DAS v. COMMISSIONER OF SOCIAL SECURITY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

BEAUTI RANI D.,

Plaintiff, 1:21-cv-13020-NLH

v. OPINION

COMMISSIONER OF SOCIAL

SECURITY,1

APPEARANCES:

ADRIENNE FREYA JARVIS

800 NORTH KINGS HIGHWAY

SUITE 304

CHERRY HILL, NJ 08034

On behalf of Plaintiff

ELIZABETH ANN CORRITORE

SOCIAL SECURITY ADMINISTRATION

OFFICE OF THE GENERAL COUNSEL

300 SPRING GARDEN STREET

6TH FLOOR

PHILADELPHIA, PA 19123

On behalf of the Commissioner

HILLMAN, District Judge

This matter comes before the Court pursuant to Section

205(g) of the Social Security Act, as amended, 42 U.S.C. §

1 On July 9, 2021, Kilolo Kijakazi became the Acting Commissioner

of the Social Security Administration.

405(g), regarding Plaintiff’s application for Disability

Insurance Benefits (“DIB”)2 under Title II of the Social Security

Act. 42 U.S.C. § 423, et seq. The issue before the Court is

whether the Administrative Law Judge (“ALJ”) erred in finding

that there was “substantial evidence” that Plaintiff was not

disabled at any time since her alleged onset date of disability,

August 13, 2017. For the reasons stated below, this Court will

affirm that decision.

I. BACKGROUND AND PROCEDURAL HISTORY

On July 26, 2018, Plaintiff filed an application for DIB,

alleging that she became disabled on August 13, 2017.3 (R. at

29). Plaintiff claims that she can no longer work as a data

entry clerk, medical assistant, cashier/waiter, or cook helper

because of her impairments of rheumatoid arthritis, thyroid

problem, cornea problem in both eyes, knee pain in both knees,

chronic pain, carpal tunnel in both hands, trouble sleeping,

depression, anxiety, headaches, anemia, and nerve pain in chest

2 DIB is a program under the Social Security Act to provide

disability benefits when a claimant with a sufficient number of

quarters of insured employment has suffered such a mental or

physical impairment that the claimant cannot perform substantial

gainful employment for at least twelve months. 42 U.S.C. § 423

et seq.

3 On the date of her application Plaintiff was 38 years old,

which is defined as a “younger person” (age 49 and under). 20

C.F.R. § 404.1563.

area.4 (Id. at 371).

Plaintiff’s claim was denied initially and upon

reconsideration. (R. at 29). Plaintiff requested a hearing

before an ALJ, which was held on March 9, 2020, July 23, 2020,

and September 15, 2020. (Id.) On September 25, 2020, the ALJ

issued an unfavorable decision. (Id.) Plaintiff’s Request for

Review of Hearing Decision was denied by the Appeals Council on

April 27, 2021, making the ALJ’s decision final. (Id. at 1).

Plaintiff brings this civil action for review of the

Commissioner’s decision.

II. DISCUSSION

A. Standard of Review

Under 42 U.S.C. § 405(g), Congress provided for judicial

review of the Commissioner’s decision to deny a complainant’s

application for social security benefits. Ventura v. Shalala,

55 F.3d 900, 901 (3d Cir. 1995). A reviewing court must uphold

the Commissioner’s factual decisions where they are supported by

“substantial evidence.” 42 U.S.C. §§ 405(g), 1383(c)(3);

Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001); Sykes v.

Apfel, 228 F.3d 259, 262 (3d Cir. 2000); Williams v. Sullivan,

970 F.2d 1178, 1182 (3d Cir. 1992). Substantial evidence means

4 The Court phrases Plaintiff’s claimed impairments exactly as

she phrased them in her disability report dated September 21,

2018.

more than “a mere scintilla.” Richardson v. Perales, 402 U.S.

389, 401 (1971)(quoting Consolidated Edison Co. V. NLRB, 305

U.S. 197, 229 (1938)). It means “such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.” Id. The inquiry is not whether the reviewing

court would have made the same determination, but whether the

Commissioner’s conclusion was reasonable. See Brown v. Bowen,

845 F.2d 1211, 1213 (3d Cir. 1988).

A reviewing court has a duty to review the evidence in its

totality. See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir.

1984). “[A] court must ‘take into account whatever in the

record fairly detracts from its weight.’” Schonewolf v.

Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (quoting Willbanks

v. Secretary of Health & Human Servs., 847 F.2d 301, 303 (6th

Cir. 1988) (quoting Universal Camera Corp. V. NLRB, 340 U.S.

