Nunez v. Commissioner of Social Security: Substantial Evidence and Residual Functional Capacity for Attendance and Time Off Task in Mental Health Disability Claims

I. Introduction

In Nunez v. Commissioner of Social Security, No. 23‑831‑cv (2d Cir. Nov. 25, 2025), the Second Circuit vacated a district court judgment that had affirmed the denial of Social Security disability benefits to Govanni R. Nunez, a former library security guard suffering from panic disorder with agoraphobia and generalized anxiety disorder. The court held that the Administrative Law Judge (ALJ) failed to support her residual functional capacity (RFC) finding with substantial evidence, specifically as to Nunez’s ability to:

remain on task at least 90% of the workday, and
attend work regularly (missing no more than one day per month).

The case centers on the intersection of:

the SSA’s sequential five‑step disability framework,
the regulatory definition of the mental functional area “concentrating, persisting, or maintaining pace,”
vocational expert (VE) testimony about acceptable levels of time off task and absenteeism, and
the post‑2017 regulatory regime governing evaluation of medical opinions (20 C.F.R. § 404.1520c).

A dissent by Judge Sullivan underscores a sharp disagreement over the proper application of the “very deferential” substantial‑evidence standard. The majority found the ALJ’s RFC analysis internally inconsistent and unsupported by the record; the dissent viewed the same record as more than sufficient to sustain the Commissioner’s decision.

The decision is significant for Social Security practice in the Second Circuit, particularly in mental health cases where limitations in concentration, persistence, pace, and attendance are often dispositive of employability.

II. Summary of the Opinion

A. Holding

The Second Circuit (Judge Lee, joined by Judge Carney) held:

The ALJ’s RFC finding omitted any concrete limitation regarding Nunez’s ability to:
- stay on task throughout the workday, and
- maintain regular work attendance,
despite:
- the ALJ’s own finding of a moderate limitation in “concentrating, persisting, or maintaining pace,” a regulatory concept that expressly includes regular attendance and staying on task at a sustained rate; and
- uncontroverted VE testimony that an individual who is:
  - off task more than 10% of the workday, or
  - absent more than one day per month
  could not maintain unskilled employment.
All medical opinions the ALJ found persuasive (primarily the consultative examiner, Dr. Bromley) unanimously recognized at least some limitation in Nunez’s ability to sustain an ordinary work routine, stay on task, and/or maintain regular attendance.
Given this record, there was no substantial evidence to support the ALJ’s implicit finding that Nunez could:
- be on task at least 90% of the time, and
- miss no more than one day per month,

Accordingly, the court:

Vacated the district court judgment; and
Remanded to the Commissioner for further record development and reconsideration, directing the agency to:
1. Reassess Nunez’s RFC at step four, including explicit findings on:
  - whether he can be off task no more than 10% of the day; and
  - whether he can miss no more than one day per month.
2. At step five, determine whether, given any such limitations, there are significant numbers of jobs in the national economy that he can perform.

B. The Dissent

Judge Sullivan dissented, arguing that:

The record “brims with evidence” that Nunez’s anxiety and panic symptoms improved with treatment and that he engaged in a range of daily activities.
Under the highly deferential substantial‑evidence standard (as elaborated in Biestek and Brault), a reviewing court may not overturn the ALJ merely because the evidence could support a contrary finding.
The majority improperly “flyspecks” the record and substitutes its own factfinding for that of the ALJ.

III. Detailed Analysis

A. Factual and Procedural Background

Nunez, a security guard at the New York Public Library, had limited formal education (special education through 5th grade, then left school) and worked overseeing a library entrance. At age 35, he experienced his first panic attack on the subway, leading to repeated panic episodes in enclosed spaces, especially on public transit.

He was treated for anxiety and panic attacks from at least 2016. Lexapro controlled his symptoms for about a year, but after tapering off, the symptoms recurred in 2018. Even after resuming medication, he:

experienced frequent panic attacks, sometimes at work, forcing him to leave his post; and
became drowsy and fell asleep at work due to medications (notably Atarax, used up to 3–4 times daily as an “emergency” anxiolytic).

