Gier v. Commissioner of Social Security

Filing 30

ORDER signed by Magistrate Judge Kendall J. Newman on 1/16/14 GRANTING in part Plaintiff's 15 Motion for Summary Judgment and DENYING the Commissioner's 25 Cross-Motion for Summary Judgment. The action is REMANDED for further proceedings consistent with this order. Copy of remand order sent to other court. CASE CLOSED. (Manzer, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DONALD GIER, SR.,

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Plaintiff,

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No. 2:13-cv-0012-KJN

v.

ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security

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(“Commissioner”) denying plaintiff’s application for Disability Insurance Benefits (“DIB”) under

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Title II of the Social Security Act (“Act”).1 In his motion for summary judgment, plaintiff

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principally contends that the Commissioner erred by finding that plaintiff was not disabled from

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May 1, 2007, plaintiff’s alleged disability onset date, through the date of the ALJ’s decision.

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(ECF No. 15.) The Commissioner filed an opposition to plaintiff’s motion and a cross-motion for

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summary judgment. (ECF No. 25.) Thereafter, plaintiff filed a reply brief. (ECF No. 29.)

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This action was referred to the undersigned pursuant to E.D. Cal. L.R. 302(c)(15), and both
parties voluntarily consented to proceed before a United States Magistrate Judge for all purposes.
(ECF Nos. 8, 9.)
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For the reasons that follow, the court grants plaintiff’s motion for summary judgment in

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part, denies the Commissioner’s cross-motion for summary judgment, and remands the action for

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further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).

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I.

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BACKGROUND
Plaintiff was born on March 24, 1960, has an eleventh grade education, and previously

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worked primarily as a truck driver and a glue maker.2 (Administrative Transcript (“AT”) 31-33,

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62, 67.) Around March 15, 2010, plaintiff applied for DIB, alleging that he was unable to work

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as of May 1, 2007, due to back injury, arthritis, depression, carpal tunnel, degenerative disc

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disease, hepatitis C, heart attack, high blood pressure, and “back haert kidneys liver mentel

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health” [sic]. (AT 12, 62, 127.) On September 14, 2010, the Commissioner determined that

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plaintiff was not disabled. (AT 12, 62, 71.) Upon plaintiff’s request for reconsideration, the

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determination was affirmed on December 13, 2010. (AT 12, 67, 77.) Thereafter, plaintiff

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requested a hearing before an administrative law judge (“ALJ”), which took place on June 8,

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2011, and at which plaintiff (represented by counsel) and a vocational expert (“VE”) testified.

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(AT 27-61.)

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In a decision dated August 17, 2011, the ALJ determined that plaintiff had not been under

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a disability, as defined in the Act, from May 1, 2007, plaintiff’s alleged disability onset date,

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through the date of the ALJ’s decision. (AT 12-21.) The ALJ’s decision became the final

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decision of the Commissioner when the Appeals Council denied plaintiff’s request for review on

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December 6, 2012. (AT 1-6.) Thereafter, plaintiff filed this action in federal district court on

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January 2, 2013, to obtain judicial review of the Commissioner’s final decision. (ECF No. 1.)

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II.

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ISSUES PRESENTED
Plaintiff has raised the following issues: (1) whether the ALJ improperly discounted the

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opinion of examining physician Dr. Narinder Dhaliwal; (2) whether the ALJ erred in her

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assessment of plaintiff’s public interaction limitations; (3) whether the ALJ erred in her

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Because the parties are familiar with the factual background of this case, including plaintiff’s
medical and mental health history, the court does not exhaustively relate those facts in this order.
The facts related to plaintiff’s impairments and treatment will be addressed insofar as they are
relevant to the issues presented by the parties’ respective motions.
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assessment of plaintiff’s reaching limitations; and (4) whether the ALJ erred in her assessment of

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plaintiff’s handling and fingering limitations.3

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Furthermore, after plaintiff notified the court of a provisional grant of Supplement

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Security Income (“SSI”) benefits based on a subsequent claim, the court requested the parties to

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address the impact, if any, of that provisional grant on the present action. (ECF No. 19.) The

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parties have sufficiently briefed the issue in the Commissioner’s cross-motion for summary

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judgment and plaintiff’s reply brief, respectively. (ECF Nos. 25, 29.)

