RFC”), and will 

find the claimant not disabled if he or she can still do past relevant work 

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(“PRW”). Id. At the final step, the Commissioner reviews the claimant’s 

RFC, age, education and work experiences, and determines whether the 

claimant could adjust to other work. Id. The claimant bears the burden of 

proof throughout the first four steps, but the burden shifts to the 

Commissioner if the fifth step is reached. Preslar v. Sec’y of Health & 

Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994). 

Following the five-step sequential process, the ALJ concluded that 

Covell was not disabled. At step one, he found that Covell had not 

engaged in substantial gainful activity since his alleged onset date. [R. 10-

2, Tr. 17]. At step two, he concluded that Covell had the following severe 

impairments: diabetes, peripheral neuropathy, and obesity. [Id.]. At step 

three, the ALJ determined that Covell’s impairments did not meet or 

medically equal the severity of any enumerated listing, including Listings

9.00 and 11.14. [Id.]. 

Between steps three and four, the ALJ assessed Covell’s RFC, 

finding him capable of performing sedentary work except that he can never 

climb ladders, ropes, or scaffolds; can only occasionally climb ramps, climb 

stairs, balance, stoop, kneel, crouch, or crawl; and must avoid concentrated 

exposure to humidity, excessive vibrations, extreme cold or heat, 

unprotected heights, or dangerous, unprotected machinery. [R. 10-2, Tr. 

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18].

At step four, the ALJ found that Covell could not perform any PRW. 

[R. 10-2, Tr. 20]. Relying on testimony of the VE expert, the ALJ 

determined at step five that based on his age, education, work experience 

and RFC, Covell could perform the following occupations with jobs existing 

in significant numbers in the national economy: informational clerk, 

telephone solicitor, and order filler. [Id., Tr. 21]. In making this 

determination, the ALJ found that Covell acquired “clerical skills” and 

“expressive and receptive communication skills” from PRW that were 

transferable to those occupations.1

 [Id., Tr. 20-21]. 

III. ANALYSIS

A. Standard of Review

Pursuant to § 405(g), this Court’s review is limited to determining 

whether the Commissioner’s decision is supported by substantial evidence 

and was made in conformity with proper legal standards. Gentry v. Comm’r 

of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014). Substantial evidence is 

 

1 Covell would have been considered automatically disabled if he had no 

transferable skills from past work. See 20 C.F.R. pt. 404, subpt. P, app’x 2, 

Rule 201.14 of Table No. 1 (providing that an individual who is over 50 

years old, is limited to sedentary work, has a high-school education, and 

has no transferable work skills is automatically considered disabled); But 

see id., Rule 201.15 (providing that a similar individual who has 

transferable skills is not automatically disabled).

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“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.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 

(6th Cir. 2007) (internal quotation marks and citation omitted). Only the 

evidence in the record below may be considered when determining 

whether the ALJ’s decision is supported by substantial evidence. Bass v. 

McMahon, 499 F.3d 506, 513 (6th Cir. 2007). “If the [Commissioner’s] 

decision is supported by substantial evidence, it must be affirmed even if 

the reviewing court would decide the matter differently, and even if 

substantial evidence also supports the opposite conclusion.” Cutlip v. 

Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (internal 

citations omitted). 

B. The ALJ’s Step Five Finding is Not Supported by 

Substantial Evidence

The only issue on appeal is whether substantial evidence supports 

the ALJ’s step-five finding that Covell acquired skills from PRW that were 

transferable to other occupations with jobs existing in significant numbers in 

the national economy. 

A claimant is considered to have transferable skills when skilled or 

semi-skilled work activities that he performed in past work can be used to 

meet the requirements of skilled or semi-skilled work activities of other jobs 

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or kinds of work. 20 C.F.R. § 404.1568(d)(1); see also Kyle v. Comm’r of 

Soc. Sec., 609 F.3d 847, 855-56 (6th Cir. 2010). Covell argues that the 

ALJ’s transferability finding is undermined because the job code and job 

titles the VE and ALJ refer to for his PRW do not exist in the Dictionary of 

Occupational Titles (“DOT”). 

During the hearing, the VE testified that Covell PRW was a “trainer 

for automotive automated assembly,” which corresponded with DOT code 

689.324-023. [R. 10-2, Tr. 42]. The VE testified that, based upon that 

PRW, Covell had “clerical skills that would be transferable across all 

industry lines,” and he could perform jobs such as information clerk, 

telephone solicitor and order clerk. [Id., Tr. 43-44]. Covell argues that the 

DOT number and automotive trainer title the VE cited in his testimony do 

not exist. [R. 15, PgID 307]. The Commissioner concedes this point. [R. 

19, PgID 331]. This is reversible error. 

