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, 168
F.3d 72, 77 (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, 729 F.3d 172, 175–76 (2d Cir.
2013). 1 Substantial evidence is evidence that “a reasonable mind might accept as
adequate to support a conclusion.” Rosa, 168 F.3d at 77.
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, 925 F.3d 90,
95 (2d Cir. 2019).
First, “the ALJ must decide whether the opinion is entitled to controlling
weight.” Id. 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 20 C.F.R. § 416.927(c)(2);2 see also Rosa, 168 F.3d at 78-79. “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, 802
F.3d 370, 375 (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 20 C.F.R.
§ 416.927(c)(2)-(6); see also Rosa, 168 F.3d at 78-79. In so doing, the ALJ must
explicitly consider the “Burgess factors.” Estrella, 925 F.3d at 95-96. 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, 537 F.3d 117, 129 (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 20 C.F.R. § 416.920c. 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, id. § 416.927, in effect when Claudio-Montanez filed her claim.
5 See App’x 63;3 see also 20 C.F.R. § 416.902(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, 925 F.3d at 96. 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 20 C.F.R. § 416.902(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.” N.Y. EDUC. LAW § 7001(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.” Id. 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, 537 F.3d at 128 (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.” Id.
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), 2021 WL 2827359, 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, 925 F.3d at 96; see also Schaal v. Apfel, 134 F.3d 496, 504 (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, 312 F.3d 578, 588 (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, 537 F.3d at 128
(“Genuine conflicts in the medical evidence are for the Commissioner to resolve.”);
see also Rosa, 168 F.3d at 79 (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, 708 F.3d 409, 419 (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,
142 F.3d 75, 81 (2d Cir. 1998) (“[A] claimant need not be an invalid to be found
disabled under the Social Security Act.”); Lamond v. Astrue, 440 F. App’x 17, 21-22
(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, 22 F.4th 353,
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. Id.
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, 882 F.2d 45, 49 (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, 924 F.3d 649, 656 (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, 242 F.3d 58, 75 (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, 802 F.3d at 375. 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, 683 F.3d 443, 446 (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, 924 F.3d at 656.
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, 142 F.3d
at 81. 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, 48 F.4th 86, 92 (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, 537 F.3d at 129 (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