21-2027 Claudio-Montanez v. Kijakazi

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 TO 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 20th day of December, two thousand twenty-two.

PRESENT: GUIDO CALABRESI, BETH ROBINSON, Circuit Judges PAUL A. ENGELMAYER *, District Judge _________________________________________

ANA CLAUDIO-MONTANEZ,

Plaintiff-Appellant,

v. No. 21-2027

KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

* Judge Paul A. Engelmayer of the United States District Court for the Southern District of New York, sitting by designation. _________________________________________

FOR APPELLANT: PETER A. GORTON, Lachman & Gorton, Endicott, NY.

FOR APPELLEE: MOLLY E. CARTER (Michael J. Pelgro, Regional Chief Counsel, on the brief), Office of the General Counsel, Social Security Administration, Boston, MA, for Carla B. Freedman, United States Attorney for the Northern District of New York, Albany, NY.

Appeal from an order of the United States District Court for the Northern

District of New York (Peebles, M.J.).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court entered on

July 23, 2021 is VACATED and REMANDED.

Plaintiff-appellant Ana Claudio-Montanez appeals a decision of the district

court affirming the Social Security Commissioner’s (Commissioner) denial of her

applications for disability insurance benefits and supplemental security income.

Claudio-Montanez sought disability benefits based on myriad physical and

mental limitations. In a lengthy decision including a thorough review of the

medical record, the Administrative Law Judge (ALJ) concluded that Claudio-

Montanez had the Residual Functional Capacity (RFC) to perform sedentary work,

and that she could perform past relevant work as a hair braider. Claudio-

2 Montanez challenges the ALJ’s RFC determination on appeal. In particular,

Claudio-Montanez emphasizes the impact of impairments to her feet on her ability

to meet the sitting and/or standing demands of sedentary work and the combined

impact of her impairments on her ability to maintain acceptable levels of attention

and/or attendance. We assume the parties’ familiarity with the underlying facts,

procedural history, and arguments on appeal, to which we refer only as necessary

to explain our decision to vacate and remand.

When reviewing challenges to the Commissioner’s denial of an application

for disability insurance benefits or supplemental security income, we focus on the

administrative ruling rather than the district court’s decision. Rosa v. Callahan,

(2d Cir. 1999). In so doing, we “conduct a plenary review of the

administrative record to determine if there is substantial evidence, considering the

record as a whole, to support the Commissioner’s decision and if the correct legal

standards have been applied.” Cichocki v. Astrue,

, 175–76 (2d Cir.

2013). 1 Substantial evidence is evidence that “a reasonable mind might accept as

adequate to support a conclusion.” Rosa,

.

1 In quotations from caselaw and the parties’ briefing, this opinion omits all internal quotation marks, alterations, footnotes, and citations, unless otherwise noted.

3 For the reasons set forth below, we conclude that the ALJ’s erroneous

determination that Claudio-Montanez’s longtime podiatrist, Dr. Joseph Hogan,

was an unacceptable medical source was not harmless, and that this error, in

combination with others, compromised the ALJ’s conclusions as to the extent of

Claudio-Montanez’s ability to stand and her need for positional changes. In

addition, we remand for reconsideration of the ALJ’s conclusions concerning

Claudio-Montanez’s attentional and attendance capabilities.

I. Dr. Hogan’s Opinions

The Commissioner does not dispute that the ALJ erred in concluding that

Dr. Hogan was not an acceptable medical source. At issue is whether this error

was harmless. We conclude it was not.

An ALJ must follow a two-step analysis to determine the appropriate

weight to give a treating physician’s opinion. See Estrella v. Berryhill,

(2d Cir. 2019).

First, “the ALJ must decide whether the opinion is entitled to controlling

weight.”

An ALJ must afford a treating physician’s opinion controlling weight

if it is well-supported by medically acceptable clinical and laboratory diagnostic

techniques and not inconsistent with other substantial evidence in the record. See

4

(c)(2);2 see also Rosa,

. “The ALJ is not permitted

to substitute [her] own expertise or view of the medical proof for the treating

physician’s opinion or for any competent medical opinion.” Greek v. Colvin,

(2d Cir. 2015).

