RFC Must Address Off-Task Time and Absenteeism When “Moderate” CPP Limitations and VE Thresholds Are in the Record
1. Introduction
This appeal concerns the adequacy of an Administrative Law Judge’s residual functional capacity (“RFC”) finding in a Social Security disability case involving panic disorder/agoraphobia and generalized anxiety disorder. Plaintiff-Appellant Govanni R. Nunez, formerly a New York Public Library security guard, alleged disability beginning August 22, 2018 after panic attacks and medication side effects disrupted his work and led to termination. After the Social Security Administration denied benefits and the district court affirmed, the Second Circuit vacated and remanded.
The key issue was not whether Nunez had mental limitations—everyone agreed he did—but whether the ALJ lawfully translated those limitations into an RFC that supported step-five employability findings. In particular:
- A vocational expert testified (without contradiction) that competitive employment for an unskilled worker would be eliminated if the worker is off task >10% of the workday or absent >1 day/month.
- The ALJ found Nunez had a “moderate limitation” in “concentrating, persisting, or maintaining pace” (“CPP”), a regulatory domain that includes staying on task and maintaining regular attendance.
- Yet the RFC did not include explicit off-task or attendance limitations, and the ALJ did not explain—using substantial evidence—why those limitations were unnecessary.
2. Summary of the Opinion
The court held that the ALJ’s RFC determination was not supported by substantial evidence because it failed to incorporate (or justify omitting) limitations concerning Nunez’s ability to remain on task and maintain regular attendance—despite the vocational expert’s dispositive thresholds and medical opinions consistently indicating at least moderate limitations in those areas.
The Second Circuit vacated the district court’s judgment and remanded with instructions that the Commissioner further develop the record and reconsider the application, specifically focusing on:
- Whether Nunez can remain on task at least 90% of the day and miss no more than one day per month; and
- Whether, given attendance limitations, jobs exist in significant numbers at step five.
3. Analysis
3.1 Precedents Cited
Standards of review and “substantial evidence”
- Schillo v. Kijakazi and Estrella v. Berryhill: The court reiterated that appellate review focuses on the administrative decision and asks whether substantial evidence supports it and whether correct legal standards were applied. Importantly, Schillo/Estrella are cited for the requirement that the ALJ provide the “crucial factors” with “sufficient specificity” to allow meaningful review.
- Selian v. Astrue and Mongeur v. Heckler: Selian (quoting Mongeur) underscores that courts examine the entire record, including contradictory evidence and conflicting inferences. Mongeur supplies the key remand principle used here: remand is appropriate when the court “cannot fathom the ALJ’s rationale in relation to evidence in the record,” unless the rationale can be “glean[ed]” from the record. The majority used Mongeur to explain why an unexplained omission of attendance/off-task limits could not be salvaged by deference.
- Brault v. Soc. Sec. Admin., Comm'r: Brault is cited for the highly deferential nature of substantial evidence review, but the majority emphasized that deference does not excuse missing logic or evidentiary support for critical RFC assumptions.
Five-step framework and step-five burden
- McIntyre v. Colvin: McIntyre is used for both the sequential evaluation framework and the rule that at step five the Commissioner bears the burden to show jobs exist in significant numbers that the claimant can perform given the RFC. Here, the majority found that the step-five showing failed because the RFC omitted limitations that—if credited—would be dispositive under the vocational expert’s testimony.
Medical opinion evaluation under the post-2017 regulations
- Rubin v. O'Malley: Rubin is central. The majority drew two propositions: (1) an ALJ’s RFC need not match any single medical opinion; but (2) where no medical opinion supports the RFC’s implicit assumptions (here: acceptable absenteeism and on-task time), that absence is “not insignificant,” especially when the record provides a “consistent narrative” to the contrary. Rubin is also invoked for the proposition that affirmance based on “gleaned” rationale presupposes that the ALJ did not disregard or misconstrue relevant evidence.