474, 488 (1951)).

The Commissioner “must adequately explain in the record his

reasons for rejecting or discrediting competent evidence.”

Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing

Brewster v. Heckler, 786 F.2d 581 (3d Cir. 1986)). The Third

Circuit has held that an “ALJ must review all pertinent medical

evidence and explain his conciliations and rejections.” Burnett

v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000).

Similarly, an ALJ must also consider and weigh all the non-

medical evidence before him. Id. (citing Van Horn v. Schweiker,

717 F.2d 871, 873 (3d Cir. 1983)); Cotter v. Harris, 642 F.2d

700, 707 (3d Cir. 1981).

The Third Circuit has held that access to the

Commissioner’s reasoning is indeed essential to a meaningful

court review:

Unless the [Commissioner] has analyzed all

evidence and has sufficiently explained the

weight he has given to obviously probative

exhibits, to say that his decision is

supported by substantial evidence approaches

an abdication of the court’s duty to

scrutinize the record as a whole to

determine whether the conclusions reached

are rational.

Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978). Although

an ALJ, as the factfinder, must consider and evaluate the

medical evidence presented, Fargnoli, 247 F.3d at 42, “[t]here

is no requirement that the ALJ discuss in its opinion every

tidbit of evidence included in the record,” Hur v. Barnhart, 94

F. App’x 130, 133 (3d Cir. 2004). In terms of judicial review,

a district court is not “empowered to weigh the evidence or

substitute its conclusions for those of the fact-finder.”

Williams, 970 F.2d at 1182. However, apart from the substantial

evidence inquiry, a reviewing court is entitled to satisfy

itself that the Commissioner arrived at his decision by

application of the proper legal standards. Sykes, 228 F.3d at

262; Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983);

Curtin v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981).

B. Standard for DIB

The Social Security Act defines “disability” for purposes

of an entitlement to a period of disability and disability

insurance benefits as 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. See 42 U.S.C. §

1382c(a)(3)(A). Under this definition, a plaintiff qualifies as

disabled only if her physical or mental impairments are of such

severity that she is not only unable to perform her past

relevant work, but cannot, given her age, education, and work

experience, engage in any other type of substantial gainful work

which exists in the national economy, regardless of whether such

work exists in the immediate area in which she lives, or whether

a specific job vacancy exists for her, or whether she would be

hired if she applied for work. 42 U.S.C. § 1382c(a)(3)(B).

The Commissioner has promulgated regulations for

determining disability that require application of a five-step

sequential analysis. See 20 C.F.R. § 404.1520. This five-step

process is summarized as follows:

1. If the claimant currently is engaged in substantial

gainful employment, she will be found “not disabled.”

2. If the claimant does not suffer from a “severe

impairment,” she will be found “not disabled.”

3. If the severe impairment meets or equals a listed

impairment in 20 C.F.R. Part 404, Subpart P, Appendix

1 and has lasted or is expected to last for a

continuous period of at least twelve months, the

claimant will be found “disabled.”

4. If the claimant can still perform work she has done in

the past (“past relevant work”) despite the severe

impairment, she will be found “not disabled.”

5. Finally, the Commissioner will consider the claimant’s

ability to perform work (“residual functional

capacity”), age, education, and past work experience

to determine whether or not she is capable of

performing other work which exists in the national

economy. If she is incapable, she will be found

“disabled.” If she is capable, she will be found “not

disabled.”

20 C.F.R. § 404.1520(b)-(f). Entitlement to benefits is

therefore dependent upon a finding that the claimant is

incapable of performing work in the national economy.

This five-step process involves a shifting burden of proof.

See Wallace v. Secretary of Health & Human Servs., 722 F.2d

1150, 1153 (3d Cir. 1983). In the first four steps of the

analysis, the burden is on the claimant to prove every element

of her claim by a preponderance of the evidence. See id. In

the final step, the Commissioner bears the burden of proving

that work is available for the Plaintiff: “Once a claimant has

proved that he is unable to perform his former job, the burden

shifts to the Commissioner to prove that there is some other

kind of substantial gainful employment he is able to perform.”

Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987); see Olsen v.

Schweiker, 703 F.2d 751, 753 (3d Cir. 1983).