Second, if the ALJ determines that the opinion is not entitled to controlling

weight, the ALJ must determine how much weight, if any, to give it. See

(c)(2)-(6); see also Rosa,

. In so doing, the ALJ must

explicitly consider the “Burgess factors.” Estrella,

. These are: “(1)

the frequency, length, nature, and extent of treatment; (2) the amount of medical

evidence supporting the opinion; (3) the consistency of the opinion with the

remaining medical evidence; and (4) whether the physician is a specialist.” Id.; see

also Burgess v. Astrue,

(2d Cir. 2008).

A. Step One: Controlling Weight to Acceptable Medical Source.

At step one, the ALJ wrongly found that Dr. Hogan’s opinions did not

warrant “controlling weight” because he was not an acceptable medical source.

2 The Commissioner amended the regulations regarding the treating physician rule for claims filed on or after March 27, 2017. See

.920c. That revision softened the treating physician rule such that a medical source’s “treatment relationship” with a claimant is a factor considered when assessing the persuasiveness of medical source opinions, rather than a basis for affording controlling weight to the treating physician’s opinion. We apply the pre-2017 version of the regulations,

§ 416.927, in effect when Claudio-Montanez filed her claim.

5 See App’x 63;3 see also

(a)(4) (defining licensed podiatrist as

acceptable medical source for impairments of the foot, or foot and ankle,

depending on the state of podiatrist’s practice).4

B. Step Two: Application of the Burgess Factors to Determine Weight of Evidence.

Having concluded that Dr. Hogan was not an acceptable medical source, the

ALJ did not explicitly apply the Burgess factors. Instead, the ALJ concluded that

Dr. Hogan’s opinions warranted little weight because they were not well-

supported given the “scant chronically positive objective clinical findings.” App’x

58-59.

We recognize that an ALJ’s failure to explicitly apply the Burgess factors may

be harmless if a “searching review of the record” reveals that the ALJ applied the

substance of the treating physician rule. Estrella,

. But if the ALJ has

Citations to “App’x” are to Appellant’s appendix. Citations to “CAR” are to the certified 3

administrative record.

4 Whether a podiatrist is a “medical source” with respect to impairments of the foot only or the foot and ankle depends on whether the state in which the podiatrist practices permits practice of podiatry on the foot or the foot and ankle. See

(a)(4). In New York, where Dr. Hogan is licensed, podiatrists may only treat “the ankle and soft tissue of the leg below the tibial tuberosity if the podiatrist has obtained an issuance of a privilege to perform podiatric standard ankle surgery or advanced ankle surgery.”

(1). The record does not show whether Dr. Hogan has such a privilege.

6 not set forth “good reasons” for assigning little weight to the treating physician’s

opinion, we cannot conclude that the error was harmless, and we must remand for

the ALJ to “comprehensively set forth its reasons.”

For the following reasons,

our “searching review of the record” does not reassure us that the ALJ had “good

reasons” for assigning little weight to Dr. Hogan’s opinion.

i. The Error Tainted the ALJ’s Review of Dr. Hogan’s Opinion.

First and foremost, the ALJ’s erroneous conclusion that Dr. Hogan was not

an acceptable medical source tainted her consideration of his opinions from the

outset. In discounting Dr. Hogan’s opinions as not coming from an acceptable

medical source, the ALJ did not afford the deference generally owed to a

claimant’s treating physician. See Burgess,

(recognizing that, under

the applicable regulations, a treating physician’s opinion regarding the claimant’s

impairment is given “controlling weight” if it is “well supported by medically

acceptable clinical and laboratory diagnostic techniques”—including

consideration of a patient’s reported complaints and history— “and is not

inconsistent with the other substantial evidence in the case record”). Moreover,

we have recognized that “not all expert opinions rise to the level of evidence that

is sufficiently substantial to undermine the opinion of the treating physician.”

7 Having concluded that Dr. Hogan was not an acceptable medical source, the ALJ

did not approach his opinions with the deference due. We therefore cannot

conclude that the ALJ would have afforded Dr. Hogan’s opinions little weight

absent her mistake.

ii. The ALJ’s Recitation of Facts Does Not Equate to “Good Reasons.”

