         11-4723
         Husband v. Astrue

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                                  AMENDED
                                              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 21st day of November, two thousand twelve.
 5
 6       PRESENT: JOHN M. WALKER, JR.
 7                RICHARD C. WESLEY,
 8                PETER W. HALL,
 9                         Circuit Judges.
10
11
12       Bryan William Husband,
13
14                                     Plaintiff-Appellant,
15
16                      v.                                           11-4723
17
18       Social Security Administration,
19       Commissioner, Michael J. Astrue,
20
21                                     Defendants-Appellee.
22
23
24
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.
34
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

18


          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
6




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