C. Analysis

At step one, the ALJ found that Plaintiff had not engaged

in substantial gainful activity since August 13, 2017,

Plaintiff’s alleged onset date and that she had sufficient

insurance coverage through March 31, 2019. (R. at 32). At step

two, the ALJ found that Plaintiff’s impairments of degenerative

joint disease-bilateral knees, degenerative disc disease-

cervical and lumbar, status post-knee surgery, rheumatoid

arthritis, and carpal tunnel syndrome-bilateral were severe.

(R. at 33).

The ALJ also determined that her impairments of obesity,

insomnia, bilateral keratoconjunctivitis sicca (dry eyes),

hypothyroidism, trigger fingers-bilateral, anemia,

hyperlipidemia, gastroesophageal reflux disease (GERD), and

status post-breast lumpectomy/breast mass excision, and breast

abscess incision/drainage, were not severe.5 (Id. at 34). At

5 The Court notes that the list of impairments that the ALJ

analyzed is lengthier and somewhat varied compared to the list

of impairments that Plaintiff presented in her disability

report. The Court presumes that from her independent review of

the record, the ALJ determined that her list of impairments was

most accurate. Indeed, that is consistent with an ALJ’s duty to

scrutinize the record for evidence of impairments. Plummer v.

Apfel, 186 F.3d 422, 433 (3d Cir. 1999) (“In all cases, however,

the ALJ has a duty to consider all evidence of impairments in

the record.”). Regardless, Plaintiff does not identify as error

step three, the ALJ determined that Plaintiff’s severe

impairments or her severe impairments in combination with her

other impairments did not equal the severity of one of the

listed impairments. (Id. at 33-38).

The ALJ next determined that Plaintiff had the residual

functional capacity (“RFC”) to perform work at the sedentary

level,6 with certain exertional restrictions. (Id. at 40). At

steps four and five, the ALJ determined that based on

Plaintiff’s RFC, she would not be able to perform her past

relevant work but would be able to perform sedentary occupations

such as addresser and sorter. (Id. at 50-52).

From the Court’s review of Plaintiff’s briefing, the Court

discerns four areas of concern: (1) whether the ALJ erred in

finding that Plaintiff had no limitation on reaching other than

a prohibition on overhead reaching; (2) whether the ALJ erred in

finding that Plaintiff could frequently handle and finger

objects; (3) whether the ALJ erred in finding that Plaintiff’s

chronic anemia was not a “severe” impairment; and (4) whether

the ALJ erred in the decision that Plaintiff could perform

the ALJ’s longer list of impairments.

6 20 C.F.R. § 404.1567 (“Physical exertion requirements. To

determine the physical exertion requirements of work in the

national economy, we classify jobs as sedentary, light, medium,

heavy, and very heavy.”).

significant numbers of jobs at step 5. (ECF 12 at 1).

i. Plaintiff’s Limitations in Reaching and Fingering

and Handling

The Court considers Plaintiff’s first two assignments of

error together because they stem from Plaintiff’s contention

that the ALJ improperly discounted the medical opinions of three

of Plaintiff’s doctors, Drs. Oxenberg, Harhay, and Cilursu. (See

ECF 12 at 4-5). The Court rejects Plaintiff’s first two

assignments of error. Plaintiff first argues that the ALJ

improperly rejected the three opinions on the basis that they

were not supported by objective findings and, second, that the

ALJ improperly required that each of the doctors indicate how

long they had treated Plaintiff. (ECF 12 at 8-14). With

respect to Dr. Cilursu’s opinion in particular, Plaintiff argues

that the ALJ ignored the fact that Dr. Cilursu’s opinion on

reaching referenced inflammation which is objective medical

evidence regarding Plaintiff’s reaching abilities. (Id. at 8).

Plaintiff mischaracterizes the ALJ’s opinion. The ALJ

stated that she was rejecting those medical opinions because

they “failed to offer an adequate written explanation with

citation to objective findings[.]” (R. at 47-49). The ALJ was

free to discount those opinions on that basis especially given

the lengthy analysis that she conducted for each of the doctors’

medical opinions. Burnett, 220 F.3d at 122. The Court has

reviewed the record and finds no reason to substitute its

judgment for that of the ALJ. See Williams, 970 F.2d at 1182.