The ALJ’s recitation of Dr. Hogan’s treatment history and notes as part of

the overall recitation of facts does not reveal whether and how the ALJ considered

this history when deciding how much weight to assign to Dr. Hogan’s

opinions. See Colon v. Saul, No. 20 Civ. 2113 (KAM),

, at *9

(E.D.N.Y. July 7, 2021) (explaining that “mere recitation of the medical evidence is

insufficient” to provide a rationale). Moreover, we cannot conclude that the ALJ’s

mere identification of Dr. Hogan as a podiatrist reflects that she recognized his

special expertise when assessing the weight to give his opinions. Because the

ALJ’s decision is devoid of consideration, explicit or implicit, of the Burgess factors,

our “searching review of the record” does not assure us that she applied the

substance of the treating physician rule, such that her error regarding Dr. Hogan

was harmless. Estrella,

; see also Schaal v. Apfel,

(2d

Cir. 1998) (“Where there is reasonable basis for doubt whether the ALJ applied

8 correct legal principles, application of the substantial evidence standard to uphold

a finding of no disability creates an unacceptable risk that a claimant will be

deprived of the right to have her determination made according to correct legal

principles.”).

iii. Other Grounds for Rejecting Dr. Hogan’s Opinions Are Unsupported in the Record.

Dr. Hogan opined that Claudio-Montanez would need to elevate her feet for

up to twenty-five percent of the workday, and that she needed to change positions

every ten to fifteen minutes. 5 Some of the ALJ’s bases for rejecting these

restrictions are unsupported by the record, and therefore remand is warranted for

the ALJ to reassess the weight to afford Dr. Hogan’s opinion in light of the

evidence in the record.

With respect to Claudio-Montanez’s need to elevate her feet, the ALJ

concluded that Dr. Hogan’s opinion is inconsistent with the absence of “chronic

findings of redness, heat, swelling, or effusion of the extremities,” CAR 1932, that

would, in the ALJ’s view, support the need for Claudio-Montanez to elevate her

5 Dr. Hogan was not alone in this opinion: Dr. Anne Calkins, Claudio-Montanez’s pain management specialist, opined that she would need to change positions every fifteen minutes, CAR 2433, and Dr. Eric Seybold, Claudio-Montanez’s orthopedic surgeon opined that she would need to change positions every thirty minutes. CAR 825. Significantly, the vocational expert testified that the need to change positions every ten to fifteen minutes would preclude Claudio- Montanez from doing any job available in the national economy. CAR 158-59.

9 feet. We recognize an ALJ’s role in resolving conflicts in the record, see Veino v.

Barnhart,

(2d Cir. 2002), but in this instance the ALJ improperly

set her own judgment against that of a treating physician, as she does not cite to

medical opinions or other evidence establishing that the absence of these

symptoms undermines Dr. Hogan’s opinions. See Burgess,

(“Genuine conflicts in the medical evidence are for the Commissioner to resolve.”);

see also Rosa,

(explaining that when an ALJ rejected a doctor’s finding

of loss of motion because there were no reports of muscle spasm to corroborate the

loss of motion, the ALJ erred for having improperly “set [her] own expertise

against that of” the treating physician). In addition, we have suggested that where

an ALJ determines, without medical evidence, that the absence of specific

symptoms forecloses or undermines a diagnosis, we have not hesitated to

remand. See Selian v. Astrue,

(2d Cir. 2013).

Moreover, the ALJ’s reliance on some of Claudio-Montanez’s activities, such

as cooking, cleaning, doing laundry, shopping, enrolling in school, or caring for

her mother is misplaced. See CAR 345, 707, 1918, 2997, 3027. Substantial evidence

does not support the ALJ’s finding that Claudio-Montanez’s daily activities are

10 inconsistent with the above restrictions Dr. Hogan recommended. 6 See Riccobono

v. Saul, 796 F. App’x. 49, 50 (2d Cir. 2020) (summary order) (“[W]hile the ALJ may

have given appropriate reasons for not according controlling weight to some of

the opinions of [the claimant’s] treating physicians, she must still base her

conclusion on some medical opinion or otherwise articulate the overwhelmingly

compelling reasons for not doing so.” (emphasis in original)); Balsamo v. Chater,

