DocketNumber: 13-3628
Citation Numbers: 576 F. App'x 36
Filed Date: 8/20/2014
Status: Non-Precedential
Modified Date: 1/13/2023
13-3628 Khan v. Torres AES UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 20th day of August, two thousand fourteen. 5 6 PRESENT: JOHN M. WALKER, JR., 7 DENNIS JACOBS, 8 RICHARD C. WESLEY, 9 Circuit Judges. 10 11 - - - - - - - - - - - - - - - - - - - -X 12 ANWAR KHAN, 13 Petitioner, 14 15 -v.- 13-3628 16 17 TORRES AES, INSURANCE COMPANY OF THE 18 STATE OF PENNSYLVANIA, UNITED STATES 19 DEPARTMENT OF LABOR, 20 Respondents. 21 - - - - - - - - - - - - - - - - - - - -X 22 23 FOR PETITIONER: SANG J. SIM, Sim & Record LLP, 24 Bayside, New York. 25 26 FOR APPELLEES: Robert N. Dengler, Flicker, 27 Garelick & Associates, LLP, New 28 York, New York. 1 1 Petition for review of an order of the United States 2 Department of Labor Benefits Review Board. 3 4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 5 AND DECREED that the petition be DENIED. 6 7 Anwar Khan petitions for review of an order of the 8 United States Department of Labor Benefits Review Board 9 (“BRB”), affirming the administrative law judge’s (“ALJ”) 10 denial of benefits under the Longshore and Harbor Workers’ 11 Compensation Act (“LHWCA”), as amended,33 U.S.C. § 901
et 12 seq., as extended by the Defense Base Act,42 U.S.C. § 1651
13 et seq. We assume the parties’ familiarity with the 14 underlying facts, the procedural history, and the issues 15 presented for review. 16 17 “Our review is limited to whether the BRB made any 18 errors of law and whether substantial evidence supports the 19 ALJ’s findings of fact.” Rainey v. Dir., Office of Workers’ 20 Comp.,517 F.3d 632
, 634 (2d Cir. 2008). Substantial 21 evidence is “evidence that a reasonable mind might accept as 22 adequate to support a factual conclusion.” New Haven 23 Terminal Corp. v. Lake,337 F.3d 261
, 265 (2d Cir. 2003). 24 We review any errors of law de novo.Id.
25 26 Khan argues the ALJ failed to apply the presumption of 2733 U.S.C. § 920
(a) to his disability claim. The ALJ 28 correctly applied the presumption in determining whether 29 Khan suffered from a work-related injury. However, the § 30 920(a) presumption does not apply in determining whether any 31 disability was caused or aggravated by a particular work- 32 related injury. A separate burden-shifting scheme governs 33 that inquiry. See Pietrunti v. Dir., Office of Workers’ 34 Comp. Programs,119 F.3d 1035
, 1038 (2d Cir. 1997); Palombo 35 v. Dir., Office of Workers’ Comp. Programs,937 F.2d 70
, 73 36 (2d Cir. 1991). Under that scheme, the employee must first 37 establish that the disability was caused by a work-related 38 injury. See Palombo,937 F.2d at 73
. Here, the ALJ 39 reviewed the entirety of the record and found the report by 40 Doctor Brief to be more credible than the one provided by 41 Doctor Singh as to causation. Therefore, the BRB committed 42 no error of law and the ALJ’s findings were supported by 43 substantial evidence. See Pietrunti,119 F.3d at
1042 44 (“Credibility findings of an ALJ are entitled to great 45 deference and therefore can be reversed only if they are 46 patently unreasonable.” (quotation marks omitted)). 47 2 1 We have considered all of Khan’s remaining arguments 2 and find them to be without merit. The petition for review 3 is thus DENIED. 4 5 FOR THE COURT: 6 CATHERINE O’HAGAN WOLFE, CLERK 7 3
Rainey v. DIR., OFFICE OF WORKERS'COMPENSATION , 517 F.3d 632 ( 2008 )
New Haven Terminal Corp., and Liberty Mutual Insurance Co. ... , 337 F.3d 261 ( 2003 )
Richard L. Palombo v. Director, Office of Workers' ... , 937 F.2d 70 ( 1991 )
anthony-pietrunti-v-director-office-of-workers-compensation-programs , 119 F.3d 1035 ( 1997 )