     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
27   33 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




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