The Commissioner had the burden to demonstrate that Covell had 

transferable skills. Preslar v. Sec’y of Health & Human Servs., 14 F.3d 

1107, 1110, 1111 (6th Cir. 1994). That burden has not been satisfied 

because the VE’s analysis of Covell’s transferable skills is premised on a 

made-up job classification. “An illusory definition in the DOT cannot be 

relied upon . . . .” Burnett, 220 F.3d at 124. The Court agrees with the 

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Commissioner that Burnett is distinguishable, but not in a meaningful way. 

The ALJ in Burnett relied on a made-up DOT job description to contradict 

the claimant’s testimony regarding her PRW, and found that the claimant 

could perform her PRW as described in the made-up definition. Id. at 123-

24. The ALJ’s reliance in this case on a made-up DOT job description to 

determine that Covell had transferable clerical skills is equally erroneous.

Further, the error was not clearly harmless because Covell’s 

testimony regarding his PRW did not obviously describe clerical work that 

is transferable across all industry lines. Covell testified that, from 1998 to 

2008, he did “general assembly and office training coordination” for the 

“younger generation” of assembly workers, and that his job responsibilities 

included training new employees on how to operate the manufacturing 

robots and how to use them to assemble products. [R. 10-2, Tr. 31-32]. 

He further explained his position to be that of “a training coordinator, a 

classroom teacher,” and that he was “[b]ehind a desk, chalkboard, so on 

and so forth” for a majority of the day. [Id., Tr. 32]. Covell stated that he 

worked in a manufacturing plant that “assembled stickers to glass to be 

able to put in cars and it was a fast assembly line and I trained the people 

o[n] where to put the stickers, how to adjust the stickers and to make sure 

they stayed on there and pull-tested.” [Id., Tr. 33]. Without the VE’s 

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supposed expert testimony, the ALJ would not have had a basis from this

testimony to determine that he had transferable clerical skills across all 

industry lines. 

Ordinarily, the ALJ would have been entitled to rely upon the VE’s 

testimony regarding transferable skills. Kyle, 609 F.3d at 855. However, 

here, the VE relied upon an illusory definition, so his testimony cannot be 

considered substantial evidence for the ALJ’s determination that Covell had 

transferable clerical skills. Burnett, 220 F.3d at 124. Further, while the 

Commissioner is correct that “the ALJ and consulting vocational experts 

are not bound by the Dictionary in making disability determinations 

because the Social Security regulations do not obligate them to rely on the 

Dictionary's classifications,” Wright v. Massanari, 321 F.3d 611, 616 (6th 

Cir. 2003), the VE in this case did ostensibly rely upon the DOT 

classification. Wright did not give a VE permission to make up a DOT 

classification, or deem an ALJ’s reliance on such erroneous testimony 

harmless.

For these reasons, the Court finds that this matter should be 

remanded for the ALJ to reconsider whether Covell acquired clerical skills 

from his PRW, and, if not, whether there are jobs existing in significant 

numbers in the national economy that Covell could perform despite the fact 

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that his only transferable skill is the ability to communicate expressively and 

receptively.2

IV. CONCLUSION

For the foregoing reasons, the Court RECOMMENDS that Covell’s 

motion [R. 15] be GRANTED, the Commissioner’s motion [R. 19] be 

DENIED, and the Commissioner’s decision be REVERSED and this matter 

REMANDED for further factual findings pursuant to sentence four of 42 

U.S.C. § 405(g).

s/Elizabeth A. Stafford

ELIZABETH A. STAFFORD

United States Magistrate Judge

Dated: July 27, 2015

NOTICE TO THE PARTIES REGARDING OBJECTIONS

Either party to this action may object to and seek review of this 

Report and Recommendation, but must act within fourteen days of service 

of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed. R. Civ. 

 2 Contrary to Covell’s argument, his ability to communicate 

expressively and receptively, which he developed as a trainer over eleven 

years, is a skill that is transferable. See Kyle, 609 F.3d at 857 (finding that, 

where the VE opined that the claimant had a “learned skill of interacting 

with people,” claimant’s capabilities were appropriately categorized as skills 

rather than a simple aptitude for responding appropriately to coworkers.); 

Parrott v. Astrue, 493 Fed. Appx. 801, 805 (7th Cir. 2012) (concluding that 

the “advanced communication and supervisory skills” that claimant 

developed as a park-district director were skills). 

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P. 72(b)(2). Failure to file specific objections constitutes a waiver of any 

further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. 

Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 

638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but 

fail to raise others with specificity will not preserve all objections that party 

might have to this Report and Recommendation. Willis v. Secretary of 

HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers 

Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). A copy of any objection 

must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

Recommendation to which it pertains. Not later than fourteen days after 

service of objections, the non-objecting party must file a response to 

the objections, specifically addressing each issue raised in the objections in 

the same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

limitation. If the Court determines that any objections are without merit, it 

may rule without awaiting the response.

CERTIFICATE OF SERVICE

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The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s ECF 

System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on July 27, 2015.

s/Marlena Williams

MARLENA WILLIAMS

Case Manager

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