(2d Cir. 1998) (“[A] claimant need not be an invalid to be found

disabled under the Social Security Act.”); Lamond v. Astrue,

(2d Cir. 2011) (summary order) (upholding ALJ decision not to credit a treating

physician’s opinion that the claimant needed to elevate his legs where a medical

expert explained that the claimant’s ability to walk normally and perform daily

living activities without significant pain meant that claimant could sit for several

hours without the need for leg elevation). Further, a claimant’s “ability to engage

in certain activities of daily living—such as caring for…children, preparing meals

and washing dishes, and driving to her medical appointments” is insufficient to

6 Claudio-Montanez’s activity of walking for twenty minutes at a time is, however, inconsistent with Dr. Hogan’s stated limitation of not being able to walk for more than five minutes at a time. CAR 1049, 1458.

11 render “a treating physician’s findings flawed.” Colgan v. Kijakazi,

,

363 (2d Cir. 2022).

In fact, Claudio-Montanez’s testimony regarding her daily activities is

essentially consistent with Dr. Hogan’s recommendations. CAR 60-61, 79, 147-48,

1969-70. Notably, the ALJ acknowledges Claudio-Montanez’s testimony that

while helping her mother, she would work for ten minutes at a time, then proceed

to take a break and elevate her feet on the coffee table, behavior consistent with

Dr. Hogan’s opinions. App’x 54. But the ALJ discredits Claudio-Montanez’s

testimony without adequate explanation.

Similarly, as it relates to Claudio-Montanez’s school-related activities, there

is scant evidence of the length of Claudio-Montanez’s classes, the duration she

regularly remained seated, and whether she elevated her feet. 7 CAR 2997, 3027.

So, the ALJ’s inference that her enrollment in school is inconsistent with Dr.

Hogan’s restrictions relies on speculation. See App’x 53, 58; see also United States v.

7 At most, there is evidence that on two occasions, Claudio-Montanez sat for a prolonged duration to complete schoolwork, but this does not constitute substantial evidence to support the ALJ’s finding that the record does not support a sit/stand limitation, especially where such evidence is derived from medical reports documenting Claudio-Montanez complaining of pain resulting from such prolonged sitting. See CAR 2997, 3027; see also Nelson v. Bowen,

(2d Cir. 1989) (reasoning that choosing to endure pain in order to pursue important goals should not be held against a claimant when determining benefits unless conduct truly showed ability to work).

12 Pauling,

(2d Cir. 2019) (explaining that impermissible speculation

occurs when there is the absence of probative facts to support the conclusion).

Likewise, Claudio-Montanez’s activities in caring for her mother—

including cleaning, sweeping, washing dishes, doing laundry, driving her to

medical appointments, and dispensing medications—are not incompatible with

the restrictions Dr. Hogan and others identified, as those restrictions relate to the

need for positional changes, and to elevate her feet, rather than exertional

limitations. In addition, Claudio-Montanez cared for her mother for an average of

eighteen hours per week, which is far less than a forty-hour full-time work

schedule. App’x 40, 54; CAR 2273-74. And we note that while the ALJ emphasized

that Claudio-Montanez worked as many as thirty-nine hours in one week, the

evidence she cites in fact reflects Claudio-Montanez worked thirty-nine hours in

one two-week pay period. App’x 54; CAR 2273-74.

In sum, the ALJ’s rejection of Dr. Hogan’s opinions underlays critical

conclusions in her ultimate RFC determination. For these reasons, despite the

ALJ’s lengthy analysis in this complex case, we are unconvinced that the ALJ’s

13 erroneous determination that Dr. Hogan was not an acceptable medical provider

was harmless. 8

II. Off-Task and Absenteeism.

The ALJ found that the record does not support limits in excessive

absenteeism or other significant off-task behavior in a full-time work setting as a

result of Claudio-Montanez’s physical and mental impairments. Although we

affirm the ALJ’s determination as it relates to Claudio-Montanez’s mental

impairments,9 remand is warranted for the ALJ to reassess the weight afforded to

Claudio-Montanez’s treating physicians’ opinions regarding absenteeism and off-

task behavior stemming from her physical impairments.

