IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

VENICIA A. TUCKER, o.b.o. D.T, )

Plaintiff, )

)

v. ) CIVIL ACTION NO. 14-00177-N

)

CAROLYN W. COLVIN, Acting )

Commissioner of Social Security, )

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Sharon Venicia A. Tucker, on behalf of her minor child D.T., has 

brought this action under 42 U.S.C. § 1383(c)(3) seeking judicial review of a final 

decision of the Defendant Commissioner of Social Security (“the Commissioner”)

denying D.T.’s application for supplemental security income (“SSI”) under Title XVI 

of the Social Security Act, 42 U.S.C. § 1381, et seq. By the consent of the parties

(Doc. 19), the Court has designated the undersigned Magistrate Judge to conduct all 

proceedings and order the entry of judgment in this civil action, in accordance with 

28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. (Doc. 20).

Upon consideration of the parties’ briefs (Docs. 15, 16) and the administrative 

record (Doc. 12) (hereinafter cited as “(R. [page number(s)])”),1 the Court finds that 

the Commissioner’s decision is due to be REVERSED and REMANDED.

I. Procedural Background

Tucker filed D.T.’s SSI application at issue on November 7, 2011, alleging a 

 1 With the Court’s consent, the parties jointly waived the opportunity for oral argument. 

(Docs. 18, 21).

Case 1:14-cv-00177-N Document 22 Filed 08/05/15 Page 1 of 18
2

disability onset date of September 18, 2011.2 After her application was initially 

denied, Tucker requested a hearing on her application, which was held in Mobile, 

Alabama, before an Administrative Law Judge (“ALJ”) on June 5, 2013. (R. 13).

On July 23, 2013, the ALJ issued an unfavorable decision on Tucker’s 

application, finding D.T. “not disabled” under the Social Security Act. (See R. 10-

24). Tucker requested review of the ALJ’s decision by the Appeals Council for the 

SSA’s Office of Disability Adjudication and Review (R. 9), which denied Tucker’s 

request on February 18, 2014. (R. 5 – 7).

On April 18, 2014, Tucker filed this action under § 1383(c)(3) for judicial 

review of the Commissioner’s final decision. (Doc. 1). See Ingram v. Comm'r of 

Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007) (“The settled law of this 

Circuit is that a court may review, under sentence four of section 405(g), a denial of 

review by the Appeals Council.”); 42 U.S.C. § 1383(c)(3) (“The final determination of 

the Commissioner of Social Security after a hearing [for SSI benefits] shall be 

subject to judicial review as provided in section 405(g) of this title to the same 

extent as the Commissioner's final determinations under section 405 of this title.”); 

42 U.S.C. § 405(g) (“Any individual, after any final decision of the Commissioner of 

Social Security made after a hearing to which he was a party, irrespective of the 

amount in controversy, may obtain a review of such decision by a civil action 

 2 “SSI is a general public assistance measure providing an additional resource to the aged, 

blind, and disabled to assure that their income does not fall below the poverty line. 

Eligibility for SSI is based upon proof of indigence and disability.” Sanders v. Astrue, Civil 

Action No. 11-0491-N, 2012 WL 4497733, at *3 (S.D. Ala. Sept. 28, 2012) (citing 42 U.S.C. 

1382(a), 1382c(a)(3)(A)-(C)). “For SSI claims, a claimant becomes eligible in the first month 

where she is both disabled and has an SSI application on file.” Moore v. Barnhart, 405 F.3d 

1208, 1211 (11th Cir. 2005) (per curiam) (citing 20 C.F.R. § 416.202–03 (2005)).

