13-3628 Khan v. Torres AES



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER**  **J ANUARY**  **1, 2007,**  **IS PERMITTED AND IS GOVERNED BY F**  **EDERAL R** **ULE OF A** **PPELLATE P**  **ROCEDURE 32.1**  **AND THIS COURT ’**  **S L** **OCAL R** **ULE 32.1.1.**  **W HEN CITING A SUMMARY ORDER IN A**  **DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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**  **. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 20 th** **day of August, two thousand fourteen.** 4 5 **PRESENT: JOHN M. WALKER, JR.,** 6 **DENNIS JACOBS,** 7 **RICHARD C. WESLEY,** 8 **Circuit Judges**

**.** 9 10 - - - - - - - - - - - - - - - - - - - -X 11 **ANWAR KHAN,** 12 **Petitioner ,**  13 14 **-v.- 13-3628** 15 16 **TORRES AES, INSURANCE COMPANY OF THE** 17 **STATE OF PENNSYLVANIA, UNITED STATES** 18 **DEPARTMENT OF LABOR,** 19 **Respondents**

**.** 20 - - - - - - - - - - - - - - - - - - - -X 21 22 **FOR PETITIONER:** SANG J. SIM, Sim & Record LLP, 23 Bayside, New York. 24 25 **FOR APPELLEES:** Robert N. Dengler, Flicker, 26 Garelick & Associates, LLP, New 27 York, New York. 28

1Petition for review of an order of the United States 1 Department of Labor Benefits Review Board. 2 3 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 4 **AND DECREED**that the petition be **DENIED**

. 5 6 Anwar Khan petitions for review of an order of the 7 United States Department of Labor Benefits Review Board 8 (“BRB”), affirming the administrative law judge’s (“ALJ”) 9 denial of benefits under the Longshore and Harbor Workers’ 10 Compensation Act (“LHWCA”), as amended, 33 U.S.C. § 901 et 11 seq. , as extended by the Defense Base Act, 42 U.S.C. § 1651 12 et seq. We assume the parties’ familiarity with the 13 underlying facts, the procedural history, and the issues 14 presented for review. 15 16 “Our review is limited to whether the BRB made any 17 errors of law and whether substantial evidence supports the 18 ALJ’s findings of fact.” Rainey v. Dir., Office of Workers’ 19 Comp. , 517 F.3d 632, 634 (2d Cir. 2008). Substantial 20 evidence is “evidence that a reasonable mind might accept as 21 adequate to support a factual conclusion.” New Haven 22 Terminal Corp. v. Lake , 337 F.3d 261, 265 (2d Cir. 2003). 23 We review any errors of law de novo . Id. 24 25 Khan argues the ALJ failed to apply the presumption of 26 33 U.S.C. § 920(a) to his disability claim. The ALJ 27 correctly applied the presumption in determining whether 28 Khan suffered from a work-related injury. However, the § 29 920(a) presumption does not apply in determining whether any 30 disability was caused or aggravated by a particular work31 related injury. A separate burden-shifting scheme governs 32 that inquiry. See Pietrunti v. Dir., Office of Workers’ 33 Comp. Programs , 119 F.3d 1035, 1038 (2d Cir. 1997); Palombo 34 v. Dir., Office of Workers’ Comp. Programs , 937 F.2d 70, 73 35 (2d Cir. 1991). Under that scheme, the employee must first 36 establish that the disability was caused by a work-related 37 injury. See Palombo , 937 F.2d at 73. Here, the ALJ 38 reviewed the entirety of the record and found the report by 39 Doctor Brief to be more credible than the one provided by 40 Doctor Singh as to causation. Therefore, the BRB committed 41 no error of law and the ALJ’s findings were supported by 42 substantial evidence. See Pietrunti , 119 F.3d at 1042 43 (“Credibility findings of an ALJ are entitled to great 44 deference and therefore can be reversed only if they are 45 patently unreasonable.” (quotation marks omitted)). 46 47

2We have considered all of Khan’s remaining arguments 1 and find them to be without merit. The petition for review 2 is thus **DENIED**

. 3 4 FOR THE COURT: 5 CATHERINE O’HAGAN WOLFE, CLERK 6 7

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