Even though every treating physician opined that Claudio-Montanez’s

physical impairments would prevent her from meeting employer demands for

8 For similar reasons, we cannot conclude that evidence of Claudio-Montanez preparing a Thanksgiving meal in 2013, dancing with her granddaughter in December 2016, and traveling to New Jersey undermine her treating physicians’ opinions that she needs to frequently change positions from sitting to standing.

We agree with the Commissioner that Claudio-Montanez recites facts without addressing any 9

of the ALJ’s reasoning as to this issue, and that she has thus forfeited this issue on appeal. See Tolbert v. Queens College,

(2d Cir. 2001). Even assuming Claudio- Montanez preserved this issue on appeal, we would conclude that substantial evidence supports the ALJ’s determination that the restriction on Claudio-Montanez’s skill level accommodated her particular mental limitations. CAR 1936-37, 1939. The ALJ in this instance relied on medical opinions indicating that her difficulties in dealing with stress were primarily triggered when performing more detailed or complex tasks, making frequent decisions, and performing inconsistent job duties.

14 staying on task and maintaining full-time attendance, App’x 67; CAR 759, 824-25,

2432-33, the ALJ affords these opinions “little weight” by relying on evidence she

believed contradicted them. App’x 67. The ALJ did not choose between medical

opinions, but instead improperly weighed her own judgment against that of

Claudio-Montanez’s treating physicians’ expertise. Greek,

. The

Commissioner’s argument that the ALJ relied on Dr. Annamalai Periakaruppan’s

opinion to support her determination is unpersuasive, as our review of the ALJ’s

decision does not indicate such reliance when making her determination. App’x

62. 10

Even assuming the ALJ relied on Dr. Periakaruppan’s opinion when

assessing Claudio-Montanez’s ability to sustain full-time work, we agree with

Claudio-Montanez that Dr. Periakaruppan’s opinion does not constitute a

contrary opinion to that of her treating physicians on this issue. 11 We are

10We note the ALJ relied on Dr. Rehman’s opinion, but as Dr. Rehman only assessed Claudio- Montanez’s mental impairments, the ALJ’s reliance on such opinions is irrelevant to our review of whether she provided “good reasons” for affording “little weight” to her treating physicians’ opinions regarding her off-task behavior and absenteeism secondary to her physical impairments. App’x 66; CAR 2944.

11 To the extent the Commissioner argues that Claudio-Montanez is precluded from arguing to this Court that Dr. Periakaruppan’s opinion does not contradict her treating physicians’ opinions because she did not raise it in the district court, we disagree. As Claudio-Montanez notes, the Commissioner raised this issue before the district court and “opened the door” to Claudio- Montanez addressing it in her reply brief before the district court.

15 unconvinced that Dr. Periakaruppan’s opinions on the preprinted Programs

Operations Manual System (POMS) form implicitly address her general ability to

sustain focus and maintain attendance at full time work. Instead, the POMS form

reflects Dr. Periakaruppan’s opinions regarding whether Claudio-Montanez

would be able to perform tasks such as, lifting, carrying, standing, sitting, pushing,

pulling, and bending in a way that would allow her to sustain full-time work.

CAR at 2034-2036. We cannot uphold the inference that in rendering these

opinions, Dr. Periakaruppan implicitly opined as to Claudio-Montanez’s general

ability to remain on-task and sustain full-time work without excessive

absenteeism.

Moreover, the other evidence the ALJ cites to support her decision to give

“little weight” to Claudio-Montanez’s treating physicians is not substantial.

App’x 61-62, 67-68. For example, the ALJ’s reliance on Claudio-Montanez’s ability

to care for her mother does little to advance her reasoning that the record does not

support Claudio-Montanez’s treating physicians’ opinion that she will be

significantly off-task and frequently absent as a result of her pain. Claudio-

Montanez cared for her mother for an average of eighteen hours per week, which

is far less than the forty-hour full-time work schedule she would have to maintain.