He was fired in August 2018 for having “too many panic attacks on the job.” He alleged disability as of his termination date and applied for:

Social Security Disability Insurance (SSDI), and
Supplemental Security Income (SSI).

The SSA denied his claim initially; he requested a hearing before ALJ Angela Banks, who held a hearing in August 2019 with testimony from:

Nunez,
his counsel, and
a vocational expert (VE).

The key factual components:

Symptom testimony: daily morning tremors, frequent panic attacks triggered by going outside, bus or subway, shortness of breath, and heavy reliance on sedating medication that made him feel as if his “whole life is sleeping.” He had only 2–3 “good days” per week to do chores, attend nearby church (sometimes leaving mid‑service), and visit family (with rides provided).
VE testimony: unskilled work would not be sustainable if the worker:
- was off task more than 10% of the time, or
- missed more than one day of work per month.
Medical opinion evidence from:
- Dr. Schulte (treating psychiatrist),
- Dr. Blackwell (state agency reviewer),
- Dr. Bromley (consultative psychiatrist; opinion partially credited),
- Dr. Ellis (examining psychologist), and
- Dr. Miskin (examining psychiatrist, opined “permanently disabled,” but not substantively addressed by the ALJ).

All providers who addressed the issue agreed that Nunez had at least moderate limitations staying on task and attending work regularly; some opined that he would miss two or more days per month.

B. The Five-Step Framework and the ALJ’s Decision

The majority carefully situates its analysis within the SSA’s five‑step sequential evaluation (42 U.S.C. § 423(d); 20 C.F.R. §§ 404.1520, 416.920), as previously summarized in Estrella and McIntyre:

Substantial Gainful Activity: Nunez had not engaged in substantial work since his alleged onset date (August 22, 2018).
Severe Impairment: Severe impairments found— asthma, agoraphobia with panic disorder, generalized anxiety disorder.
Listings: Impairments did not meet or equal any Listing.
Step Four – RFC / Past Relevant Work:
- The ALJ found Nunez could perform a full range of work at all exertional levels, limited to:
  - simple work “that can be learned in up to 30 days,”
  - a “goal‑oriented” setting rather than a job requiring maintenance of a fixed pace throughout the day, and
  - only occasional public interaction (but normal interaction with coworkers and supervisors).
- The ALJ found he could not perform past work as a security guard.
Step Five – Other Work:
- Relying on VE testimony, the ALJ concluded that given his RFC, age, education, and work history, Nunez could perform unskilled jobs such as final assembler, hand packager, and product assembler, and thus was not disabled.

Crucially, at step three the ALJ found Nunez had a “moderate limitation” in “concentrating, persisting, or maintaining pace”, one of the four “paragraph B” functional areas used to evaluate mental impairments (20 C.F.R. § 404.1520a(c)(3)).

The regulations define that functional area to include:

“the abilities to focus attention on work and to stay on-task at a sustained rate,” and
“sustain an ordinary routine and regular attendance at work and work a full day without needing more than the allotted number or length of rest periods.”

Despite this, the ALJ’s RFC contained no specific limitation on:

time off task, or
absenteeism.

That disconnect is the pivot of the majority’s analysis.

C. The Core Legal Reasoning: RFC, VE Testimony, and “Moderate” Limitations

1. The implicit RFC finding on attendance and on‑task time

The VE’s uncontradicted testimony set clear employability thresholds for an unskilled worker:

Off task: more than 10% of the workday is disabling; and
Absences: more than one day per month is disabling.

By concluding at step five that Nunez could perform other unskilled jobs, the ALJ necessarily—and implicitly—found that he:

would be on task at least 90% of the workday; and
would miss no more than one day of work per month.

The majority holds that such an implicit finding required affirmative evidentiary support. Yet:

The ALJ explicitly found a “moderate” limitation in the “concentrate, persist, maintain pace” domain—regulatorily defined to cover attendance and sustained on‑task functioning.
Every medical source the ALJ deemed “persuasive” or partially persuasive, especially the consultative psychiatrist Dr. Bromley, found at least moderate limitations in:
- sustaining an ordinary routine,
- maintaining regular attendance, and/or
- maintaining attention and concentration.