Case 1:14-cv-00177-N Document 22 Filed 08/05/15 Page 2 of 18
3

commenced within sixty days after the mailing to him of notice of such decision or 

within such further time as the Commissioner of Social Security may allow.”).3

II. Standard of Review

“In Social Security appeals, [the Court] must determine whether the 

Commissioner’s decision is ‘ “supported by substantial evidence and based on 

proper legal standards. Substantial evidence is more than a scintilla and is such 

relevant evidence as a reasonable person would accept as adequate to support a 

conclusion.” ’ ” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 

2011) (quoting Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 

2004) (per curiam) (internal citation omitted) (quoting Lewis v. Callahan, 125 F.3d

1436, 1439 (11th Cir. 1997))). However, the Court “ ‘may not decide the facts anew, 

reweigh the evidence, or substitute our judgment for that of the [Commissioner].’ ” 

Winschel, 631 F.3d at 1178 (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 

(11th Cir. 2004) (alteration in original) (quoting Bloodsworth v. Heckler, 703 F.2d 

1233, 1239 (11th Cir. 1983))). “ ‘Even if the evidence preponderates against the 

[Commissioner]'s factual findings, we must affirm if the decision reached is 

supported by substantial evidence.’ ” Ingram, 496 F.3d at 1260 (quoting Martin v. 

Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).

 “Yet, within this narrowly circumscribed role, [courts] do not act as 

automatons. [The court] must scrutinize the record as a whole to determine if the 

 3 The record reflects that Tucker and her minor child reside in this judicial district. Thus, 

venue is proper in this Court. See 42 U.S.C. § 405(g) (“Such action shall be brought in the 

district court of the United States for the judicial district in which the plaintiff resides, or

has his principal place of business...”).

Case 1:14-cv-00177-N Document 22 Filed 08/05/15 Page 3 of 18
4

decision reached is reasonable and supported by substantial evidence[.]” 

Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted). “In determining 

whether substantial evidence exists, [a court] must...tak[e] into account evidence 

favorable as well as unfavorable to the [Commissioner’s] decision.” Chester v. 

Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Moreover, “[t]here is no 

presumption...that the Commissioner followed the appropriate legal standards in 

deciding a claim for benefits or that the legal conclusions reached were valid. 

Instead, [the court] conduct[s] ‘an exacting examination’ of these factors.” Miles v. 

Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (per curiam) (citing Martin v. Sullivan, 

894 F.2d 1520, 1529 (11th Cir. 1990)) (internal citation omitted). In sum, courts 

“review the Commissioner’s factual findings with deference and the Commissioner’s 

legal conclusions with close scrutiny.” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th 

Cir. 2001). See also Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per 

curiam) (“In Social Security appeals, we review de novo the legal principles upon 

which the Commissioner's decision is based. Chester v. Bowen, 792 F.2d 129, 131 

(11th Cir. 1986). However, we review the resulting decision only to determine 

whether it is supported by substantial evidence. Crawford v. Comm'r of Soc. Sec.,

363 F.3d 1155, 1158–59 (11th Cir. 2004).”). “ ‘The [Commissioner]'s failure to apply 

the correct law or to provide the reviewing court with sufficient reasoning for 

determining that the proper legal analysis has been conducted mandates reversal.’ ” 

Ingram, 496 F.3d at 1260 (quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 

(11th Cir. 1991)). 

Case 1:14-cv-00177-N Document 22 Filed 08/05/15 Page 4 of 18
5

“Eligibility for...SSI requires that the claimant be disabled. 42 U.S.C. 

§...1382(a)(1)-(2).” Thornton v. Comm'r, Soc. Sec. Admin., 597 F. App'x 604, 609 

(11th Cir. Feb. 11, 2015) (per curiam) (unpublished).4 “An individual under the age 

of 18 shall be considered disabled...if that individual has a medically determinable 

physical or mental impairment, which results in marked and severe functional 

limitations, and 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.A. 

§ 1382c(C)(i). “Notwithstanding [§ 1382c(C)](i), no individual under the age of 18 

who engages in substantial gainful activity...may be considered to be disabled.” Id.

§ 1382c(C)(ii).

The Social Security Administration uses a sequential, three-step 

analysis to determine whether a child is disabled. The claimant must 

establish (1) whether the child is working; (2) whether the child has a 

severe impairment or combination of impairments; and (3) whether the 

child's impairment or combination of impairments meets, medically 

equals, or functionally equals the severity of an impairment in the 

Listing of Impairments. 20 C.F.R. § 416.924(a); id. Pt. 404, Subpt. P, 

App. 1...

