The Second Circuit Court of Appeals has overturned a lower court’s decision that upheld the Social Security Administration’s (SSA) denial of disability benefits to Govanni R. Nunez. In a significant ruling, the appellate court found that the Administrative Law Judge (ALJ) failed to support her Residual Functional Capacity (RFC) determination with “substantial evidence,” particularly regarding Nunez’s ability to maintain consistent attendance and focus at work.
The case involves Nunez’s application for both Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI), stemming from severe anxiety and recurring panic attacks that began in 2013. His condition ultimately led to his termination from his job as a security guard in 2018 due to frequent attacks on the job and drowsiness caused by medication.
The Core Conflict: Attendance vs. RFC Finding
The crux of the appeal centered on Step Four of the SSA’s five-step disability evaluation—determining the claimant’s Residual Functional Capacity (RFC). The RFC assessment defines the maximum a claimant can still do despite their limitations.
During Nunez’s administrative hearing, the vocational expert (VE) provided uncontroverted testimony setting strict parameters for maintaining unskilled employment: the individual could not be off task for more than 10% of the workday and could miss no more than one day of work per month.
However, the ALJ concluded that Nunez had only a “moderate limitation” concerning the ability to “concentrate, persist, or maintain pace.” Crucially, the Second Circuit noted that the regulatory definition of this limitation directly encompasses the ability to maintain regular work attendance and work a full day without excessive rest periods.
The appellate court observed a glaring disconnect: while the ALJ acknowledged a moderate limitation in concentration (which includes attendance), the resulting RFC determination failed to impose any corresponding limitations on Nunez’s ability to sustain an ordinary work routine, such as regular attendance or staying on task.
“On this record, we hold that the ALJ’s RFC determination was not supported by substantial evidence,” the court stated, leading to the vacating of the district court’s judgment and a remand to the SSA.
Medical Opinions Overlooked or Misinterpreted
The appellate court also heavily criticized the ALJ’s evaluation of the medical evidence. Nunez presented five medical opinions, four of which the ALJ deemed unpersuasive, except for a partial assessment from Dr. Bromley, an SSA consultative psychiatrist.
The rejected opinions—from his treating psychiatrist (Dr. Schulte), a DDS consultant (Dr. Blackwell), and an examining psychologist (Dr. Ellis)—were, according to the Circuit Court, largely consistent with each other and pointed toward significant limitations in sustaining an ordinary routine and regular attendance. Dr. Schulte, for instance, noted Nunez would miss work two to three times per month, while Dr. Ellis projected absences of more than three days monthly.
The ALJ rejected Dr. Schulte’s opinion, arguing it was unsupported because his mental status exams showed Nunez was “mentally stable” (citing normal speech and memory), yet he still opined Nunez was disabled. The appellate court found this reasoning flawed. It pointed out that chronic mental health conditions, like Nunez’s panic disorder, are cyclical, and sporadic improvements noted in brief exams do not negate the overall severity documented over time.
Furthermore, the court emphasized that rejecting a medical opinion based on its reliance on the claimant’s self-reported statements—which the ALJ did for Dr. Schulte—is often improper in mental health cases, as subjective reports are essential diagnostic tools.
Testimony Discounted Without Proper Basis
The court also addressed the ALJ’s discounting of Nunez’s own testimony. The ALJ seemed to discredit Nunez based on his admission that he could sometimes shop or use public transit. The Circuit Court countered that this selective interpretation amounted to “unjustifiable cherry-picking.”
The opinion noted that Nunez described having only two or three “good days” per week for necessary errands. This pattern, the court reasoned, actually supports, rather than undermines, the notion that he would miss work on the remaining “bad days”—a scenario incompatible with the VE’s one-day-per-month absence limit for continued employment.
Conclusion and Remand Instructions
Because the ALJ’s RFC determination (Step Four) was not supported by evidence that Nunez could meet the VE’s threshold for attendance (10% off-task time, one day absent per month), the final determination of non-disability at Step Five could not stand. The burden was on the Commissioner to prove jobs existed for Nunez *given his actual RFC*, a burden the court found unmet due to the inadequately developed record.
The case was remanded to the Commissioner for further development of the record and a fresh evaluation of Nunez’s RFC, specifically addressing his capacity for regular attendance and sustained focus in light of the medical evidence.
Judge Sullivan filed a dissent, arguing the majority applied too little deference to the ALJ, whose findings were supported by substantial evidence reflecting Nunez’s overall improvements with treatment.