- Estrella v. Berryhill (again): Although Estrella addressed the treating physician rule era, the majority relied on its mental-health-specific caution: symptoms can be cyclical, so sporadic improvement does not necessarily undermine disabling limitations—particularly those tied to reliability (attendance, persistence).
Absences as a dispositive vocational factor
- Lesterhuis v. Colvin: Lesterhuis is the closest analogue on the ultimate point: remand is warranted where the record lacks “contrary ‘substantial evidence’” supporting an ALJ’s conclusion regarding disability in light of likely monthly absences. The majority used Lesterhuis to treat absenteeism as a vocationally determinative limitation when a vocational expert supplies a clear threshold.
Symptom evaluation and mental-health proof
- Genier v. Astrue and Williams ex rel. Williams v. Bowen: These cases support the idea that ALJs may assess credibility but must do so with enough specificity to permit review, and the determination must be supported by substantial evidence. The majority used them to criticize what it viewed as cherry-picking in discounting Nunez’s testimony and self-reports.
- Rucker v. Kijakazi and Green-Younger v. Barnhart: The majority relied on these to reject the ALJ’s apparent discounting of psychiatric opinions because they relied on self-report. Rucker emphasizes psychiatric assessment is “inherently based on subjective reports,” and Green-Younger calls patient history “an essential diagnostic tool.”
Activities of daily living are not equivalent to sustained work
- Balsamo v. Chater and Colgan v. Kijakazi: The majority invoked these to explain that occasional activities (shopping, church, some travel) do not necessarily translate to full-time competitive work, particularly when the key vocational question is reliable attendance and persistence.
Dissent’s authorities (and what they contribute)
- Biestek v. Berryhill, Veino v. Barnhart, and Cichocki v. Astrue: The dissent relied on these to emphasize the low threshold of substantial evidence, the Commissioner’s role in resolving conflicts, and the relevance of daily activities to RFC support.
- Sacerdote v. N.Y. Univ.: Used rhetorically to compare substantial-evidence deference to clear-error review, arguing the majority improperly displaced the ALJ’s factfinding.
3.2 Legal Reasoning
(a) The RFC must operationalize “moderate” CPP limitations into work-relevant terms
The ALJ found a “moderate limitation” in CPP. The opinion stresses that, per the regulatory definition the panel quoted (20 C.F.R. § 404, subpt. P, app’x 1), CPP includes the ability to “stay on-task at a sustained rate,” maintain “regular attendance,” and work a full day without excessive breaks. Because the vocational expert established bright-line thresholds (off task >10%; absences >1 day/month), any meaningful RFC addressing CPP must confront those metrics.
(b) “Goal-oriented” work was not a substitute for attendance and off-task findings
The RFC limited Nunez to “a setting that is goal-oriented versus requiring that he maintain a specific pace consistent throughout the day.” The court treated this as a pace/production-style limitation, but not an attendance/on-task limitation. With the record repeatedly indicating limitations in sustaining routine and attendance, the ALJ needed either:
- an explicit RFC limitation for absences/off-task time; or
- a supported explanation why those limits were not warranted despite the “moderate” CPP finding and medical opinions.
(c) The medical-opinion record did not substantially support the omission
The majority emphasized that every medical opinion found at least moderate limitations related to sustaining routine, attention, and/or attendance. Two opinions (Dr. Schulte and Dr. Ellis) expressly predicted absences of two or more days per month, which—under the vocational expert’s testimony—would be work-preclusive. Even the opinion the ALJ deemed partly persuasive (Dr. Bromley) contained an unexplained statement that Nunez was “moderately limited” in sustaining routine and attendance, without translating that into an absenteeism estimate.
In this posture, the court viewed the RFC’s implicit assumptions (no more than one absence per month; on task at least 90% of the day) as unsupported “crucial factors” for step five.