The majority is particularly concerned with the gap between:

the ALJ’s acknowledgment that Dr. Bromley credibly found Nunez “moderately limited” in sustaining an ordinary routine and regular attendance; and
the ALJ’s RFC, which did not translate that into any vocationally meaningful constraint on time off task or absenteeism.

This, the court concludes, leaves “no substantial evidence in the record” to support the implicit finding that Nunez meets the VE’s 10%/one‑day thresholds.

2. The significance of SSA’s “moderate” and “moderate‑to‑marked” definitions

The court points to SSA’s own impairment questionnaire language, where:

“moderate” limitations are described as causing interference “up to 1/3 of an 8‑hour workday,” and
“moderate‑to‑marked” as interference from 1/3 to 2/3 of the day.

If those definitions guided Dr. Bromley’s and the ALJ’s use of “moderate,” then a moderate limitation in sustaining routine and attendance could be incompatible with the VE’s threshold of no more than 10% off task. The panel is careful not to over‑read this, noting:

The record does not explicitly show that Dr. Bromley or the ALJ invoked those technical definitions.
But if they did, it “would strongly suggest that Nunez is disabled” under the VE’s testimony.

This ambiguity is a core reason for remand: the court “cannot fathom the ALJ’s rationale in relation to the evidence in the record” (Mongeur standard) and requires clarification and possible further development of the record.

3. The absence of any medical opinion supporting the ALJ’s effective attendance/on‑task finding

In Rubin v. O’Malley, 116 F.4th 145 (2d Cir. 2024), the Second Circuit stressed that while an ALJ’s RFC need not be anchored to a single medical opinion, the absence of any supporting opinion is “not insignificant.” Applying that principle:

No medical source opined that Nunez:
- would be off task less than 10% of the day, and
- would miss no more than one day per month.
By contrast, the only providers who quantified expected absences (Dr. Schulte and Dr. Ellis) concluded he would miss at least two days per month, sometimes more than three.

Given the VE’s testimony, that gap is dispositive: the Commissioner bears the burden at step five to show there are jobs in the national economy that the claimant can perform given the RFC actually supported by the record. The panel finds that burden unmet because the VE’s job testimony was predicated on an unfounded assumption regarding acceptable attendance and time‑on‑task.

The court analogizes to Lesterhuis v. Colvin, 805 F.3d 83 (2d Cir. 2015), where it remanded because the ALJ’s finding about monthly absences lacked substantial evidentiary support and clashed with VE testimony that more frequent absences would be work‑preclusive.

D. Treatment of Medical Opinions under 20 C.F.R. § 404.1520c

1. The new “persuasiveness” framework and its application

Because Nunez filed his claim after March 27, 2017, the older “treating physician rule” does not apply. Instead, the ALJ evaluates medical opinions based on:

Supportability – how well the source explains and backs up their opinion with objective evidence; and
Consistency – how consistent the opinion is with the overall record.

The ALJ must articulate her analysis of these two factors for each “medical source’s medical opinions or prior administrative medical findings.”

Here, the ALJ:

Deemed three opinions (Drs. Blackwell, Schulte, and Ellis) “not persuasive,” and
Found only portions of Dr. Bromley’s opinion persuasive, rejecting his findings of “marked” limitations in some domains.

The majority identifies two main problems:

Consistency misapplied: the rejected opinions were, in fact, largely consistent with each other and with the treatment record (especially Dr. Schulte’s longitudinal notes). It is internally incoherent to dismiss them all for lack of consistency when they generally point in the same direction.
Supportability mischaracterized: the ALJ rejected Dr. Schulte’s opinion as “not supported” by his mental status examinations, emphasizing normal speech, intact memory, etc., and as overly reliant on Nunez’s self‑reports.

