OPINION
Rоbert 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 relevаnt work that
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 rаnging 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. 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 blоod 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. Capur
In January 2007, Dana Bussing, M.D., prepared a RFC diagnosing faeetogenic versus discogenic lower back pain 4 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 concentratiоn 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 (AL J) in Cincinnati, Ohio.
1. Testimony of Robert Kyle
Kyle testified that, initially, he was a Finishing Process Operator with Formicа. 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 tеstified 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.
Kylе 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 еxertion, 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.
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. 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 аctivities 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 productiоn 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 adjustmеnt, 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 nоt 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 advantаge 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 Testimоny 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
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 10 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 expe
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 14 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 15 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 actiоn 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.,
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.,
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.,
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.,
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,
The ALJ must then assess whether the claimant has transferable skills pursuant to 20 C.F.R. § 404.1568(d)(l)-(3) and SSR 82-41. The claimant is considered to have transferable skills when skilled or semi
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 neсessary for transferability.” 20 C.F.R. § 404.1568(d)(3);
see Thompson v. Comm’r of Soc. Sec.,
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 16 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,
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,
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.,
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.,
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 contra-
III. CONCLUSION
For all of the reasons set forth above, this Court AFFIRMS the judgment of the district court.
Notes
. Irritation to the cartilage under the kneecap.
. Arthrosis means "joint.”
. Lumbago is low back pain.
. "Faeetogenic” means relаting to degeneration of the facets, or joints of the spine. "Discogenic” means relating to degeneration of the intervertebral discs.
. A micrometer is a precision measurement device, usually in the shape of calipers.
. 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 dеvelop the facility needed for average performance of a job.
. 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).
. The DOT job identified by 184.167-046 is "Incinerator Plant-General Supervisor.”
.
See Austin v. Comm’r of Soc. Sec.,
No. 3:09 CV 723,
. Age 50-54.
. Kyle was 52 and remained in this age group on the date of the ALJ's opinion, March 20, 2007.
. The 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. Sinсe Kyle did not raise this as an issue in his appeal, however, this Court will not address it here.
. The 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.
. Rule 201.11 applies to individuals closely approaching advanced age, 50-55.
. Rule 201.20 applies to “younger persons” age 45-49.
. The 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).