Thus, to the extent that the doctors were not required to

explicitly state how long they had been seeing Plaintiff and

that the ALJ stated that they should have, the ALJ separately

discounted the opinions on the permissible basis that they were

not adequately explained. W.P. v. Comm'r of Soc. Sec., No. CV

21-2940 (RBK), 2022 WL 2341561, at *1 (D.N.J. June 29, 2022)

(noting that medical opinions that are accompanied by supporting

explanations are more persuasive) (citing 20 C.F.R. §

404.1520c(c)(1)). Thus, the Court finds no error with the ALJ’s

conclusions regarding Plaintiff’s ability to reach and to finger

and handle.

ii. Designation of Plaintiff’s Anemia as a Non Severe

Impairment

Plaintiff’s next contention is that the ALJ erred in

finding that Plaintiff’s anemia was not a severe impairment.

(ECF 12 at 13). She argues that the ALJ’s conclusion that her

anemia was not severe because it was controlled by infusions,

which the ALJ considered a “conservative” treatment, was not

supported by substantial evidence because the ALJ did not

identify a more aggressive alternative treatment. (Id. at 12-

14). Notably, Plaintiff does not cite any authority that

requires the ALJ to identify more aggressive alternative

treatment methods after opining that a course of treatment is

conservative. Plaintiff appears to be trying to shift the

burden at step 2, which was on her, to the ALJ. Kocovska v.

Comm'r Of Soc. Sec., No. CIV.A.07-5365 PGS, 2008 WL 4513284, at

*6 (D.N.J. Sept. 26, 2008) (“At Step 2, the Plaintiff has the

burden of proof, and there is nothing in the record as a whole

which remotely suggests severe impairment during the Period of

Disability.”).

In addition, and critically, the infusions that Plaintiff

cites as treatment for her anemia and as evidence that her

condition was severe occurred after March 31, 2019, Plaintiff’s

date of last insured. (R. at 35). Plaintiff had to establish

the severity of the impairment prior to the date last insured.

John M. v. Kijakazi, No. 1:20-CV-15012, 2022 WL 489460, at *8

(D.N.J. Feb. 17, 2022) (finding no error with the ALJ’s

determination that an impairment was not severe where the

plaintiff did not establish great limitations associated with

the condition prior to the date last insured). Notwithstanding

that requirement, the ALJ dedicated a detailed paragraph to

discussing Plaintiff’s anemia and that multiple treatment notes

described her as “asymptomatic” and that Plaintiff specifically

denied abnormal vaginal bleeding multiple times. (R. at 35).

Plaintiff also mischaracterizes the ALJ’s opinion in that the

ALJ referred to Plaintiff’s “treatment via medication,

prescription and over the counter” as conservative, not the

infusions. (Id.) Finally, the ALJ stated multiple times that

she was incorporating her severity determinations into the RFC.

(Id. at 38-46). Thus, to the extent that it was error to

determine that Plaintiff’s anemia was not severe, such error was

harmless. Friday v. Comm'r of Soc. Sec., No. 1:20-CV-04504-NLH,

2021 WL 3879081, at *4 (D.N.J. Aug. 31, 2021) (“Thus, typically

when an ALJ finds that the claimant has at least one severe

impairment at step two and continues onto the subsequent steps,

omission of another impairment at step two is harmless error.

The error at step two is only harmless, however, where the ALJ

has considered the missing medically determinable impairment in

the RFC determination and it would not otherwise affect the

outcome of the case.”). Thus, the Court finds no error with the

ALJ’s severity determination.

iii. Determination that Plaintiff Could Perform Jobs

that Existed in Significant Numbers at Step 5.

Plaintiff argues that the ALJ erred in determining at step

5 that Plaintiff could perform the jobs of addresser and sorter.

(ECF 12 at 16). Plaintiff contends that it was error to find

that she could work as a sorter where that position was

classified as semiskilled by the Dictionary of Occupation Titles

(the “DOT”) but the ALJ stated that she did not need to make a

finding on the transferability of Plaintiff’s skills. (Id. at

17). Separately, Plaintiff argues that the job of addresser is

obsolete and thus not an appropriate occupation for the ALJ to

rely upon at Step 5. (Id. at 19). Plaintiff also argues that

the vocational expert (the “VE”) did not provide appropriate job

incidence data about the two occupations and that the ALJ

violated Plaintiff’s due process rights by not allowing her

counsel to question the VE regarding regional job incidence data

for the two jobs. (Id.)