...To determine whether an impairment or combination of 

impairments “functionally equals” a listed impairment, the 

administrative law judge assesses the claimant on six domains, 

including (1) acquiring and using information; (2) attending and 

completing tasks; (3) interacting and relating with others; (4) moving 

about and manipulating objects; (5) caring for himself; and (6) health 

and physical well-being. Id. §§ 416.926a(a), (b)(1), (d). The claimant 

must establish that he suffers from an “extreme” limitation in one of 

the domains, or “marked” limitations in two of the domains. Id. § 

416.926a(a). A “marked” limitation is one that “interferes seriously 

 4 In this Circuit, “[u]npublished opinions are not considered binding precedent, but they 

may be cited as persuasive authority.” 11th Cir. R. 36-2 (effective Dec. 1, 2014). See also

Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1340, 1345 n.7 (11th Cir. 2007) 

(“Unpublished opinions are not controlling authority and are persuasive only insofar as 

their legal analysis warrants.”).

Case 1:14-cv-00177-N Document 22 Filed 08/05/15 Page 5 of 18
6

with [the claimant's] ability to independently initiate, sustain, or 

complete activities.” Id. § 416.926a(e)(2)(i). “ ‘Marked’ limitation also 

means a limitation that is ‘more than moderate’ but ‘less than 

extreme.’ It is the equivalent of the functioning we would expect to find 

on standardized testing with scores that are at least two, but less than 

three, standard deviations below the mean.” Id.

Parks ex rel. D.P. v. Comm'r, Soc. Sec. Admin., 783 F.3d 847, 850-51 (11th Cir. 

2015).5 “The burden lies with the claimant to prove that he meets or equals a 

Listing.” Gray ex rel. Whymss v. Comm'r of Soc. Sec., 454 F. App'x 748, 750 (11th 

Cir. Dec. 8, 2011) (per curiam) (unpublished) (citing Barron v. Sullivan, 924 F.2d 

227, 229 (11th Cir. 1991)).

“When no new evidence is presented to the Appeals Council and it denies 

review, then the administrative law judge's decision is necessarily reviewed as the 

final decision of the Commissioner, but when a claimant properly presents new 

evidence to the Appeals Council, a reviewing court must consider whether that new 

evidence renders the denial of benefits erroneous.” Ingram, 496 F.3d at 1262.

III. Claims on Judicial Review

Claim 1 – The ALJ “erred by failing to find the claimant’s 

Disruptive Behavior Disorder NOS,[6] and Adjustment 

Disorder with mixed disturbance of emotions and conduct 

were severe impairments and failed to explain how said 

impairments were analyzed when determining functional 

equivalence[.]”

Claim 2 - “New and Material Evidence requires the case be 

remanded to the Commissioner for further evaluation 

pursuant to 42 U.S.C. 405g[.]”

 5 The Court will hereinafter use “Step One,” “Step Two,” and “Step Three” when referencing 

individual steps of this three-step sequential evaluation.

6 “not otherwise specified”

Case 1:14-cv-00177-N Document 22 Filed 08/05/15 Page 6 of 18
7

(Doc. 15 at 1).

IV. Analysis

A. Claim 1

At Step One, the ALJ determined that D.T., a preschooler, had not engaged 

in work since the date of his SSI application. (R. 16). At Step Two, the ALJ

summarily determined that D.T.’s only severe impairment was attention deficit 

disorder (ADD), finding this impairment was “established by the medical evidence” 

and “is ‘sever’ ... because it causes significant limitation to the claimant’s ability to 

perform basic work activities.” (R. 16). At Step Three, the ALJ first summarily 

determined that D.T. did not suffer from an impairment or combination of 

impairments that met or medically equaled a relevant Listing of Impairments. (R. 

16). The ALJ then proceeded with a “functional equivalence” analysis at Step 

Three, finding that D.T. had “marked limitation” only in the domain of “interacting 

and relating with others,” “less than marked limitation” in the domain of “attending 

and completing tasks,” and “no limitation” in the remaining four domains. (R. 16 –

24). Thus, the ALJ found that D.T. was “not disabled.” (Doc. 24). 

