United States District Court, E.D. Virginia, Newport News Division
PHILLIP W. TYREE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.
L. Wright Allen United States District Judge
Phillip Tyree ("Plaintiff) brought this action under 42
U.S.C. § 405(g) seeking judicial review of the final
decision of the Social Security Commissioner ("the
Commissioner") to deny his claim for Supplemental
Security Income (''SSI") under the Social
Security Act. Pursuant to 28 U.S.C. §§ 636(b)(1)(B)
and (C), Federal Rule of Civil Procedure 72(b), and the Local
Rules, this matter was referred to United States Magistrate
Judge Lawrence R. Leonard for a Report and Recommendation
("R&R"). ECF No. 10.
R&R filed on January 23, 2018, Magistrate Judge Leonard
concluded that the decision by the Administrative Law Judge
("ALP) to deny Mr. Tyree's claim was supported by
substantial evidence, and recommended denying Mr. Tyree's
Motion for Summary Judgment (ECF No. 12), granting the
Commissioner's Motion for Summary Judgment (ECF No. 14),
affirming the decision of the Commissioner, and dismissing
the case with prejudice. ECF No. 19 at 17.
of the Report, each party was advised of the right to file
written objections to the findings and recommendations made
by the Magistrate Judge. Id. The Court has received
Plaintiffs timely objections to the Magistrate Judge's
R&R (ECF No. 20), and has considered the objections
to Federal Rule of Civil Procedure 72(b)(3), the Court
reviews de novo any part of a magistrate judge's
recommendation to which a party has properly objected.
See also Wimmer v. Cook, 774 F.2d 68, 73 (4th Cir.
1985) ("[A]ny individual findings of fact or
recommendations for disposition by [the magistrate judge], if
objected to, are subject to final de novo
determination ... by a district judge ....").
reviewing a decision made in accordance with the Social
Security Act must determine whether the factual findings are
supported by substantial evidence and were reached through
application of the correct legal standard. Craig v.
Chater, 16 F.3d 585, 589 (4th Cir. 1996). Accordingly,
if the Commissioner's denial of benefits is supported by
substantial evidence and was reached by applying the correct
legal standard, the Court must affirm the Commissioner's
final decision. Hays v. Sullivan, 907 F.2d 1453,
1456 (4th Cir. 1990).
evidence" is "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion; [i]t consists of more than a mere scintilla of
evidence but may be somewhat less than a preponderance."
Craig, 76 F.3d at 589 (citations omitted). In
reviewing for substantial evidence, this Court does not
reweigh conflicting evidence, make credibility
determinations, or substitute its judgment for that of the
Commissioner. Id. The Commissioner's findings as
to any fact, if supported by substantial evidence, are
conclusive and must be affirmed. Richardson v.
Perales, 402 U.S. 389, 390 (1971).
recounted in the R&R, Mr. Tyree initially filed an
application for SSI on December 7, 2012, alleging disability
due to diabetes, heart problems, and pain in his shoulder and
feet. ECF No. 19 at 2. Mr. Tyree's application was denied
on September 9, 2013; again upon reconsideration on February
5, 2014; and by the ALJ on October 15, 2015. Id. at
denying Mr. Tyree's application, the ALJ made the
following determinations, as required by 20 C.F.R.
§§ 404.1520 and 416.920: (1) that Mr. Tyree had not
engaged in substantial gainful activity between the alleged
onset date of September 1, 2011 and December 31, 2014, the
date he was last insured; (2) that some of his alleged
impairments were severe and others were not; (3) that the
evidence failed to demonstrate that Mr. Tyree had an
impairment or combination of impairments that equaled one of
the listed impairments set forth in 20 C.F.R. Part 404,
Subpart P, Appendix 1, and that Mr. Tyree had the residual
functional capacity to perform sedentary work; (4) that Mr.
Tyree was unable to perform past relevant work; and (5) that
sedentary work suitable for Mr. Tyree existed in significant
numbers in the national economy. See Id. at 8-10.
The Appeals Council then denied Mr. Tyree's request for
review after concluding that the ALJ's decision was
supported by substantial evidence and that Mr. Tyree's
claims did not warrant review. Id. Mr. Tyree filed
the instant Complaint for judicial review of the
Commissioner's decision, which was then referred to
Magistrate Judge Leonard. See ECF Nos.3, 10.
reviewed above, the Magistrate Judge's R&R
recommended that Mr. Tyree's Motion for Summary Judgment
be denied, that the Acting Commissioner's Motion for
Summary Judgment be granted, and that the final decision of
the Commissioner be affirmed. Mr. Tyree filed his objections
to the R&R on February 5, 2018. ECF No. 20. The
Commissioner filed a response on February 20, 2018. ECF No.
Tyree presents one objection to the R&R, asking the Court
to reconsider the R&R in light of new evidence. He
advises the Court that he has been newly diagnosed with
Charcot foot, a deformity in the foot or ankle resulting from
nerve damage that is often caused by diabetes; a damaged disc
in his lower back; and a post-bypass surgery heart condition
that requires further testing. Mr. Tyree provides evidence of
these new diagnoses in the form of Virginia Commonwealth
University Health medical reports from January 15, 24, and
31, 2018. See ECF No. 20-1 at 2-13. Given these new
diagnoses, Mr. Tyree contends that "finding a job would
be very difficult with my declining health condition and
level of energy." ECF No. 20 at 1. Mr. Tyree also
submits documentation of a medical discount, which covers all
of the costs associated with the medical services provided by
Virginia Commonwealth University Health, as further evidence
of his worsening medical conditions and his ...