         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




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