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III.

LEGAL STANDARD
The court reviews the Commissioner’s decision to determine whether (1) it is based on

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proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record

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as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial

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evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340

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F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable

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mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th

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Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is

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responsible for determining credibility, resolving conflicts in medical testimony, and resolving

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ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citation omitted). “The

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court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one rational

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interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

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IV.

DISCUSSION
Summary of the ALJ’s Findings

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A.

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The ALJ evaluated plaintiff’s entitlement to DIB pursuant to the Commissioner’s standard

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five-step analytical framework.4 As an initial matter, the ALJ found that plaintiff remained

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Plaintiff’s brief raised these issues in a somewhat different order.

Disability Insurance Benefits are paid to disabled persons who have contributed to the Social
Security program. 42 U.S.C. §§ 401 et seq. Supplemental Security Income is paid to disabled
persons with low income. 42 U.S.C. §§ 1382 et seq. Both provisions define disability, in part, as
an “inability to engage in any substantial gainful activity” due to “a medically determinable
physical or mental impairment. . . .” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A parallel
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insured for purposes of DIB through September 30, 2012. (AT 14.) At the first step, the ALJ

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concluded that plaintiff had not engaged in substantial gainful activity since May 1, 2007,

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plaintiff’s alleged disability onset date. (Id.) At step two, the ALJ determined that plaintiff had

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the following severe impairments: lower back pain, hypertension, history of methamphetamine

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abuse, and osteoarthritis of the left elbow. (Id.) However, at step three, the ALJ determined that

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plaintiff did not have an impairment or combination of impairments that met or medically equaled

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an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.)

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Before proceeding to step four, the ALJ assessed plaintiff’s residual functional capacity
(“RFC”) as follows:
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) except the
claimant must alternate between sitting and standing to relieve pain
or discomfort every hour for one to two minutes; can only
occasionally climb ladders, ropes, and scaffolds, stoop, crouch, and
crawl; can only frequently reach overhead bilaterally, handle, and
five-step sequential evaluation governs eligibility for benefits under both programs. See 20
C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 14042 (1987). The following summarizes the sequential evaluation:

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Step one: Is the claimant engaging in substantial gainful activity? If so, the
claimant is found not disabled. If not, proceed to step two.
Step two: Does the claimant have a “severe” impairment? If so, proceed to step
three. If not, then a finding of not disabled is appropriate.
Step three: Does the claimant’s impairment or combination of impairments meet or
equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the
claimant is automatically determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past relevant work? If so, the
claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional capacity to perform any
other work? If so, the claimant is not disabled. If not, the claimant is disabled.

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Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

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The claimant bears the burden of proof in the first four steps of the sequential evaluation
process. Bowen, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential
evaluation process proceeds to step five. Id.
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finger; needs to avoid concentrated exposure to extreme cold,
extreme heat, vibrations, and hazards; and can only occasionally
interact with the public.

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(AT 16.)
At step four, the ALJ found that plaintiff was unable to perform any past relevant work.

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(AT 19.) Finally, at step five, the ALJ determined, in reliance on the VE’s testimony, that

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considering plaintiff’s age, education, work experience, and RFC, there were jobs that existed in

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significant numbers in the national economy that plaintiff could perform. (AT 20.) Specifically,

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the VE testified that plaintiff would be able to perform the following representative unskilled

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occupations: (1) routing clerk (with use of stool), a light work occupation with a specific

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vocational preparation (“SVP”) of 2, and with 48,000 jobs nationally and 6,400 jobs in California;

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(2) assembler, a light work occupation with a SVP of 2, and 29,000 jobs nationally and 3,400 jobs

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in California; and (3) escort vehicle driver, a light work occupation with a SVP of 2, and 22,000

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jobs nationally and 2,500 jobs in California. (AT 20-21, 49-51.)