The majority counters that:

Routine mental status findings (normal speech, intact memory, etc.) do not contradict chronic anxiety and panic symptoms documented in treatment notes.
Dr. Schulte’s near‑weekly treatment notes document:
- recurrent panic attacks, especially in the mornings and on public transportation,
- shortness of breath and tachycardia, and
- difficulty completing therapeutic assignments (such as practicing subway travel).
Any intermittent improvement is part of the “cyclical nature” of mental illness, which the court—relying on Estrella—has repeatedly admonished ALJs not to misconstrue as evidence of sustained capacity for full‑time work.
Rejecting a psychiatrist’s opinion because it relies on patient self‑reports runs afoul of Rucker v. Kijakazi (recognizing psychiatric evaluation as inherently subjective) and Green‑Younger v. Barnhart (patient history is an essential diagnostic tool).

On this view, the ALJ’s articulated reasons do not satisfy § 404.1520c’s requirement of a reasoned explanation of supportability and consistency.

2. The unaddressed opinion of Dr. Miskin

The ALJ did not substantively engage with the January 2019 opinion of examining psychiatrist Dr. Miskin, who concluded that Nunez “is permanently disabled.” The majority notes that omission may violate § 404.1520c(b)’s articulation requirements but declines to decide the point because the claimant did not raise it on appeal.

Still, the fact that yet another examining source viewed Nunez as unable to work reinforces the overall evidentiary pattern supporting limitations in attendance and on‑task functioning.

E. Evaluation of Nunez’s Testimony

The ALJ discounted Nunez’s subjective complaints, drawing on:

his statements that medication “helps,” and
his ability to shop, use public transportation, and leave home on some days.

The majority finds this credibility assessment unsupported and inadequately explained for several reasons:

Mismatched citation: The cited exhibits do not show that he can take public transportation regularly or independently. For example, the consultative examiner reported that Nunez “cannot take public transportation by himself” and does not drive because of panic.
Daily activities vs. full‑time work: Occasional grocery shopping, church attendance, and limited walks on “good days” are not inconsistent with disability. The court reaffirms the principle (from Balsamo and Colgan) that “a claimant need not be an invalid” and that limited daily activities cannot substitute for a concrete showing of capacity for competitive full‑time work.
Consistency with medical opinions: Nunez’s testimony about having only 2–3 “good days” per week correlates with treating and examining opinions that he would miss multiple workdays per month—precisely the sort of absenteeism the VE deemed work‑preclusive.

Thus, the ALJ’s negative credibility finding does not rest on substantial evidence and cannot justify the rejection of physician opinions or the omission of attendance / on‑task limitations from the RFC.

F. The Dissent’s Perspective: Substantial Evidence and Judicial Deference

Judge Sullivan’s dissent highlights a fundamental tension: how aggressively may courts scrutinize the reasoning of an ALJ under the substantial‑evidence standard?

Key points of the dissent:

The standard is “even more deferential than clear error” (Brault), requiring affirmance whenever a reasonable factfinder could conclude as the ALJ did, even if the same record could support the opposite conclusion.
The record, in his view, contains abundant evidence that:
- Lexapro and therapy made Nunez’s anxiety “well‑controlled” or “more manageable” for extended periods;
- he stayed active, volunteered, applied for jobs, and performed multiple daily activities; and
- he resumed subway travel using coping techniques.
Given these mixed signals, the ALJ’s choice to credit improvement and conclude that Nunez could perform lower‑stress, unskilled work was, at a minimum, a reasonable interpretation of the evidence that should not be disturbed.
The majority, he suggests, is doing what an appellate court cannot: re‑weighing conflicting evidence and replacing the ALJ’s judgment with its own, in contravention of Veino, Genier, and Biestek.

The dissent thus frames the case less as a dispute about legal standards and more as a disagreement over the permissible range of factfinding under those standards.