16 App’x 40, 54. The ALJ reasons that because Claudio-Montanez would be

performing sedentary work that is less physically demanding than the activities

she performed in the past, she will not experience the pain that would result from

her physical impairments, and she therefore would not be off-task and absent as

her treating physicians concluded. App’x 67. Again, the ALJ does not have the

qualified expertise to make such a determination. Brault v. Social Sec. Admin.,

Comm'r,

(2d Cir. 2012).

The ALJ’s reliance on Claudio-Montanez’s school attendance also does little

to contradict the treating physicians’ opinions, as the record lacks evidence that

would give such an activity the significance the ALJ gives it. The ALJ finds that

Claudio-Montanez’s attendance at school required her “sustained attention,

concentration, and good attendance.” App’x 67. However, the record does not

provide any support for “good attendance.” CAR 2997, 3001. And even if

Claudio-Montanez had perfect attendance, because the record does not include

evidence of Claudio-Montanez’s class schedule or course-load, the demands of

such activity cannot be compared to the demands of a full-time work schedule.

Pauling,

.

17 Moreover, there is no evidence in the record to establish Claudio-

Montanez’s success in concentrating during her classes or while completing her

assignments such that her enrollment in classes would undermine her treating

physicians’ opinions. CAR 2997, 3001, 3027. For that reason, Claudio-Montanez’s

school attendance does not undermine her treating physicians’ opinions that if

Claudio-Montanez were required to maintain a full-time schedule, she would be

significantly off-task and frequently absent.

Similarly, Claudio-Montanez’s ability to attend stand-alone medical

appointments and hearings that do not demand Claudio-Montanez’s presence or

prolonged sitting for forty hours a week does little, if anything, to contradict

Claudio-Montanez’s treating physicians’ opinions that she will be frequently

absent from work. Especially where, as here, the ALJ also found that Claudio-

Montanez cancelled some of her appointments. App’x 58.

To the extent the Commissioner argues that Claudio-Montanez’s ability to

prepare meals and tend to her personal care constitute “good reason” for giving

little weight to her physicians’ opinions that she would be significantly off-task

and frequently absent if she were required to maintain a full-time work schedule,

we disagree. Preparing meals and tending to one’s personal care are markedly

18 different than working full-time, and Claudio-Montanez has explained the limited

nature of these tasks. See CAR 60-61, 79, 148, 151, 1969-70; see also Balsamo,

. Indeed, we have repeatedly recognized that engaging in basic activities

necessary to one’s welfare is markedly different from working full-time, see, e.g.,

Rucker v. Kijakazi,

(2d Cir. 2022); Colgan, 22 F.4th at 363 (explaining

that a claimant’s ability to care for children, prepare meals, wash dishes, and drive

to medical appointments is insufficient to find error in a treating physician’s

findings).

Based on the foregoing, we disagree with the Commissioner that the ALJ

provided “good reasons” for giving Claudio-Montanez’s treating physicians little

weight as it relates to their opinions on off-task behaviors and absenteeism

secondary to her physical impairments. Our “searching review of the record” does

not assure us that the ALJ applied the substance of the treating physician’s rule

such that we would be able to review her decision based on her current RFC

determination. Burgess,

(explaining that a “circumstantial critique

by non-physicians, however thorough or responsible, must be overwhelmingly

compelling in order to overcome a medical opinion”).

III. Conclusion

19 We have considered the parties’ remaining arguments and need not address

them in light of the foregoing. Accordingly, the judgment of the district court

is VACATED and the case is REMANDED with instructions to remand the

matter to the Commissioner for reconsideration consistent with this order.

Specifically, the ALJ is to reconsider the issue of whether Claudio-Montanez has

the RFC to perform her past relevant work as a hair braider and, if not, whether

she could make an adjustment to other work. In addressing this issue, the ALJ is

to reconsider how much weight to give the opinions of Claudio-Montanez’s

treating physicians, Dr. Hogan, Dr. Shoaib Ahmed, Dr. Calkins, Dr. Seybold, and

Dr. Wood concerning (1) Claudio-Montanez’s need to elevate her feet; (2) Claudio-

Montanez’s need to alternate between sitting and standing; and (3) Claudio-

Montanez’s potential absenteeism and off-task behavior.

* * *

VACATED and REMANDED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

20