The Court will not remand on any of these bases. First,

the Court notes that there appears to be some tension between

the caselaw and the regulations regarding the findings that an

ALJ must make regarding transferability. The ALJ cited SSR 82-

41 and 20 C.F.R. § Pt. 404, Subpt. P, App. 2 for the proposition

that “[t]ransferability of job skills is not material to the

determination of disability because using the Medical-Vocational

Rules as a framework supports a finding that the claimant is

‘not disabled,’ whether or not the claimant has transferable job

skills[.]” (R. at 51). That is an accurate reading of the

Medical Vocational Guidelines. 20 C.F.R. § Pt. 404, Subpt. P,

App. 2 (stating that younger individuals with at least a high

school education and who are limited to sedentary work should be

found not disabled regardless of whether they have transferrable

skills).7 That said, there is some case law suggesting that

before an ALJ determines that a plaintiff can do skilled or

semiskilled work, they must make a finding on transferability.

See Destefano v. Astrue, No. CIV.A. 07-3750, 2009 WL 113744, at

*8 (E.D. Pa. Jan. 14, 2009) (“In determining whether a claimant

can perform other work, the Commissioner must consider whether

he or she has transferable skills from his/her past work.”);

Emery v. Astrue, No. 07-2482, 2008 WL 5352923, at *3 (E.D. Pa.

July 21, 2008), report and recommendation adopted, No. CIV.A.

07-2482, 2008 WL 5272454 (E.D. Pa. Dec. 18, 2008) (“The

Commissioner has conceded that the ALJ erred in finding that

Emery had no transferable skills, and then identifying

semiskilled jobs for her.”).

Even if it was error for the ALJ not to enumerate

7 SSR 82-41 reads, “When the table rules in Appendix 2 are

applicable to a case, transferability will be decisive in the

conclusion of ‘disabled’ or ‘not disabled’ in only a relatively

few instances because, even if it is determined that there are

no transferable skills, a finding of ‘not disabled’ may be based

on the ability to do unskilled work.” Reading between the

lines, it appears that the idea that transferability is

irrelevant comes from the assumption that a plaintiff could at

least do unskilled work. The regulations are silent though, as

to whether that means at step 5 that an ALJ who does not make a

finding on transferability may only look at unskilled

occupations to determine if there are alternative jobs for a

given plaintiff. Here the sorter occupation is semiskilled and

the addresser occupation is unskilled. (R. at 52). To the

extent that a transferable skills analysis is not required if

one of the available positions, as here, is unskilled, there is

no error.

Plaintiff’s transferrable skills that would allow her to perform

the sorter job, remand is inappropriate here because “the

evidence of record clearly supports the conclusion that

[Plaintiff] does have the transferable skills which permit her

to do semiskilled work.” Emery, 2008 WL 5352923 at *3. Indeed,

the ALJ’s questions to the VE that led to the identification of

the sorter job incorporated Plaintiff’s background, education,

and impairments. (See R. at 110-11). The Court will not remand

where it would be a futile exercise. Rutherford v. Barnhart,

399 F.3d 546, 553 (3d Cir. 2005) (“[A] remand is not required

here because it would not affect the outcome of the case.”).

Separately, Plaintiff argues that the ALJ erred in citing

the addresser position as an alternative occupation because it

is obsolete. (ECF 12 at 19). Whereas as a practical matter,

the addresser job may be becoming less and less common in the

modern world, it is still listed as an occupation in the DOT and

thus its consideration is presumptively justified. See Norabeth

D. v. Kijakazi, No. 1:21-CV-12874, 2022 WL 2952913, at *9

(D.N.J. July 26, 2022) (“‘[T]he DOT remains an appropriate

source of occupational data. Under 20 C.F.R. § 404.1566(d)(1),

the Social Security Administration may take administrative

notice of job information from the DOT.’”) (quoting Devault v.

Astrue, No. 13-0155, 2014 WL 3565972, at *6 (W.D. Pa. July 18,

2014)). Though this Court shares Plaintiff’s concern about

whether the addresser position in the DOT is up to date, it is

not empowered to rewrite the DOT. Jean-Pierre v. Comm'r of Soc.

Sec., No. 1:16-CV-05691-NLH, 2017 WL 4316880, at *9 (D.N.J.

Sept. 28, 2017) (“It is not for this Court to reform the

methodology that SSA VEs use to determine available and

appropriate jobs in the national economy that match a claimant's

RFC.”).

Relatedly, Plaintiff argues that the ALJ’s determination

that there were 60,000 addresser jobs and 2,900,000 sorter jobs

nationally was in error. (ECF 12 at 18-19). Plaintiff bases

this argument on the fact that the number of jobs identified by

the VE was not based on the DOT. (Id.) Plaintiff misses the

fact that the ALJ may take notice of various sources on job

statistics and may also rely on the testimony of a VE. 20

C.F.R. § 404.1566(d), (e). The ALJ explicitly relied on the

VE’s expertise in making a finding on job incidence rates. (R.

at 52 (“[T]he undersigned acknowledges that the number of jobs

cited by the vocational expert is an estimate that he has based

on reliable information from various sources, some of which the

undersigned takes administrative notice, such as the Bureau of

Labor Statistics[.]”)). The VE testified that he took the

numbers on job incidence from the Bureau of Labor Statistics.

