10-4876-cv
Potter v. Costello
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 TO 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 for
2 the Second Circuit, held at the Daniel Patrick Moynihan United
3 States Courthouse, 500 Pearl Street, in the City of New York, on
4 the 18th day of May, two thousand twelve.
5
6 PRESENT:
7 Richard C. Wesley,
8 Raymond J. Lohier, Jr.,
9 Christopher F. Droney,
10 Circuit Judges.
11 _____________________________________
12
13 ANTONIO T. POTTER,
14
15 Plaintiff-Appellant,
16
17 v. 10-4876-cv
18
19 JOHN P. COSTELLO,
20
21 Defendant,
22
23 COMMISSIONER OF SOCIAL SECURITY,
24
25 Defendant-Appellee.
26
27 _____________________________________
28
29
30 FOR APPELLANT: Antonio T. Potter, pro se,
31 Rochester, NY.
32
33 FOR APPELLEES: Elizabeth D. Rothstein, Special
34 Assistant United States Attorney,
35 Mary Ann Sloan, Acting Regional
1 Chief Counsel, Office of the General
2 Counsel for the Social Security
3 Administration, for William J.
4 Hochul, Jr., United States Attorney
5 for the Western District of New
6 York, New York, NY.
7 Appeal from a judgment of the United States District
8 Court for the Western District of New York (Larimer, J.).
9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
10 AND DECREED that the judgment of the district court is
11 AFFIRMED.
12 Appellant Antonio T. Potter, proceeding pro se, appeals
13 from the district court’s (Larimer, J.) November 1, 2010,
14 judgment on the pleadings in favor of the Commissioner of
15 Social Security (the “Commissioner”) in Potter’s action
16 seeking judicial review of a final decision of the
17 Commissioner. We assume the parties’ familiarity with the
18 underlying facts, the procedural history of the case, and
19 the issues on appeal.
20 We review de novo a district court’s decision granting
21 a motion for judgment on the pleadings. Desiano v.
22 Warner-Lambert & Co., 467 F.3d 85, 89 (2d Cir. 2006). Doing
23 so requires us to examine the administrative record “to
24 determine whether there is substantial evidence supporting
25 the Commissioner’s decision and whether the Commissioner
2
1 applied the correct legal standard.” Machadio v. Apfel, 276
2 F.3d 103, 108 (2d Cir. 2002). Substantial evidence is “more
3 than a mere scintilla” and “means such relevant evidence as
4 a reasonable mind might accept as adequate to support a
5 conclusion.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir.
6 2008) (internal quotation marks omitted).
7 Here, because Potter did not oppose or otherwise
8 respond to the Commissioner’s motion for judgment on the
9 pleadings, we will not consider the arguments in his brief
10 for the first time on appeal. See Bogle-Assegai v.
11 Connecticut, 470 F.3d 498, 504 (2d Cir. 2006). Moreover,
12 even if we were to exercise our discretion to consider
13 Potter’s arguments, see id., we would determine that, for
14 the reasons stated by the district court, the Commissioner’s
15 decision was legally correct and supported by substantial
16 evidence.
17 We have considered Appellant’s other arguments on
18 appeal and have found them to be without merit.
19 Accordingly, the judgment of the district court is hereby
20 AFFIRMED.
21
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
24
3