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Accordingly, the ALJ concluded that plaintiff had not been under a disability, as defined

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in the Act, from May 1, 2007, plaintiff’s alleged disability onset date, through the date of the

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ALJ’s decision. (AT 21.)

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B.

Plaintiff’s Substantive Challenges to the Commissioner’s Determinations

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1.

Whether the ALJ improperly discounted the opinion of examining

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physician Dr. Narinder Dhaliwal

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After the June 8, 2011 administrative hearing, but before issuance of the ALJ’s August 17,

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2011 decision, plaintiff submitted an assessment by Dr. Narinder Dhaliwal, who indicated that he

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had reviewed plaintiff’s records and examined plaintiff on June 6, 2011, at plaintiff’s counsel’s

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request. He found that plaintiff could only lift and carry 10 pounds for one-third of a day, and

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opined that plaintiff meets Listing 1.04A (related to disorders of the spine) and had been disabled

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from about May 1, 2000. (AT 418-19.) Plaintiff argues that the ALJ erred in rejecting Dr.

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Dhaliwal’s opinion.

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The weight given to medical opinions depends in part on whether they are proffered by
treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195,
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1201-02 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Ordinarily, more

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weight is given to the opinion of a treating professional, who has a greater opportunity to know

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and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir.

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1996).

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To evaluate whether an ALJ properly rejected a medical opinion, in addition to

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considering its source, the court considers whether (1) contradictory opinions are in the record;

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and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a

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treating or examining medical professional only for “clear and convincing” reasons. Lester, 81

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F.3d at 830-31. In contrast, a contradicted opinion of a treating or examining professional may be

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rejected for “specific and legitimate” reasons. Lester, 81 F.3d at 830. While a treating

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professional’s opinion generally is accorded superior weight, if it is contradicted by a supported

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examining professional’s opinion (supported by different independent clinical findings), the ALJ

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may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing

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Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The regulations require the ALJ to

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weigh the contradicted treating physician opinion, Edlund, 253 F.3d at 1157,5 except that the ALJ

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in any event need not give it any weight if it is conclusory and supported by minimal clinical

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findings. Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (treating physician’s conclusory,

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minimally supported opinion rejected); see also Magallanes, 881 F.2d at 751. The opinion of a

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non-examining professional, without other evidence, is insufficient to reject the opinion of a

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treating or examining professional. Lester, 81 F.3d at 831.
In this case, the ALJ gave “little weight” to Dr. Dhaliwal’s opinion, noting that Dr.

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Dhaliwal “is not a treating source and the doctor saw the claimant only for evaluation at the

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request of his attorney. In addition, this opinion fails to consider the claimant’s activities of daily

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living, which indicate the claimant is able to do more than what Dr. Dhaliwal’s opinion states.”

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(AT 19.)

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The factors include: (1) length of the treatment relationship; (2) frequency of examination; (3)
nature and extent of the treatment relationship; (4) supportability of diagnosis; (5) consistency;
and (6) specialization. 20 C.F.R. § 404.1527.
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As an initial matter, the court agrees that Dr. Dhaliwal’s status as a non-treating physician

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and his retention by plaintiff’s counsel are not in themselves specific and legitimate reasons for

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discounting Dr. Dhaliwal’s opinion as an examining physician. Furthermore, although the ALJ

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referenced plaintiff’s ability to help his son with homework, take his son to ball games, prepare

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frozen dinners, drive a car, and go grocery shopping (AT 17-19), the ALJ did not perform any

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meaningful analysis as to how specifically these activities, in light of their extent and duration,

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undermine particular aspects of Dr. Dhaliwal’s opinion. While it is certainly possible to interpret

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and extrapolate certain potential inconsistencies, it is the ALJ’s role as the finder of fact to point

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to these in the administrative decision, instead of tasking the court with inferring such potential

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contradictions on appeal. Nevertheless, the court ultimately finds that the ALJ’s error was

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harmless, because Dr. Dhaliwal’s opinion is so minimally supported and conclusory as not to

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warrant any significant weight. See Curry v. Sullivan, 925 F.2d 1127, 1129 (9th Cir. 1990)

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(harmless error analysis applicable in judicial review of social security cases).