IV. Precedents and Authorities Cited

1. Social Security and Administrative Review Cases

Estrella v. Berryhill, 925 F.3d 90 (2d Cir. 2019):
- Provides the five‑step framework and emphasizes that mental health symptoms are often cyclical.
- Warns ALJs against cherry‑picking moments of improvement to undermine a physician’s overall assessment.
- Relied on here to show that Dr. Schulte’s treatment notes documenting intermittent improvement do not undercut his conclusions about chronic anxiety and missed work.
McIntyre v. Colvin, 758 F.3d 146 (2d Cir. 2014):
- Another articulation of the five‑step analysis and step‑five burden.
- Cited for the proposition that step five requires the Commissioner to show that “significant numbers of jobs” exist given the claimant’s RFC.
Schillo v. Kijakazi, 31 F.4th 64 (2d Cir. 2022) and Brault v. SSA, 683 F.3d 443 (2d Cir. 2012):
- Define “substantial evidence” as an “exceedingly deferential” standard.
- The majority acknowledges this deference but finds that the ALJ’s failure to articulate any support for critical implicit RFC findings falls below even that low threshold.
- The dissent leans heavily on these cases to argue for affirmance.
Mongeur v. Heckler, 722 F.2d 1033 (2d Cir. 1983) (per curiam):
- Supports remand where the court “cannot fathom the ALJ’s rationale in relation to the evidence in the record.”
- Invoked here because the ALJ never explained how a “moderate” limitation in attendance and concentration translated into effectively “no vocationally relevant” limitation in the RFC.
Lesterhuis v. Colvin, 805 F.3d 83 (2d Cir. 2015):
- Remanded where the ALJ’s implicit finding about the number of days a claimant would miss each month lacked substantial evidence and conflicted with VE testimony.
- Directly analogous to the attendance/off‑task issue here.
Rubin v. O’Malley, 116 F.4th 145 (2d Cir. 2024):
- Interprets the post‑2017 medical‑opinion regulations.
- Clarifies that while the RFC need not mirror a particular opinion, the absence of any supportive opinion is important, and misinterpretation or mischaracterization of the medical record is reversible error.
- The majority uses Rubin to underscore that the ALJ lacked any medical opinion consistent with her effective off‑task/absence findings.
Rucker v. Kijakazi, 48 F.4th 86 (2d Cir. 2022):
- Recognizes that psychiatric assessments are necessarily based heavily on subjective reports.
- Used to reject the ALJ’s suggestion that Dr. Schulte’s reliance on Nunez’s self‑reports undermined his opinion.
Green‑Younger v. Barnhart, 335 F.3d 99 (2d Cir. 2003):
- Emphasizes that a treating source’s reliance on subjective complaints does not, by itself, diminish the value of their opinion.
Colgan v. Kijakazi, 22 F.4th 353 (2d Cir. 2022), and Balsamo v. Chater, 142 F.3d 75 (2d Cir. 1998):
- Make clear that the ability to perform limited daily activities does not equate to the ability to sustain full‑time competitive employment.
- Support the majority’s rejection of the ALJ’s heavy reliance on grocery shopping, church attendance, etc.
Cichocki v. Astrue, 729 F.3d 172 (2d Cir. 2013):
- Upheld an RFC determination where daily activities were more robust; cited in dissent to show that similar activities here could rationally support finding of non‑disability.
Genier v. Astrue, 606 F.3d 46 (2d Cir. 2010), and Veino v. Barnhart, 312 F.3d 578 (2d Cir. 2002):
- Stand for the propositions that:
  - the ALJ is the consummate factfinder for credibility determinations, and
  - genuine conflicts in the medical evidence are for the Commissioner, not the courts, to resolve.
- Heavily relied upon by the dissent.
Biestek v. Berryhill, 587 U.S. 97 (2019):
- Defines substantial evidence in Social Security cases.
- Used to emphasize, in the dissent, the very low threshold for evidentiary sufficiency.

2. Regulatory and Policy Sources

20 C.F.R. §§ 404.1520, 416.920 – Sequential evaluation process.
20 C.F.R. § 404.1520a – Evaluation of mental impairments and the four “paragraph B” functional areas.
20 C.F.R. § 404.1520c – Post‑2017 rules on evaluating medical opinion persuasiveness based on supportability and consistency.
20 C.F.R. pt. 404, subpt. P, app’x 1 – Listing of Impairments, including the detailed definition of “concentrating, persisting, or maintaining pace.”
SSR 85‑28 – Clarifies the de minimis nature of the “severity” standard at step two.

V. Complex Concepts Simplified

1. “Substantial Evidence”

“Substantial evidence” means:

more than a mere scintilla; and
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

It does not require the best or most compelling evidence; it only demands enough that a reasonable factfinder could reach the ALJ’s conclusion. When reasonable factfinders could go both ways, courts are supposed to uphold the ALJ.