(d) Errors in persuasiveness analysis: “consistency,” “supportability,” and cherry-picking
Applying 20 C.F.R. § 404.1520c, the court found the ALJ’s rejection of most medical opinions for “inconsistency” problematic because the opinions were largely consistent with each other and with longitudinal treatment notes and testimony. It also criticized:
- Cyclical-improvement reasoning: relying on intermittent improvement to discount chronic limitations (invoking Estrella’s caution).
- Self-report discounting in psychiatry: treating self-reports as undermining supportability (contrary to Rucker and Green-Younger).
- Selective reading of functioning: citing exhibits as support for regular public transportation use, when the cited materials indicated difficulty traveling alone and panic on buses/subways.
(e) Step-five burden and vocational testimony as a “hinge”
The decision frames the case as turning on whether the Commissioner carried the step-five burden after a properly supported RFC. Because the vocational expert provided undisputed, quantitative work-preclusive thresholds, and the record contained substantial indications Nunez would exceed them, the RFC’s silence on these points prevented the Commissioner from meeting the step-five burden on this record.
3.3 Impact
- Operationalizing CPP limitations: In the Second Circuit, an RFC that finds “moderate” CPP limitations but omits any discussion of off-task time and attendance—especially when a vocational expert supplies dispositive thresholds—faces heightened risk of remand unless the ALJ clearly explains the evidentiary basis for omission.
- Absenteeism becomes a central RFC variable in mental-health cases: The opinion reinforces that attendance reliability is embedded in CPP and often vocationally determinative; ALJs must build a record that can support a quantified conclusion (or explain why quantification is unnecessary).
- Stricter scrutiny of “consistency” rejections when opinions align: Rejecting multiple aligned opinions as “inconsistent” may be harder to sustain without identifying what evidence actually contradicts them and why it is more probative.
- Limits on cherry-picking daily activities: Sporadic errands, intermittent “good days,” or some travel with difficulty will not automatically establish capacity for full-time work—particularly where the dispositive vocational factor is reliability (attendance/off-task).
- Administrative practice signal: The remand instructions encourage ALJs to obtain clarifying medical opinions (or interrogatories) specifically addressing likely off-task time and absenteeism when the record suggests such limitations.
4. Complex Concepts Simplified
- Residual Functional Capacity (RFC): The most a claimant can do in a work setting on a sustained basis despite impairments. It must be stated in functional work terms (e.g., interaction limits, pace limits, time off task, absences).
- “Concentrating, persisting, or maintaining pace” (CPP): A regulatory category covering staying focused, working at an appropriate rate, persisting through a workday, and maintaining regular attendance without excessive breaks.
- Off-task time: Time during the workday a person cannot sustain work activity (due to symptoms, panic episodes, sedation, etc.). Vocational experts often testify that beyond a certain percentage, competitive employment is eliminated.
- Absenteeism: Missing workdays due to symptoms or treatment. For many unskilled jobs, vocational experts testify that more than ~1 day/month is work-preclusive.
- Substantial evidence: Not “beyond a reasonable doubt,” but enough relevant evidence that a reasonable mind could accept to support the conclusion. Even under this deferential standard, an ALJ must articulate the key factual assumptions necessary for the decision.
- Supportability vs. consistency (20 C.F.R. § 404.1520c): “Supportability” asks whether the clinician explains and backs the opinion with objective findings; “consistency” asks whether the opinion aligns with the rest of the record.
5. Conclusion
Nunez v. Commissioner of Social Security reinforces an administrability-focused rule: when the record contains a “moderate” CPP finding, aligned medical evidence suggesting limitations in routine/attendance, and vocational testimony that specifies the work-preclusive thresholds for off-task time and absences, an ALJ cannot deny benefits using an RFC that is silent on attendance/off-task capacity without a substantial-evidence foundation and an articulated rationale. The decision strengthens the Second Circuit’s demand for a reviewable bridge between mental-function findings and the concrete workplace tolerances that control step-five outcomes—especially in anxiety and panic-disorder cases where symptoms can be cyclical and psychiatric assessment necessarily relies on self-report.
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