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Indeed, Dr. Dhaliwal’s opinion consisted of only about 1.5 pages in total and described

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plaintiff’s medical history as having included a myocardial infarction in 2006, hypertension,

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lower back pain with a history of receiving an epidural injection, hepatitis C, and depression.

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(AT 418-19.) Although Dr. Dhaliwal apparently examined plaintiff, his only clinical findings

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based on the examination were listed as “showed Trunk forward bending 30 degrees, unable

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squat, Left leg raising causes more pain.” (AT 418.) He then performed a cursory, and at times

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hard-to-follow, summary of plaintiff’s prior records, at certain points indicating his disagreement

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with the assessments of plaintiff’s prior treating source(s) and the Commissioner’s consultative

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examiner, Dr. Satish Sharma. (AT 418-19.) However, given Dr. Dhaliwal’s minimal clinical

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findings, it is hard to give his conclusions much weight, especially when compared to the

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thorough report prepared by the Commissioner’s consultative examiner, which by contrast is well

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supported by objective testing and clinical findings. (AT 253-60.) Furthermore, Dr. Dhaliwal

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concluded his assessment with a conclusory assertion that plaintiff meets Listing 1.04A and has

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been disabled since May 1, 2000, without providing any discussion of exactly how plaintiff meets

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Listing 1.04A’s requirements or explaining how plaintiff nonetheless was able to work as a truck
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driver until the early part of 2007. (AT 32, 419.)
Therefore, although the ALJ’s stated reasons for discounting Dr. Dhaliwal’s opinion were

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insufficient, it is readily apparent from the record that Dr. Dhaliwal’s opinion is conclusory and

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minimally supported, and should be rejected as such. Because harmless error analysis applies in

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judicial review of social security cases, the court will not remand a case to an ALJ simply to write

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up a better-reasoned decision when the record evidence clearly shows that remand based on the

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particular issue would be futile.

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2.

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Whether the ALJ erred in her assessment of plaintiff’s public interaction

limitations
Plaintiff next argues that the ALJ erroneously limited plaintiff to occasional interaction
with the public. (AT 16.) That argument lacks merit.

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In the absence of a mental functional capacity assessment by a treating psychologist or

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psychiatrist, the only source to have personally examined plaintiff and issued an opinion as to

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mental capacity was consultative psychiatrist Dr. Timothy Canty, who examined plaintiff on June

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24, 2010. (AT 261-64.) After performing a thorough mental status examination and

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psychological testing, Dr. Canty diagnosed plaintiff with “rule out mood disorder not otherwise

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specified” and issued the following functional assessment:

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He occasionally abuses marijuana but this does not seem to be a
significant problem. He is certainly cognitively able to manage
money. His attention and concentration seems pretty good and I
don’t think he would have difficulty with fairly typical tasks from a
psychiatric standpoint. However, I don’t think he would tolerate
highly stressful or fast-paced work. Given his numerous physical
complaints and chronic insomnia that would prove overwhelming.
I don’t think he would have difficulty with a few coworkers,
supervisors, or incidental contact with the public. However, I don’t
think he could tolerate a full-time public position. His emotional
complaints would not prevent him from attending work.

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(AT 263-64.)
Plaintiff suggests that Dr. Canty’s recommendation of “incidental contact with the public”

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is somehow more restrictive than the ALJ’s occasional public interaction restriction. (AT 264.)

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However, plaintiff ignores the following sentence, in which Dr. Canty also states that he does not

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think plaintiff “could tolerate a full-time public position,” suggesting that something less than
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full-time public contact may be appropriate. (Id.) Plainly, Dr. Canty’s assessment, viewed as a

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whole, supports the ALJ’s restriction of plaintiff to occasional public interaction. To the extent

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that any ambiguity exists, the court defers, as it must, to the ALJ’s reasonable and rational

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interpretation of Dr. Canty’s opinion.

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3.