Tucker claims that the ALJ failed to properly consider D.T.’s diagnoses of 

disruptive behavior disorder, not otherwise specified (“DBD”), and adjustment 

disorder with mixed disturbance of emotions and conduct (“AD”) both at Step Two 

and in the domain of “caring for oneself” in the “functional equivalence” portion of 

Step Three. (See Doc. 15 at 6 (“It is submitted that the ALJ erred by failing to find 

the child’s Disruptive Behavior Disorder NOS, and Adjustment Disorder with mixed 

Case 1:14-cv-00177-N Document 22 Filed 08/05/15 Page 7 of 18
8

disturbance of emotions and conduct severe impairments and that the ALJ did not 

explain her rationale for finding no limitation in the domain of Caring for Self.”)). 

She also argues that the ALJ ignored other record evidence relevant to the self-care 

domain. (See id. (“The record indicates the child was exhibiting self-injurious 

behavior.” (citing R. 192-193)). 

1. Step Two

As to Tucker’s claim of error at Step Two, even if the ALJ erred in not finding

D.T.’s DBD and AD to be severe impairments, this error is harmless because the 

ALJ determined that D.T. had at least one severe impairment and noted, at Step 

Three, that she had “considered the claimant’s impairments individually and in 

combination” (R. 16). The Eleventh Circuit Court of Appeals recently held as much

regarding an ALJ’s determination of an adult claimant’s severe impairments, 

stating:

If the ALJ determines at step two that there is no severe impairment, 

then the claimant is not disabled. [20 C.F.R.] § 416.920(c). Thus, the 

finding of any severe impairment, whether or not it results from a 

single severe impairment or a combination of impairments that 

together qualify as “severe,” is enough to satisfy step two. Jamison v. 

Bowen, 814 F.2d 585, 588 (11th Cir. 1987). Where a claimant has 

alleged several impairments, the Commissioner must consider the 

impairments in combination and determine whether the combined 

impairments render the claimant disabled. Jones v. Dep't of Health & 

Human Servs., 941 F.2d 1529, 1533 (11th Cir. 1991). An ALJ's 

statement that it has considered a combination of impairments is 

adequate to meet this standard. Id.

Any error at step two was harmless because the ALJ found in Hearn's 

favor as to impairment, Jamison, 814 F.2d at 588, and the ALJ 

properly noted that he considered Hearn's impairments in the later 

steps, Jones, 941 F.2d at 1533. We affirm that the ALJ committed no 

error in considering Hearn's severe impairments or combination of

Case 1:14-cv-00177-N Document 22 Filed 08/05/15 Page 8 of 18
9

impairments.

Hearn v. Comm'r, Soc. Sec. Admin., No. 14-15261, 2015 WL 4591811, at *2-3 (11th 

Cir. July 31, 2015) (per curiam) (unpublished). As with adults, a child claimant 

succeeds at Step Two so long as the child has at least one severe impairment. See

20 C.F.R. § 416.924(c). Thus, applying the reasoning in Hearn, any error the ALJ 

may have committed in not finding other severe impairments at Step Two, or at 

least failing to explain her rationale, is harmless.7 Thus, Tucker is DENIED any 

relief in her claim of error at Step Two.

2. Step Three

The Court now turns to Tucker’s claims of error in the ALJ’s Step Three

“functional equivalence” analysis in the domain of “caring for oneself.”8 In finding 

that D.T. had “no limitation” in the domain of self-care, the ALJ specifically found: 

“There is no evidence in the record indicating that the claimant has any limitations 

in this domain. Moreover, the claimant’s mother has not alleged that the claimant 

has any limitation in this area.” (R. 22). Tucker argues that “[i]t is unknown 

whether the ALJ evaluated the child’s Disruptive Behavior Disorder NOS, and 

Adjustment Disorder and how it affected his ability to cope with stress.” (Doc. 15 at 

 7 Tucker acknowledges in her brief that the “finding of at least one severe impairment may 

be enough to satisfy the requirement of step two of the five-step process if the ALJ's 

decision clearly reflects consideration of all of a claimant's impairments.” (Doc. 15 at 6 

(citing Jamison, 814 F.2d at 588)). The Commissioner’s brief notes this concession and 

argues harmless error as to Step Two. (See Doc. 16 at 7). Both briefs were filed in 2014, 

well before the Hearn decision was released.