However, even under this lenient standard, courts must be able to:

identify the “crucial factors” supporting the ALJ’s decision, and
see how those factors are connected to the outcome.

When the ALJ’s reasoning is opaque or internally inconsistent—especially on determinative issues like how often a claimant will be off task or absent—courts may remand, not to reweigh evidence, but to require a minimally coherent explanation.

2. Residual Functional Capacity (RFC)

RFC is the most a claimant can do on a “regular and continuing basis” (8 hours a day, 5 days a week) despite their impairments. It is expressed in terms of:

exertional limits (e.g., lifting, standing), and
non‑exertional limits (e.g., mental limitations, attendance, ability to stay on task, social interactions).

Here, the relevant non‑exertional facets are:

ability to concentrate and persist at tasks,
ability to maintain a regular work schedule and attend reliably, and
ability to tolerate public interaction.

An RFC must be consistent with:

the ALJ’s findings at step three about functional limitations; and
any VE testimony about how those limitations translate into employability.

3. “Moderate” and “Marked” Limitations

In SSA practice, clinicians frequently rate limitations on a scale (none, mild, moderate, marked, extreme), sometimes with suggested quantitative meanings:

Moderate: interferes up to about one‑third of the workday.
Marked: greater interference; often incompatible with competitive full‑time work depending on context.

These terms are not self‑executing. ALJs must still translate them into concrete vocational limitations—such as:

how many minutes per hour the person may be off task; or
how many days per month they are likely to miss.

Nunez underscores that where the VE provides exact thresholds, and the ALJ finds “moderate” limitations in relevant domains, the ALJ must either:

reconcile those terms with the VE’s numerical thresholds, or
explain why, despite a moderate limitation, the claimant can meet attendance/on‑task requirements.

4. Vocational Expert Testimony on Time Off Task and Absenteeism

VEs are specialists who testify about:

the kinds of jobs in the national economy, and
how specific limitations affect employability.

In unskilled jobs (like assembler, packager), employers typically have little tolerance for:

being off task more than 10% of the day, or
missing more than one day of work per month.

That is why in Nunez, once the VE’s standards were established, the ALJ’s failure to make any explicit attendance or on‑task findings—and the lack of supporting medical evidence for the implicit, favorable assumptions—became legally critical.

5. Evaluating Medical Opinions Under 20 C.F.R. § 404.1520c

Under the post‑2017 regulations:

There is no automatic “controlling weight” for treating physicians.
Instead, ALJs must:
- evaluate each opinion’s supportability (how well it is explained and backed up by clinical findings), and
- assess its consistency with the record as a whole.
ALJs must explain how they applied those two factors for each medical source.

Nunez illustrates that:

It is permissible in theory to find all opinions unpersuasive and craft an RFC from the raw evidence, but
It is not permissible to:
- mischaracterize treatment notes,
- treat consistent opinions as “inconsistent,” or
- dismiss opinions for relying on subjective reports in mental‑health contexts.

VI. Impact and Practical Implications

A. Doctrinal Impact

Nunez reinforces and refines several important principles in Social Security adjudication within the Second Circuit:

Alignment of Step‑Three Findings and RFC:
- When an ALJ finds a “moderate” limitation in the “concentrate, persist, maintain pace” domain—which expressly includes regular attendance and staying on task—that finding must be meaningfully reflected in the RFC or accompanied by a reasoned explanation of why no additional vocational limitation is necessary.
Attendance and Time‑on‑Task Findings Must Be Grounded in Evidence:
- Where VE testimony sets quantitative thresholds for acceptable off‑task behavior and absences, an ALJ cannot simply assume the claimant meets those thresholds without:
  - supporting medical or other evidence, and
  - a clear explanation.
- Implicit RFC findings of “no significant attendance/time‑on‑task problem” must be just as evidence‑based as explicit ones.
Consistency and Supportability Under § 404.1520c Are Substantive Requirements:
- Courts will scrutinize whether the ALJ’s rationale for deeming opinions “not persuasive” genuinely reflects:
  - the record’s overall consistency, and
  - the actual support provided by clinical observations and longitudinal treatment.
- Labeling multiple aligned opinions as “inconsistent” with the record is not sustainable where, in fact, they form a coherent narrative.
Mental Health Evidence Must Not Be Cherry‑Picked:
- Nunez continues Estrella’s warning against:
  - overemphasizing isolated reports of improvement, and
  - discounting mental‑health opinions for relying on patient self‑reports.
- In mental health cases, cyclical improvement and deterioration are to be expected.
Subjective Testimony and Limited Daily Activities:
- The decision reiterates that:
  - a claimant’s ability to perform limited daily tasks on “good days” does not invalidate consistent testimony and medical evidence of disabling limitations, and
  - ALJs must avoid cherry‑picking favorable statements from function reports while ignoring context (e.g., panic on buses, leaving church early).

