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

the 18th 4 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
2

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
3

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