(R. at 129-30). That was a permissible source for the VE to

consult and the Court will not second guess that figure without

more. 20 C.F.R. § 404.1566(d) (listing a publication by the

Bureau of Labor Statistics as an example of an acceptable source

of job incidence data); Poole v. Saul, 462 F. Supp. 3d 137, 163

(D. Conn. 2020) (“An ALJ does not err when he relies on a

vocational expert's testimony that is based on personal

experience, labor market surveys, and published statistical

sources in determining the number of jobs available. Further, it

is sufficient that the vocational expert identified the sources

he generally consulted to determine job incidence numbers.”)

(internal citations and quotation marks omitted).

Finally, Plaintiff argues that the ALJ erred by not making

findings on the regional job incidence of the sorter and

addresser jobs and by not allowing Plaintiff’s counsel to

question the VE about regional statistics. (ECF 12 at 19-20).

Plaintiff misstates the standard. If there is sufficient work

in the national economy, not just regional, that Plaintiff can

do, the ALJ will have met her burden at step five. See 20

C.F.R. § 416.966(b)8 Although not binding precedent, consistent

8 20 C.F.R. § 416.966(b) (“ Work exists in the national economy

when there is a significant number of jobs (in one or more

occupations) having requirements which you are able to meet with

your physical or mental abilities and vocational qualifications.

Isolated jobs that exist only in very limited numbers in

relatively few locations outside of the region where you live

are not considered work which exists in the national economy.

We will not deny you disability benefits on the basis of the

existence of these kinds of jobs. If work that you can do does

not exist in the national economy, we will determine that you

with the cited regulation, a panel of the Third Circuit has

affirmed a finding that there was no disability where there were

thousands of jobs available in the national economy after a step

5 analysis. Phillips v. Barnhart, 91 F. App'x 775, 778 (3d Cir.

2004). Here, the ALJ found millions of sorter jobs and tens of

thousands of addresser jobs in the national economy. (R. at

52). For the reasons stated above, the Court will not second

guess those figures.

Separately, to the extent that Plaintiff argues that her

due process rights were violated because her counsel was not

allowed to question the VE regarding regional statistics, that

argument fails. To prevail on a due process claim, Plaintiff

must show prejudice. Herring v. Colvin, 181 F. Supp. 3d 258,

273 (M.D. Pa. 2014) (“[T]he Third Circuit has repeatedly and

clearly enunciated a prejudice requirement in the context of an

ALJ's requirement to develop the record.”) (citing U.S. ex rel.

Doggett v. Yeager, 472 F.2d 229, 238 (3d Cir.1973)); Pena v.

Comm'r of Soc. Sec., 489 F. App'x 401, 403 (11th Cir. 2012) (“In

a social security case, the ALJ has a basic obligation to

develop a full and fair record. But we have indicated that

there must be a showing of prejudice before we will find that

are disabled. However, if work that you can do does exist in

the national economy, we will determine that you are not

disabled.”).

the claimant's right to due process has been violated to such a

degree that the case must be remanded to the Secretary for

further development of the record.”) (internal citations and

quotation marks omitted). Plaintiff argues that she was

prejudiced because she was entitled to a determination of

whether the jobs existed regionally. (ECF 12 at 20-22). As

stated above, the yardstick for job incidence is the national

economy. Virginia R. v. Comm'r of Soc. Sec., No. CV 20-20687

(KM), 2022 WL 671362, at *4 (D.N.J. Mar. 7, 2022) (considering

SSR 96-9p in the context of job prevalence in the national

economy). The ALJ conducted lengthy hearings over the course of

three days. (R. at 29). The Court sees nothing in the record

that suggests that Plaintiff’s due process rights were violated

and that she was prejudiced by any such violation. The Court

will not remand on that basis.

III. Conclusion

For the reasons expressed above, the decision of the ALJ

was supported by substantial evidence and must be affirmed.

An accompanying Order will be issued.

Date: September 28, 2022 _s/ Noel L. Hillman

At Camden, New Jersey NOEL.L. HILLMAN, U.S.D.J.