B. Practical Guidance for Stakeholders

1. For claimants and their representatives

Quantify attendance and off‑task limitations:
- Encourage treating and examining sources to specify:
  - expected days absent per month,
  - expected frequency/duration of panic attacks or decompensation episodes, and
  - estimated percentage of workday off task.
- VE testimony often treats such numbers as dispositive for unskilled work.
Tie “moderate” limitations to vocational consequences:
- Argue explicitly how a “moderate” limitation, when defined as up to one‑third of the workday, is incompatible with VE thresholds (e.g., 10% off task).
Develop longitudinal mental‑health evidence:
- Ensure that treatment notes tell a coherent story of symptoms over time, including:
  - good days, bad days, and missed appointments,
  - failed attempts at exposure or coping assignments (e.g., practicing subway travel).
Highlight consistency and supportability:
- On appeal, emphasize where multiple opinions and treatment records align, undermining any ALJ claim that they are “inconsistent.”

2. For ALJs and the SSA

Bridge RFC findings to record evidence:
- Explicitly address:
  - how mental‑health limitations affect attendance and staying on task, and
  - how those findings square with VE testimony.
- If rejecting a medical source’s opinion about absences, explain what evidence supports a more favorable attendance assumption.
Avoid cherry‑picking:
- Discuss both:
  - evidence of improvement and daily activities, and
  - evidence of ongoing limitations, setbacks, and missed appointments.
Comply with § 404.1520c articulation duties:
- Address supportability and consistency for each medical source, including consultative examiners and one‑time examiners like Dr. Miskin.

3. For courts

Balance deference with meaningful review:
- Nunez shows the Second Circuit willing to:
  - respect the substantial‑evidence standard in principle, but
  - remand where crucial vocational findings (attendance, time on task) lack articulated support.
- The decision illustrates how courts can avoid re‑weighing evidence while still insisting on a rational, evidence‑based bridge from findings to conclusions.

VII. Conclusion

Nunez v. Commissioner of Social Security is a significant disability decision in the Second Circuit, especially for mental‑health‑based claims. Its central contribution is to insist that when VE testimony establishes precise thresholds for allowable time off task and absences, and when the ALJ acknowledges moderate limitations in the regulatory domain that encompasses attendance and sustained attention, an RFC that effectively assumes no vocationally significant attendance/on‑task limitations must be:

affirmatively supported by the medical and testimonial record, and
explained with sufficient clarity to permit judicial review.

The decision reinforces that:

the new “persuasiveness” regime for medical opinions does not license ALJs to reject every opinion without proposing an evidence‑anchored alternative;
mental health evidence must be evaluated with particular sensitivity to cyclical symptom patterns and the necessarily subjective nature of psychiatric assessment; and
limited daily activities cannot, without more, rebut consistent medical and testimonial evidence of work‑preclusive limitations, particularly in attendance and concentration.

While the dissent warns against eroding the substantial‑evidence standard, the majority’s approach reflects an insistence that deference not be conflated with abdication. Nunez thus stands as an important guidepost for claimants, ALJs, and courts navigating the complex intersection of mental health, vocational capacity, and administrative adjudication.

Nunez v. Commissioner: Substantial Evidence and RFC Findings on Mental Health–Related Attendance and Time Off Task