Robert Kyle v. Commissioner of Social Security

*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.
X---->
,---
N
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

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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,

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No. 09-3628 Kyle v. Comm’r of Soc. Sec. Page 3
1Irritation to the cartilage under the kneecap.
2Lumbago is low back pain.
3Arthrosis 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.

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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.
5A 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

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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

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No. 09-3628 Kyle v. Comm’r of Soc. Sec. Page 6
6The 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.
7It 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,

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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.

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No. 09-3628 Kyle v. Comm’r of Soc. Sec. Page 8
8The DOT job identified by 184.167-046 is “Incinerator Plant-General Supervisor.”
9See 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

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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

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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 Medical-
Vocational 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

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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.”

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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 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:

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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

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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

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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.

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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-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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