8 Tucker has argued no error in the ALJ’s determination at Step Three that D.T. did not 

have an impairment or combination of impairments that “meets or medically equals” the 

relevant Listings, nor has she argued error in the ALJ’s analysis of the other five domains 

of the functional equivalence test.

Case 1:14-cv-00177-N Document 22 Filed 08/05/15 Page 9 of 18
10

6). The Commissioner’s brief does not address Tucker’s claim of error at Step 

Three.

In the domain of “caring for oneself,” the Commissioner considers “how well 

you maintain a healthy emotional and physical state, including how well you get 

your physical and emotional wants and needs met in appropriate ways; how you 

cope with stress and changes in your environment; and whether you take care of 

your own health, possessions, and living area.” 20 C.F.R. § 416.926a(k).

This domain focuses on the child's “personal needs, health and safety.” 

20 C.F.R. § 416.926a(k)(1)(i). It requires that the child use ageappropriate strategies “to identify and regulate [her] feelings, 

thoughts, urges, and intentions,” id. § 416.926a(k)(1)(iii), and to 

respond to “circumstances in safe and appropriate ways, making 

decisions that do not endanger [herself],” id. § 416.926a(k)(1)(iv).

Knight ex rel. P.K. v. Colvin, 756 F.3d 1171, 1177-78 (10th Cir. 2014).

No specific mention of AD is made anywhere in the ALJ’s opinion, and 

Tucker cites only one page in the record where the disorder is mentioned (see Doc. 

15 at 3 (citing “Tr. 203”)) – page 6 of a 7-page psychiatric evaluation from Altapointe 

dated February 10, 2012, which lists Axis-I diagnoses of “adjustment disorder with 

mixed disturbance of emotions and conduct,” “attentionn [sic] deficit hyperactivity 

disorder, combined type,” “disruptive behavior disorder not otherwise specified,” 

and “rule out posttraumatic stress disorder.” (R. 203 (“Exhibit No. 5F,” page 28 of 

29)). 

In her general discussion of the record evidence proceeding her “functional 

equivalence” analysis, the ALJ noted:

The record confirms that the claimant has been diagnosed with 

Case 1:14-cv-00177-N Document 22 Filed 08/05/15 Page 10 of 18
11

disruptive behavior disorder, not otherwise specified (Exh. 1F/1). The 

family therapy treatment notes at Altapointe Health Systems 

(Altapointe) consistently indicate that his mother reported the 

claimant had been expelled from several day cares, is aggressive –

hitting, kicking, biting – and according to his mother this is true at 

home as well. On November 17, 2011, She stated “he is full of anger” 

(Exh. 1F/3). The therapy notes generally indicate that the claimant’s 

appearance and grooming was appropriate, his behavior was normal 

and cooperative, although noted as hyperactive on some occasions, 

with normal mood and affect appropriate to the situation (Exh. 1F; 5F; 

7F). The clinicians, noted that he had excellent vocabulary and syntax, 

but was reported to have difficulty falling asleep, settling down on one 

occasion, and ‘fair’ on another. The clinicians further observed the 

claimant had no impairment in his speech, no injurious behavior, no 

suicidal thoughts, no homicidal thoughts and his perceptions were 

within normal limits (Id.). The notes additionally indicate that his 

memory is unimpaired, his thoughts are logical and coherent, within 

normal limits, his concentration was not impaired, but he has poor 

insight and judgment, described as ‘he is 4’ on the November 17 visit 

(Exh. 1F/4)...

(R. 17 – 18). 

When conducting the functional equivalence analysis, an ALJ must “consider 

[the child’s] functional limitations resulting from all of [his or her] impairments, 

including their interactive and cumulative effects[,]” and “all the relevant 

information in [the child’s] case record that helps []determine [the child’s] 

functioning, including []signs, symptoms, and laboratory findings, [and]the 

descriptions ... about [the child’s] functioning from []parents, teachers, and other 

people who know [the child]...” 20 C.F.R. § 416.926a(e)(1)(i). Nevertheless, there “ ‘ 

is no rigid requirement that the [administrative law judge] specifically refer to 

every piece of evidence in his decision, so long as’ [a] Court can ‘conclude [that] the 

[administrative law judge] considered [the claimant's] medical condition as a whole.’ 

