See Kimberly R. v. Comm'r of Soc. Sec., No. 21-CV-00079-LJV, 2022 WL 17584196, at *2 (W.D.N.Y. Dec. 12, 2022) (remand was required because “the ALJ did not cite any opinions or medical evidence to support that specific limitation, and the ALJ appears to have fashioned it from whole cloth”); Laura A. v. Comm'r of Soc. Sec., No. 20-CV-610, 2022 WL 464227, at *4 (W.D.N.Y. Feb. 15, 2022) (collecting cases); Tara W v. Comm'r of Soc. Sec., No. 20-CV-00695-MJR, 2021 WL 4316824, at *3 (W.D.N.Y. Sept. 23, 2021); Wouters v. Comm'r of Soc. Sec., 19-CV-610, 2020 U.S. Dist. LEXIS 80565 (W.D.N.Y. May 7, 2020) (finding that the ALJ's conclusion that the claimant would be off-task five percent of the time was not supported by substantial evidence because the ALJ pointed to no evidence indicating why plaintiff would be off-task for this specific percentage of time); Austin v. Comm'r of Soc. Sec., 19-CV-638, 2020 U.S. Dist. LEXIS 172633 (W.D.N.Y. Sept. 21,2020) (the RFC determination that plaintiff would be “off task up to three percent of the workday due to symptom exacerbations” was not supported by substantial evidence where “nowhere [in the record] is there an opinion or testimony providing that [plaintiff] would be off-task up to three percent of the workday due to her symptoms ... [and] this number came solely from the ALJ.”)
Sec., 2021 WL 2182716, at *3-4 (W.D.N.Y. May 28, 2021) (remanding where the ALJ included a 10 percent off-task limitation in the RFC finding, but neither the ALJ nor the Commissioner could point to anything in the record that suggested how much time plaintiff would be off-task in the workplace); Michelle A. v. Saul, 2020 WL 7223235, at *3-4 (W.D.N.Y. Dec. 8, 2020) (ALJ's finding that plaintiff would be off-task five percent of the work day was not supported by substantial evidence where ALJ cited “no evidence in the record, medical or otherwise, suggesting that plaintiff would be off-task for this specific percentage of time”) (citing Wouters v. Comm'r of Soc. Sec., 2020 WL 2213896, at *2 (W.D.N.Y. May 7, 2020) (remanding where the ALJ failed to point to any evidence in the record that suggested why plaintiff would be off-task for the five percent of the time included in the RFC finding)); Austin v. Comm'r of Soc. Sec., 2020 WL 5629030, at *7 (W.D.N.Y. Sept. 21, 2020) (ALJ's finding that plaintiff would be “off task up to three percent of the workday due to symptom exacerbations” was not supported by substantial evidence where “nowhere [in the record] is there an opinion or testimony providing that [plaintiff] would be off-task up to three percent of the day ... [and] this number came solely from the ALJ.”).
If an ALJ believes that an off-task time limitation is necessary, he or she must refer to a medical opinion or other specific evidence in the record that supports such a limitation. SeeWouters, 2020 WL 2213896, at *1 (W.D.N.Y. May 7, 2020) (finding that the ALJ's conclusion that the claimant would be off task 5% of the time was not supported by substantial evidence because the ALJ pointed to no evidence indicating why plaintiff would be off task for this specific percentage of time); Austin v. Comm'r of Soc. Sec., No. 19-CV-638 (JLS), 2020 WL 5629030, at *1 (W.D.N.Y. Sept. 21, 2020) (the RFC determination that plaintiff would be “off task up to three percent of the workday due to symptom exacerbations” was not supported by substantial evidence where “nowhere [in the record] is there an opinion or testimony providing that [plaintiff] would be off-task up to three percent of the workday due to her symptoms . . . [and] this number came solely from the ALJ.”); Elder, 2019 WL 6320355, at *1 (remand required where nothing in the record supported the ALJ's specific mental RFC determination that [claimant] would be off task for no more than “five minutes . . . per hour” and noting that “if the ALJ wishes to address the time that [plaintiff] can stay on task, she should recontact [plaintiff's] physicians to get their opinions on that issue.”)