Whether the ALJ erred in her assessment of plaintiff’s reaching limitations

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Plaintiff further argues that the ALJ improperly assessed plaintiff as being restricted to

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frequent bilateral overhead reaching. (AT 16.) The court disagrees. Even though consultative

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examiner Dr. Satish Sharma, who personally examined plaintiff around June 18, 2010,

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recommended limitations with respect to holding, feeling, and fingering objects (discussed further

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below), he imposed no reaching limitations whatsoever. (AT 253-60.) Additionally, on July 7,

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2010, the non-examining state agency physician, Dr. Wilson, reviewed the record and specifically

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opined that plaintiff had no limitations with respect to reaching, including overhead reaching.

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(AT 269, 271.) The ALJ, for unspecified reasons, restricted plaintiff to frequent bilateral

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overhead reaching, as opposed to assessing no limitation at all. However, if anything, such

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unarticulated reasoning gave plaintiff the benefit of the doubt, and any error was thus harmless.

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Although plaintiff apparently feels that the RFC’s reaching limitation is not restrictive enough, he

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fails to point to any medical opinion in the record that actually assessed more restrictive, concrete

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reaching limitations.

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4.

Whether the ALJ erred in her assessment of plaintiff’s handling and

fingering limitations
As noted above, the ALJ found that plaintiff could frequently engage in handling and

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fingering. (AT 16.) Plaintiff contends that the ALJ failed to explain how she arrived at that

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conclusion, which is inconsistent with the opinion of consultative examiner Dr. Satish Sharma,

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who stated that plaintiff is limited to occasional holding, feeling, and fingering of objects with

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both hands. (AT 257.) That argument has merit.

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As the Commissioner points out, state agency physician Dr. Wilson found that plaintiff

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was unlimited with respect to feeling, and was limited to frequent fingering and handling with his

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bilateral upper extremities. (AT 269.) Thus, it appears that the ALJ’s RFC was derived from Dr.
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Wilson’s assessment, although the ALJ purportedly gave both Dr. Sharma’s and Dr. Wilson’s

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opinions “great weight” and never discussed the inconsistency between these opinions concerning

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manipulative limitations. (AT 18.)

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This lack of analysis is problematic, because the opinion of a non-examining physician

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(such as Dr. Wilson) is ordinarily insufficient in itself to reject the opinion of an examining

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physician (such as Dr. Sharma). To be sure, the opinion of a non-examining physician may serve

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as substantial evidence when it is consistent with other independent evidence in the record. See,

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e.g., Lester, 81 F.3d at 830-31. Indeed, on appeal, the Commissioner attempts to point to some of

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plaintiff’s activities – such as plaintiff’s ability to help his son with homework, take his son to

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ball games, prepare frozen dinners, drive a car, and go grocery shopping – as undermining Dr.

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Sharma’s opinion and supporting Dr. Wilson’s less restrictive opinion with respect to

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manipulative limitations. The Commissioner asserts that the ALJ could reasonably have

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interpreted these activities as indicating that plaintiff was not precluded from engaging in frequent

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handling and fingering. However, the ALJ failed to actually engage in any meaningful analysis

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as to how specifically these activities are inconsistent with Dr. Sharma’s opinion. While it is

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potentially conceivable that some of these activities may involve more than occasional handling

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and fingering, it is far from obvious, particularly because the exact nature, extent, and frequency

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of these activities were not discussed by the ALJ, nor are they readily apparent from the record

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before the court.

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The Commissioner’s other proffered potential reasons for the ALJ’s findings concerning

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manipulative limitations are also unpersuasive. For example, the fact that Dr. Sharma imposed no

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reaching limitations has no bearing on his other assessed manipulative limitations. Additionally,

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just because Dr. Sharma assessed plaintiff with adequate range of motion in the shoulders,

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elbows, wrists, and fingers (AT 256) does not mean that his assessment of manipulative

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limitations is necessarily inaccurate. A person may well have relatively normal range of motion

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generally, but nevertheless be limited by other symptoms attributable to an impairment such as

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carpal tunnel syndrome. In this case, Dr. Sharma diagnosed plaintiff with bilateral carpal tunnel

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syndrome, consistent with his finding of a positive Tinel sign at both the wrists. (AT 257.)
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Furthermore, although the Commissioner refers to an assessment by a physical therapist, Frank

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Capello, indicating that plaintiff could return to work without restrictions, that assessment was

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performed long before plaintiff’s alleged disability onset date on July 17, 2000, in connection

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with a low back injury. (AT 301-02, 339-40.)