” Parks ex rel. D.P., 783 F.3d at 852 (quoting Mitchell v. Comm'r, Soc. Sec. Admin., 

Case 1:14-cv-00177-N Document 22 Filed 08/05/15 Page 11 of 18
12

771 F.3d 780, 782 (11th Cir. 2014)). See also Gray ex rel. Whymss v. Comm'r of Soc. 

Sec., 454 F. App'x 748, 750 (11th Cir. 2011) (per curiam) (unpublished) (“Although 

the ALJ must consider the Listings, there is no requirement that the ALJ 

mechanically recite the evidence leading to his ultimate determination. A finding 

that a claimant's impairments are not contained in the Listings may be implied 

from the ALJ's decision.” (citing Hutchison v. Bowen, 787 F.2d 1461, 1463 (11th Cir. 

1986)) (internal citation omitted)). Tucker has made no effort to explain what 

either AD or DBD is, or their significance to the domain of “caring for oneself”

(except to conclusorily suggest that they may have “affected [D.T.’s] ability to cope 

with stress” (Doc. 15 at 6)). It is not apparent what the significance either disorder 

has to the domain, and, absent any substantive argument from Tucker, the Court 

cannot substitute its own judgment for that of the Commissioner in considering the 

significance vel non of these diagnoses to this domain. Winschel, 631 F.3d at 1178. 

Thus, the Court finds no reversible error at Step Three with regard to the ALJ’s 

consideration of AD and DBD.

However, Tucker also argues that the ALJ’s finding no limitation in the 

domain of self-care is in error because “[t]he record indicates the child was 

exhibiting self-injurious behavior.” (Doc. 15 at 6 (citing R. 192-193)). In support, 

Tucker has cited a Direct Service Record (“DSR”) regarding D.T. from Altapointe 

dated January 25, 2012, which indicates “Yes” to the presence of “self injurious 

behavior” and describes that behavior as “ ‘Plays with fire’ putting objects in the 

space heaters.” (R. 192). The DSR also notes that D.T. is “FASCINATED WITH 

Case 1:14-cv-00177-N Document 22 Filed 08/05/15 Page 12 of 18
13

FIRE-puts things in the space heaters and in the stove if it is on.” (R. 192). 

Though conclusorily labeled as “self injurious behavior” in the DSR, the 

substantive descriptions of the behavior are more indicative of “ignor[ing] safety 

rules,” which is noted as an example of limited functioning in self-care in the same 

provision as self-injurious behavior. 20 C.F.R. § 416.926a(k)(3)(iv) (examples of 

“limited functioning in caring for yourself” are “engag[ing] in self-injurious behavior 

(e.g., suicidal thoughts or actions, self-inflicted injury, or refusal to take your 

medication), or []ignor[ing] safety rules”). See also id. § 416.926a(k)(1)(iv) (“Caring 

for yourself means ... following safety rules” and “making decisions that do not 

endanger yourself”); id. § 416.926a(k)(2)(iii) (preschool children without impairment

should “begin to understand how to control behaviors that are not good for you (e.g., 

crossing the street without an adult)”). 

The ALJ’s opinion makes no mention of the record evidence of D.T.’s 

inappropriate behavior around fire. However, the ALJ’s opinion does note other 

record evidence that indicates some form of limitation in the self-care domain. For 

instance, the ALJ noted that in 2011 Altapointe clinicians reported D.T.’s “difficulty 

falling asleep” (R. 18). See 20 C.F.R. § 416.926a(k)(3)(vi) (an example of “limited 

functioning in caring for yourself” is “disturbance in eating or sleeping patterns”). 

The ALJ also noted that, during one Altapointe visit in September 2012, Tucker 

indicated that D.T. would “run[] into traffic at times,” and that an Altapointe doctor 

had recommended an increase in medication to target “dangerous impulsivity” (R. 

