12-1557-cv
Glen Alan Sweet v. Michael J. 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.

        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 31st
day of January, two thousand thirteen.

PRESENT:

                    JOSÉ A. CABRANES,
                    RICHARD C. WESLEY,
                                 Circuit Judges.
                    JESSE M. FURMAN,
                                 District Judge.*

_____________________________________

GLEN ALAN SWEET,

                              Plaintiff-Appellant,

                    v.                                                           No. 12-1557-cv

MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,

                              Defendant-Appellee,

_____________________________________




          *
            The Honorable Jesse M. Furman, of the United States District Court for the Southern District of New York,
sitting by designation.

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FOR PLAINTIFF-APPELLANT:                                 JAYA SHURTLIFF, Law Offices of Kenneth
                                                         Hiller, Amherst, NY.

FOR DEFENDANTS-APPELLEES:                                ROBERT R. SCHRIVER, Special Assistant
                                                         United States Attorney (Stephen P. Conte,
                                                         Regional Chief Counsel–Region II, Office of
                                                         the General Counsel, Social Security
                                                         Administration, on the brief) for William J.
                                                         Hochul, Jr., United States Attorney, Western
                                                         District of New York, Buffalo, NY.

         Appeal from a judgment of the United States District Court for the Western District of New

York (William M. Skretny, Chief Judge).

         UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the District Court’s March 28, 2012 Decision and Order is

AFFIRMED.

         Glen Alan Sweet appeals from the District Court’s dismissal of his complaint, which seeks

review of a final decision of the Commissioner of Social Security (“Commissioner”). The

Commissioner previously had denied his application for disability insurance benefits. We assume

the parties’ familiarity with the underlying facts and procedural history of the case, as well as the

issues on appeal.

                                                DISCUSSION

         This Court reviews de novo orders granting motions for judgment on the pleadings pursuant

to Federal Rule of Civil Procedure 12(c). See Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir. 2003).

When reviewing determinations made by the Commissioner, this Court conducts a “plenary review

of the administrative record.” Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (internal quotation

marks and citations omitted). This Court may set aside the Commissioner’s decision only if the

factual findings are not supported by substantial evidence, or if incorrect legal standards were

applied. See, e.g., id. at 127.



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        Under the Social Security Act, a “disability” is an “inability to engage in any substantial

gainful activity by reason of any medically determinable physical or mental impairment which can be

expected to result in death or which has lasted or can be expected to last for a continuous period of

not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). To determine whether an individual is disabled,

the Social Security Administration Commission created a five-step sequential evaluation process. See

20 C.F.R. § 404.1520. The analysis proceeds as follows:


                         First, the [Commissioner] considers whether the claimant is
                currently engaged in substantial gainful activity. If he is not, the
                [Commissioner] next considers whether the claimant has a "severe
                impairment" which significantly limits his physical or mental ability to
                do basic work activities. If the claimant suffers such an impairment,
                the third inquiry is whether, based solely on medical evidence, the
                claimant has an impairment which is listed in Appendix 1 of the
                regulations. If the claimant has such an impairment, the
                [Commissioner] will consider him disabled without considering
                vocational factors such as age, education, and work experience; the
                [Commissioner] presumes that a claimant who is afflicted with a
                "listed" impairment is unable to perform substantial gainful activity.
                Assuming the claimant does not have a listed impairment, the fourth
                inquiry is whether, despite the claimant's severe impairment, he has
                the residual functional capacity to perform his past work. Finally, if
                the claimant is unable to perform his past work, the [Commissioner]
                then determines whether there is other work which the claimant
                could perform.

        Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir. 1983). The claimant bears the burden of

proving the first four elements, and, with regard to the fifth element, there is a limited burden shift

to the Commissioner only to show “that there is work in the national economy that the claimant can

do . . . .” Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (citing 20 C.F.R. § 404.1560(c)(2)).

        Having conducted a plenary review of the administrative record, we conclude that the

Commissioner’s decision was supported by substantial evidence in the record, and we affirm the

judgment of the District Court substantially for the reasons stated in its well-reasoned decision.

In affirming the District Court’s judgment, we note that because this Court generally does not


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review arguments raised for the first time on appeal, see Poupore, 566 F.3d at 306 (“[A]t least where

the claimant is represented by counsel before the district court, the claimant must present [his or

her] relevant legal arguments in that forum in order to preserve them for appellate review.”), we only

consider Sweet’s arguments raised below, including that: (1) the Administrative Law Judge’s (ALJ)

residual functional capacity (“RFC”) assessment is not supported by substantial evidence; and (2) the

ALJ erred in assessing Sweet’s credibility.1 Upon review, there was substantial medical evidence in

the record that supported the ALJ’s determination that Sweet retained the capacity to perform

“medium work,” see 20 C.F.R. 404.1567(c) and 416.967(c), including Dr. Toor’s assessment of

Sweet’s physical limitations and the psychiatric opinions of Dr. Ryan and Dr. Mohan. Similarly, we

find that the ALJ did not err in his credibility determinations of Sweet’s testimony, because his

determination was supported by substantial evidence in the record as a whole. See, e.g., Aponte v.

Sec’y, Dep’t of Health and Human Servs., 728 F.2d 588, 591 (2d Cir. 1984) (“[T]here was substantial

evidence in the record as a whole to support the Secretary’s determination that [claimant] was not

disabled by reason of her physical impairments or pain.”).

                                                      CONCLUSION

         We have considered all of Sweet’s arguments on appeal and find them to be without merit.

Accordingly, the District Court’s March 28, 2012 Order is AFFIRMED.



                                                                FOR THE COURT:
                                                                Catherine O’Hagan Wolfe, Clerk




         1
             The bar to raising new issues on appeal “may be overcome only when necessary to avoid manifest injustice.”
See Ridinger v. Dow Jones & Co., Inc., 651 F.3d 309, 317 (2d Cir. 2011) (internal quotation marks omitted). We see no
potential for manifest injustice here.

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