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The court cannot find that the ALJ’s failure to properly analyze plaintiff’s handling and

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fingering limitations was harmless error. Here, the VE testified that the representative

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occupations identified by the ALJ would likely be precluded if plaintiff were limited to less than

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frequent handling and fingering, because “there are only a few occupations that don’t require, in

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the unskilled categories, frequent handling, fingering, etc.” (AT 58.)

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Accordingly, the court remands the action pursuant to sentence four of 42 U.S.C. § 405(g)

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for further evaluation and consideration of plaintiff’s handling, fingering, and other related

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manipulative limitations. Upon remand, the ALJ shall further consider Dr. Sharma’s opinion

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along with the other record evidence, and if appropriate, may also obtain a further consultative

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evaluation concerning plaintiff’s manipulative limitations, including the potential effects of any

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viable treatment for plaintiff’s carpal tunnel syndrome and related impairments.

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Importantly, the court expresses no opinion regarding how the evidence should ultimately

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be weighed upon remand within the confines of the applicable law. The ALJ may well ultimately

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find that plaintiff is capable of frequent handling and fingering, but if so, such a finding must be

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based on proper reasoning and supported by substantial evidence in the record as a whole.

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5.

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The potential impact of a provisional grant of SSI benefits based on a

subsequent claim

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In light of the court’s conclusion that the case must be remanded pursuant to sentence four

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of 42 U.S.C. § 405(g), the issue of a sentence six remand is essentially moot. Indeed, in his reply

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brief, plaintiff suggests that he is truly seeking a sentence four remand and merely wanted to

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notify the court of the subsequent provisional grant of SSI benefits. (ECF No. 29 at 5.)

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In any event, the record before the court suggests that a sentence six remand would not be

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appropriate here. The Ninth Circuit Court of Appeals has recognized that, at least under some

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circumstances, a subsequent favorable decision may constitute new and material evidence for
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purposes of a sentence six remand when the onset date of the subsequent favorable decision is in

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immediate proximity to an earlier denial of benefits. See Luna v. Astrue, 623 F.3d 1032 (9th Cir.

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2010). However, as the Commissioner points out, a subsequent favorable decision does not

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automatically entitle a claimant to a sentence six remand, the propriety of which instead depends

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on the particular record before the court. Id. at 1035. The result may vary based on the extent to

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which the unfavorable and favorable decisions, even if in close proximity to each other, can be

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reconciled by the record and other evidence before the court.
In this case, the ALJ’s decision under review was issued on August 17, 2011 (AT 21), and

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the notice of provisional grant of SSI benefits indicates that plaintiff was granted provisional SSI

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benefits in August/September 2013. (ECF No. 18-1 at 2 [“You meet all the rules to be eligible

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for SSI beginning August 1, 2013. Our rules do not allow us to pay SSI until the month after you

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first meet all of our eligibility rules. Therefore, the first month we can pay you is September

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2013.”].) Therefore, the unfavorable and favorable decisions here are not necessarily in close

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proximity to each other. However, even if they were close in time, it is clear that the grant of SSI

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benefits in this case was merely provisional in nature and not yet a final decision by the

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Commissioner. (ECF No. 18-1 at 1 [“While we are making a final determination about whether

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you are disabled, we will send you payments for up to 6 months.”].)

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Accordingly, the court declines to remand the case pursuant to sentence six of 42 U.S.C. §

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405(g).

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V.

CONCLUSION

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for summary judgment (ECF No. 15) is GRANTED IN PART.

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2. The Commissioner’s cross-motion for summary judgment (ECF No. 25) is DENIED.

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3. The action is remanded for further proceedings consistent with this order pursuant to

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sentence four of 42 U.S.C. § 405(g).

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4. Judgment is entered for plaintiff.

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IT IS SO ORDERED.

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Dated: January 16, 2014

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