Husband v. Astrue

11-4723
Husband v. Astrue
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 20th day of November, two thousand twelve.
5
6 PRESENT: JOHN M. WALKER, JR.
7 RICHARD C. WESLEY,
8 PETER W. HALL,
9 Circuit Judges.
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12 Bryan William Husband,
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14 Plaintiff-Appellant,
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16 v. 11-4723
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18 Social Security Administration,
19 Commissioner, Michael J. Astrue,
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21 Defendants-Appellee.
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25 FOR APPELLANT: Sarah H. Bohr, Bohr & Harrington, LLC,
26 Atlantic Beach, FL; Judith Brownlow,
27 Brownlow Law PLLC, Brattleboro, VT.
28
29 FOR APPELLEE: Timothy Landry, Special Assistant United
30 States Attorney, Carol L. Shea, Chief,
31 Civil Division, for Tristram J. Coffin,
32 United States Attorney for the District
33 of Vermont, Burlington, VT.
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1 Appeal from the United States District Court for the
2 District of Vermont (Sessions, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5 AND DECREED that the judgment of the United States District
6 Court for the District of Vermont is AFFIRMED.
7 Plaintiff-Appellant Bryan William Husband appeals from
8 an order of the United States District Court for the
9 District of Vermont (Sessions, J.), affirming the
10 Commissioner’s decision to deny Husband’s applications for
11 disability insurance benefits and supplemental security
12 income, and denying Husband’s motion to reverse that
13 decision. The panel has reviewed the briefs and the record
14 in this appeal and agrees unanimously that oral argument is
15 unnecessary because “the facts and legal arguments [have
16 been] adequately presented in the briefs and record, and the
17 decisional process would not be significantly aided by oral
18 argument.” Fed. R. App. P. 34(a)(2)(C). We assume the
19 parties' familiarity with the underlying facts, the
20 procedural history, and the issues presented for review.
21 “When a district court has reviewed a determination of
22 the Commissioner, we review the administrative record de
23 novo to determine whether there is substantial evidence
2
1 supporting the Commissioner's decision and whether the
2 Commissioner applied the correct legal standard.” Poupore
3 v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per curiam)
4 (internal quotation marks and alteration omitted).
5 “Substantial evidence means more than a mere scintilla. It
6 means such relevant evidence as a reasonable mind might
7 accept as adequate to support a conclusion.” Burgess v.
8 Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal quotation
9 marks and citations omitted).
10 Upon such review, we affirm the order of the district
11 court for substantially the same reasons set forth in the
12 magistrate judge’s thorough and well-reasoned report and
13 recommendation dated August 5, 2011, which the district
14 court adopted in its entirety.1 Husband v. Astrue, No.
15 2:10-cv-228, 2011 WL 4068407, at *1 (D.Vt. Aug. 5, 2011),
16 adopted by, 2011 WL 4074654, at *1 (D.Vt. Sept. 12, 2011).
17
1
Husband failed to raise his obesity argument in his
objection to the report and recommendation, waiving further
judicial review. Cephas v. Nash, 328 F.3d 98, 107 (2d Cir.
2003). As this waiver does not appear to result in manifest
injustice, Krumme v. WestPoint Stevens Inc., 238 F.3d 133, 142
(2d Cir. 2000), the panel elects not to exercise its discretion
and evaluate the claim’s merits. Caidor v. Onondaga Cnty., 517
F.3d 601, 603 (2d Cir. 2008).
3
1 We have considered all of Husband’s arguments on appeal
2 and conclude that they are without merit. Accordingly, the
3 judgment of the district court is hereby AFFIRMED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
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