18‐3451‐cv Lau v. Commissioner of Social Security Administration

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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th day of December, two thousand nineteen.

PRESENT: DENNY CHIN, JOSEPH F. BIANCO, Circuit Judges.* ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

VICTOR FAI LAU, Plaintiff‐Appellant,

‐v‐ 18‐3451‐cv

COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant‐Appellee.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

* Judge Robert D. Sack, originally assigned to the panel, recused himself from consideration of this matter. The two remaining members of the panel, who are in agreement, have decided this case in accordance with Second Circuit Internal Operating Procedure E(b). See

(d). FOR PLAINTIFF‐APPELLANT: Victor Fai Lau, pro se, New York, New York.

FOR DEFENDANT‐APPELLEE: Joseph A. Pantoja and Christopher Connolly, Assistant United States Attorneys, for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, New York.

Appeal from a judgment of the United States District Court for the Southern

District of New York (Gorenstein, M.J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff‐appellant Victor Fai Lau appeals from a judgment of the district

court upholding a decision of the Commissioner of the Social Security Administration

(the ʺCommissionerʺ) that denied his claim for disability insurance benefits and granted

the Commissionerʹs motion for judgment on the pleadings.1 Lau also moves to strike

the Commissionerʹs opposition brief, arguing that the Commissionerʹs attorneys

intentionally misaddressed the Commissionerʹs opposition brief to deny Lau an

opportunity to reply. We assume the partiesʹ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

1 The parties consented to jurisdiction by a magistrate judge. See Dist. Ct. Dkt. No. 12. 2 ʺOn an appeal from the denial of disability benefits, we focus on the

administrative ruling rather than the district courtʹs opinion.ʺ Estrella v. Berryhill,

(2d Cir. 2019) (internal quotation marks omitted). In reviewing the

administrative record, we determine if there is ʺsubstantial evidence . . . to support the

Commissionerʹs decision and if the correct legal standards have been applied.ʺ

Substantial evidence is ʺevidence that a reasonable mind might accept as adequate to

support a conclusion.ʺ

Indeed, ʺonce an [administrative law judge] [(ʺ]ALJ[ʺ)]

finds facts, we can reject those facts only if a reasonable factfinder would have to

conclude otherwise.ʺ Brault v. Soc. Sec. Admin., Comm’r,

(2d Cir. 2012)

(internal quotation marks and emphasis omitted).

We affirm the judgment below, because we agree with the district court

that the Commissionerʹs ruling is supported by substantial evidence. First, Lau argues

that the ALJ improperly ignored medical evidence pertaining to his psychiatric

condition, improperly concluding that he did not have a severe psychiatric disability

during the relevant period, May 1, 2012, through his date last insured, December 31,

2014. See

(a) (ʺTo establish a period of disability, [the claimant] must

have disability insured status in the quarter in which [he] becomes disabled or in a later

quarter in which [he is] disabled.ʺ) The ALJ did, however, consider records submitted

3 from psychiatrists who saw Lau from 2015 onward, ultimately giving them little weight

because they did not treat Lau during the relevant time period. Lau offered no medical

evidence demonstrating that his psychiatric symptoms were disabling during the

relevant period. Accordingly, we conclude that the ALJʹs conclusions were supported

by substantial evidence. See Arnone v. Bowen,

(2d Cir. 1989).

Lau further argues that the ALJ improperly asked the vocational expert

hypothetical questions about occasional exposure to pulmonary irritants, and asserts

that his medical records demonstrated that he cannot be exposed to any irritants. Two

separate medical evaluations concluded, however, that Lau could be continuously

exposed to pulmonary irritants. Accordingly, we conclude that the ALJʹs questions

were appropriate. See

(b)(2).

Finally, Lau argues that the ALJ failed to consider whether his psychiatric

conditions combined with his reactive airway disease affected his ability to perform his

past work. The ALJ did, however, consider Lauʹs psychiatric records in determining

Lauʹs residual functional capacity, concluding that his statements regarding the

intensity, persistence, and limiting effects of his mental health symptoms were not

consistent with the medical evidence. Accordingly, we conclude that the ALJʹs

conclusions were supported by substantial evidence.

4 We also deny Lauʹs motion to strike the Commissionerʹs opposition brief.

While Lau argues that he did not timely receive a copy of the brief, the Commissioner

submitted a copy of the returned envelope showing Lauʹs correct address. Moreover,

the Court granted Lau an extension of time to file his reply brief which he did not, in any

event, use.

* * *

We have considered the remainder of Lauʹs arguments and find them to be

without merit. For the foregoing reasons, the judgment of the district court is

AFFIRMED and Lauʹs motion to strike the Commissionerʹs opposition brief is DENIED.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk of Court

5