18), other examples of D.T.’s ignoring safety rules. See id. § 416.926a(k)(3)(iv).

Case 1:14-cv-00177-N Document 22 Filed 08/05/15 Page 13 of 18
14

It is true that the examples of limiting functioning in self-care provided by § 

416.926a(k)(3) “do not necessarily describe a ‘marked’ or ‘extreme’ limitation.” 20 

C.F.R. § 416.926a(k)(3). Moreover, with regard to D.T.’s noted difficulty falling 

asleep, the ALJ’s opinion notes that this limitation appears to have improved over 

time. (See R. 18). However, given the evidence cited by Tucker, and the ALJ’s own 

evidentiary findings as noted above, and given that the Commissioner has failed to 

address Tucker’s claim of error at Step Three, the Court finds the Commissioner’s 

determination that “[t]here is no evidence in the record indicating that the claimant 

has any limitations” (R. 23 (emphasis added)) in the domain of self-care is not 

supported by substantial evidence.9 Thus, the Court SUSTAINS Tucker’s claim of 

error that the ALJ failed to consider all relevant evidence when analyzing the 

domain of self-care and finds that REMAND under sentence four of § 405(g) is 

warranted so that the Commissioner can properly consider all the relevant record 

evidence with regard to this domain. See Jackson v. Chater, 99 F.3d 1086, 1095 

(11th Cir. 1996) (“[A] sentence-four remand is based upon a determination that the 

Commissioner erred in some respect in reaching the decision to deny benefits.”).

B. Claim 2

Tucker has also argued that this Court should remand this case to the 

Commissioner under sentence six of § 405(g)(6) for the Commissioner to consider 

new evidence. 

Sentence six of section 405(g) provides the sole means for a district 

 9 Given that a finding of at least “marked limitation” in this domain would have supported 

a finding of disabled, the Commissioner’s error in failing to consider relevant evidence as to 

this domain cannot be deemed harmless.

Case 1:14-cv-00177-N Document 22 Filed 08/05/15 Page 14 of 18
15

court to remand to the Commissioner to consider new evidence 

presented for the first time in the district court:

The court may ... at any time order additional evidence to be 

taken before the Commissioner of Social Security, but only upon 

a showing that there is new evidence which is material and that 

there is good cause for the failure to incorporate such evidence 

into the record in a prior proceeding ....

42 U.S.C. § 405(g). “The sixth sentence of § 405(g) plainly describes an 

entirely different kind of remand [from the fourth sentence], 

appropriate when the district court learns of evidence not in existence 

or available to the claimant at the time of the administrative

proceeding that might have changed the outcome of that proceeding.” 

Sullivan v. Finkelstein, 496 U.S. 617, 626, 110 S. Ct. 2658, 2664, 110 

L.Ed.2d 563 (1990); see Melkonyan v. Sullivan, 501 U.S. 89, 98, 111 S.

Ct. 2157, 2163, 115 L. Ed. 2d 78 (1991) (The sixth sentence allows the 

taking of “new evidence ... that was not available to the claimant at the 

time of the administrative proceeding.”). A remand to the 

Commissioner is proper under sentence six when new material 

evidence that was not incorporated into the administrative record for 

good cause comes to the attention of the district court. See Milano v. 

Bowen, 809 F.2d 763, 766–67 (11th Cir. 1987) (ordering a sentence six 

remand based on evidence first properly submitted to the district 

court); Cherry v. Heckler, 760 F.2d 1186, 1193–94 (11th Cir. 1985) 

(same); Epps v. Harris, 624 F.2d 1267, 1273 (5th Cir. 1980) (same); 

Johnson v. Harris, 612 F.2d 993, 998–99 (5th Cir. 1980) (same); see 

also Wilson v. Apfel, 179 F.3d 1276, 1278 (11th Cir. 1999) (new 

evidence will not be considered for the first time on appeal in this 

Court for the purposes of a sentence six remand).

Ingram, 496 F.3d at 1267.

