Case Breakdown: Nunez v. Commissioner of Social Security

When an ALJ acknowledges “moderate limitations” in areas like attention and attendance, but then crafts an RFC with no actual restrictions on staying on task or consistent attendance, the Second Circuit isn’t buying it. This decision is a must-read for anyone handling mental-health disability claims.

⚖️ The Big Picture

In Nunez, the Second Circuit vacated the denial of benefits because the ALJ’s RFC failed to translate recognized limitations into meaningful functional restrictions. Specifically, the Court found that:

• The ALJ found moderate limitations in concentration, persistence, and pace, yet

• The RFC contained no on-task or attendance restrictions, despite uncontroverted VE testimony that such issues would preclude competitive employment.

  
  

This disconnect was fatal to the ALJ’s decision.

🧠 Claimant’s Documented Limitations

The record showed the claimant had longstanding mental-health conditions:

Key Clinical Findings

• Panic disorder, agoraphobia, and generalized anxiety

• Frequent morning panic episodes

• Shortness of breath and tachycardia on public transit

• Medication side effects causing drowsiness

• Fluctuating functional days (only 2–3 good days per week)

  
  

Consensus on Limitations

Every treating and examining source agreed on at least moderate limitations in:

• Sustaining an ordinary routine

• Staying on task

• Maintaining regular attendance

  
  

And three medical opinions specifically stated the claimant would miss 2–3+ days of work per month.

🛑 The ALJ’s RFC Deficiency

Despite this robust record, the RFC:

✔ Allowed simple, goal-oriented work✔ Limited public interaction✘ Said nothing about:

• Being off task

• Missing days of work

• Needing more breaks due to symptom exacerbation

  
  

Not even indirectly.

The Court’s Core Message

You can’t find “moderate limitations” at Step 3/4 and then act like they don’t matter when defining the RFC.

Because the VE testified an individual who is:

• Off task > 10% of the day, or

• Absent > 1 day/month

  
  

was unemployable, and the ALJ didn’t account for either, the RFC lacked substantial evidence.

💥 What the Second Circuit Held

The Court vacated and remanded because:

❌ The RFC Was Unsupported by Substantial Evidence

• The ALJ ignored critical functional impacts tied to moderate limitations.

  
  

❌ Improper Rejection of Medical Opinion

• The ALJ dismissed consistent evidence without specific, legitimate reasons.

  
  

❌ Improper Discounting of Testimony

• Especially in mental-health cases where self-reporting is central to understanding symptom severity.

  
  

❌ Failure at Step 5

• The government couldn’t meet its burden because the hypothetical posed to the VE didn’t reflect actual limitations.

  
  

🧩 Practitioner Takeaways

This case reinforces several key disability practice principles:

✔ Moderate Limitations Must Translate to Functional Restrictions

ALJs can’t treat “moderate” as synonymous with “insignificant.”

✔ Attendance & On-Task Issues Are Essential

Especially when a vocational expert emphasizes them.

✔ Consistency Across Opinions Matters

Where all sources point to absences or off-task behavior, boilerplate rejection won’t cut it.

✔ Daily Activities ≠ Work Capacity

The Court cautioned against overvaluing “good day” anecdotes while ignoring the overall pattern — a point closely aligned with SSR 96-8p’s guidance on RFC analysis.

💬 Final Thought

Nunez sends a clear directive: when the record raises legitimate questions about a claimant’s ability to be present and productive at work, the RFC must address those questions directly. For mental-health claims in particular, functional capacity isn’t about whether someone can run errands on a good day—it’s about sustaining full-time employment consistently.

Got any questions? Schedule a consultation with us. I’m here to help. It’s a lot to take in, but we’ll get through it together. After all, navigating these waters is always easier when you’ve got someone to chat with