Case law from this District reflects that if an ALJ believes that an off-task time limitation is necessary, she must refer to a medical opinion or other specific evidence in the record that supports such a limitation. See Wouters v. Comm'r of Soc. Sec., 19-CV-610, 2020 U.S. Dist. LEXIS 80565 (W.D.N.Y. May 7, 2020) (finding that the ALJ's conclusion that the claimant would be off-task 5% of the time was not supported by substantial evidence because the ALJ pointed to no evidence indicating why plaintiff would be off-task for this specific percentage of time); Austin v. Comm'r of Soc. Sec., 19-CV-638, 2020 U.S. Dist. LEXIS 172633 (W.D.N.Y. Sept. 21,2020) (the RFC determination that plaintiff would be “off task up to three percent of the workday due to symptom exacerbations” was not supported by substantial evidence where “nowhere [in the record] is there an opinion or testimony providing that [plaintiff] would be off-task up to three percent of the workday due to her symptoms... [and] this number came solely from the ALJ.”)
If an ALJ believes that an off-task time limitation is necessary, he or she must refer to a medical opinion or other specific evidence in the record that supports such a limitation. See Wouters v. Comm'r of Soc. Sec., 19-CV-610, 2020 U.S. Dist. LEXIS 80565 (WDNY May 7, 2020) (finding that the ALJ's conclusion that the claimant would be off-task five percent of the time was not supported by substantial evidence because the ALJ pointed to no evidence indicating why plaintiff would be off-task for this specific percentage of time); Austin v. Comm'r of Soc. Sec., 19-CV-638, 2020 U.S. Dist. LEXIS 172633 (WDNY Sept. 21, 2020) (the RFC determination that plaintiff would be “off task up to three percent of the workday due to symptom exacerbations” was not supported by substantial evidence where “nowhere [in the record] is there an opinion or testimony providing that [plaintiff] would be off-task up to three percent of the workday due to her symptoms ... [and] this number came solely from the ALJ.”); Elder v. Comm'r of Soc. Sec., 18-CV-1196, 2019 U.S. Dist. LEXIS 205159 (WDNY Nov. 26, 2019) (remand required where nothing in the record supported the ALJ's specific mental RFC determination that [claimant] would be off task for no more than “five minutes ... per hour” and noting that “if the ALJ wishes to address the time that [plaintiff] can stay on task, she should recontact [plaintiffs] physicians to get their opinions on that issue.”). The ALJ failed to explain where that specific percentage of 5% came from, or
Case law from this District reflects that if an ALJ believes that an off-task time limitation is necessary, he or she must refer to a medical opinion or other specific evidence in the record that supports such a limitation. See Wouters v. Comm'r of Soc. Sec., 19-CV-610, 2020 U.S. Dist. LEXIS 80565 (WDNY May 7, 2020) (finding that the ALJ's conclusion that the claimant would be off-task five percent of the time was not supported by substantial evidence because the ALJ pointed to no evidence indicating why plaintiff would be off-task for this specific percentage of time); Austin v. Comm'r of Soc. Sec., 19-CV-638, 2020 U.S. Dist. LEXIS 172633 (WDNY Sept. 21, 2020) (the RFC determination that plaintiff would be "off task up to three percent of the workday due to symptom exacerbations" was not supported by substantial evidence where "nowhere [in the record] is there an opinion or testimony providing that [plaintiff] would be off-task up to three percent of the workday due to her symptoms...[and] this number came solely from the ALJ."); Elder v. Comm'r of Soc. Sec., 18-CV-1196, 2019 U.S. Dist. LEXIS 205159 (WDNY Nov. 26, 2019) (remand required where nothing in the record supported the ALJ's specific mental RFC determination that [claimant] would be off task for no more than "five minutes...per hour" and noting that "if the ALJ wishes to address the time that [plaintiff] can stay on task, she should recontact [plaintiff's] physicians to get their opinions on that issue.") The need for more specific evidence as to the amount of time plaintiff would be off-task is especially relevant here, since the ALJ gave diminished weight to all medical opinions