The evidence Tucker presents is not “new.” Tucker admits in her brief that 

the “new evidence” she presents consists of medical records “from August 12, 2013 

through August 15, 2013.” (Doc. 15 at 7). Thus, these records were plainly “in 

existence or available to” Tucker prior to the Appeals Council’s denial of review on 

February 18, 2014. Tucker asks to be excused from not presenting this evidence 

because her counsel at the administrative level withdrew from representation after 

Case 1:14-cv-00177-N Document 22 Filed 08/05/15 Page 15 of 18
16

the ALJ issued her unfavorable decision and Tucker was left to proceed pro se

through the Appeals Council’s denial of review. Only after the denial of review did 

Tucker obtain her present counsel, who “discovered there was evidence of an 

inpatient hospitalization that was not submitted to the Appeals Council.” (Doc. 15 

at 8). However, Tucker has not explained why she did not obtain new counsel until 

after the Appeals Council denied review (approximately seven months after the ALJ 

issued her unfavorable decision), nor has she cited any authority to support what 

essentially amounts to her request for a “do-over” after proceeding pro se with the 

Appeals Council did not produce a favorable result.

Moreover, it does not appear the evidence would have changed the outcome of 

the proceeding even if submitted to the Appeals Council. The SSA regulations 

provide that “[i]f new and material evidence is submitted, the Appeals Council must 

consider the additional evidence that relates to the period on or before the date 

of the ALJ's hearing decision.” Hearn, 2015 WL 4591811, at *1 (citing 20 C.F.R. 

§ 416.1470(b)) (emphasis added). The medical records that Tucker presents as “new 

and material evidence” are from mid-August 2013 and therefore do not “relate to 

the period on or before the date of the ALJ’s hearing decision” – July 23, 2013.

Because Tucker has not shown that a “sentence six” remand is appropriate, 

the Court will not order the Commissioner to consider this evidence on remand 

(though she is free to do so in her discretion). Thus, Tucker is DENIED any relief 

as to Claim 2.

Case 1:14-cv-00177-N Document 22 Filed 08/05/15 Page 16 of 18
17

V. Conclusion

In accordance with the foregoing analysis, it is ORDERED that the

Commissioner’s February 18, 2014 final decision denying D.T.’s application for SSI

benefits is REVERSED and REMANDED under sentence four of 42 U.S.C. § 

405(g), see Melkonyan v. Sullivan, 501 U.S. 89 (1991), for further proceedings not 

inconsistent with this decision. The remand pursuant to sentence four of § 405(g) 

makes Tucker a prevailing party for purposes of the Equal Access to Justice Act, 28 

U.S.C. § 2412, see Shalala v. Schaefer, 509 U.S. 292 (1993), and terminates this 

Court’s jurisdiction over this matter.

Pursuant to Federal Rule of Civil Procedure 54(d)(2)(B), the Court hereby 

grants Wilson’s attorney an extension of time in which to file a petition for 

authorization of attorney's fees under 42 U.S.C. § 406(b) until thirty days after 

receipt of a notice of award of benefits from the Social Security Administration. See

Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1277 (11th Cir. 2006) (per curiam) 

(“Fed. R. Civ. P. 54(d)(2) applies to a § 406(b) attorney's fee claim.”); Blitch v. 

Astrue, 261 F. App'x 241, 242 n.1 (11th Cir. 2008) (per curiam) (unpublished) (“In 

Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273 (11th Cir. 2006), we suggested the best 

practice for avoiding confusion about the integration of Fed. R. Civ. P. 54(d)(2)(B) 

into the procedural framework of a fee award under 42 U.S.C. § 406 is for a plaintiff 

to request and the district court to include in the remand judgment a statement 

that attorneys fees may be applied for within a specified time after the 

determination of the plaintiff's past due benefits by the Commission. 454 F.3d at 

Case 1:14-cv-00177-N Document 22 Filed 08/05/15 Page 17 of 18
18

1278 n.2.”).

Final judgment shall issue separately in accordance with this Order and 

Federal Rule of Civil Procedure 58.

DONE and ORDERED this the 5th day of August 2015.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

Case 1:14-cv-00177-N Document 22 Filed 08/05/15 Page 18 of 18