Kyle v. Comm'r Of Soc. Sec.

• Decision Date: 28 June 2010
• Docket Number: No. 09-3628.,09-3628.
• Citation: 609 F.3d 847
• Parties: Robert KYLE, Plaintiff-Appellant,v.COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

609 F.3d 847

Robert KYLE, Plaintiff-Appellant,v.COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.

No. 09-3628.

United States Court of Appeals Sixth Circuit.

Argued: April 30, 2010.

Decided and Filed: June 28, 2010.

ARGUED: Shoshana R. Pehowic, O'Connor, Acciani & Levy, Cincinnati, Ohio, for Appellant. Edward P. Studzinski, Office of the General Counsel, Social Security Administration, Chicago, Illinois, for Appellee. ON BRIEF: Shoshana R. Pehowic, Eric P. Allen, O'Connor, Acciani & Levy, Cincinnati, Ohio, for Appellant. Depak Sathy, Office of the General Counsel, Social Security Administration, Chicago, Illinois, for Appellee.

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

OPINION

DOWD, Senior District Judge.

Robert Kyle (Kyle) was 48 years old when he was terminated from his position as a supervisor for laminent manufacturer Formica Corporation on March 31, 2003. At the time of his termination, Kyle suffered from morbid obesity and related conditions. He filed an application for Social Security disability benefits ten months later on January 20, 2004. At his hearing, the Administrative Law Judge (ALJ) found that his complaints were “not entirely credible,” but determined, nonetheless, that Kyle was not able to perform any past relevant work. The ALJ determined further, however, that Kyle had acquired skills from his past relevant work that were transferable to other occupations existing in significant numbers in the national economy. The ALJ specifically relied on the opinion of vocational expert (VE) George Parsons, PhD, who stated that Kyle acquired past relevant work skills, especially supervisory skills, that would transfer to other jobs. Based on this finding, the ALJ determined Kyle was not disabled for Social Security purposes. Kyle's request for review was denied by the Appeals Council of the Social Security Administration (Appeals Council), and he filed a civil action in the federal district court.

The district court issued an order affirming the Appeal Council's decision, finding that the ALJ did not make an error prejudicial to Kyle. Because this Court concludes that the ALJ had substantial evidence to make a finding that Kyle had acquired past relevant work skills that would transfer to other jobs, we affirm the judgment of the district court.

I. BACKGROUND

A. Factual Background

Kyle was born on March 1, 1955 and completed the 11th grade. On March 31, 2003, in his seventeenth year of employment at Formica Corporation and his eleventh year as a supervisor, Kyle was terminated. Kyle suffered from morbid obesity, his weight ranging from 350-471 pounds. According to primary care physician (PCP) John C. Capurro, M.D., and orthopedic surgeon, S. Michael Lawhon, M.D., his diagnoses prior to 2003 included low back pain, hypertension, fluid retention, cardiomegaly, degenerative joint disease (DJD) in both knees, a medial meniscus tear in his left knee, osteoarthritis, and chondromalacia.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.

In January 2007, Dana Bussing, M.D., prepared a RFC diagnosing facetogenic 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 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 the supervisor's way was not going to work. Despite this, Kyle “still got [the] job done.” Kyle continued to receive assignments, complete his paperwork, and, although he “might go around the way to do it,” achieved the same outcome. Kyle's “production numbers were good or better than anybody else. I didn't have no safety issues.” One day, the supervisor called him in and said they were going to terminate him. He was essentially fired.

Kyle told the ALJ he could not perform his former job as a supervisor because he could not stand, climb around the machines, or handle materials like he did before. He testified that he could, however, perform a paperwork job at a desk if he were allowed to stand up and walk around every 20 minutes or so. He testified that he sent out resumes and searched for jobs for ten months after he was terminated. He sought both management positions and regular hourly work. While he received interviews, he never worked again.

With respect to physical exertion, Kyle testified that he climbed three steps to get into his home, but was “fine” once he got in. He could walk about 100 feet before he needed to rest.

2. Testimony of Reviewing Medical Advisor Wayne Wheeler, M.D.

Dr. Wheeler testified that Kyle suffered from morbid obesity, lower back pain, perianal abscesses and knee pain. In Wheeler's opinion, Kyle's RFC limited him to sedentary work where he would never bend or stoop, could sit for six hours, and had to have easy access to the job. Since Kyle already climbed three stairs to get into his home, climbing that to get to his job would be reasonable, but any more than that would be a challenge.

3. Testimony of Vocational Expert George Parsons, PhD

The VE testified that Kyle's previous job of “finishing process operator, laminate” would have Dictionary of Occupational Titles (DOT) number 584.682-014 and would be classified as medium work with an SVP of 5.⁶ 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...