Brenda Finney v. Carolyn Colvin

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-2141

BRENDA M. FINNEY,

Plaintiff − Appellant,

v.

CAROLYN W. COLVIN, Acting Commissioner of Social Security,

Defendant − Appellee.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Terrence W. Boyle,
District Judge. (1:11−cv−00494−TWB−JLW)

Argued: October 28, 2015 Decided: January 26, 2016

Before TRAXLER, Chief Judge, KING, Circuit Judge, and DAVIS,
Senior Circuit Judge.

Affirmed by unpublished per curiam opinion. Judge King wrote a
dissenting opinion.

ARGUED: Jason Lee Wilson, FOLEY & WILSON PLLC, Greensboro, North
Carolina, for Appellant. Candace H. Lawrence, SOCIAL SECURITY
ADMINISTRATION, Boston, Massachusetts, for Appellee. ON BRIEF:
Ripley Rand, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Brenda M. Finney brought suit against Carolyn W. Colvin,

Acting Commissioner of the Social Security Administration, to

challenge the determination that Finney was not disabled from

March 14, 2006 through December 14, 2010, for purposes of the

Social Security Act (“SSA”). In this appeal, Finney contends

that the district court erred in denying her request for a

remand to the administrative law judge (“ALJ”) in light of new

evidence, pursuant to sentence six of 42 U.S.C. § 405(g). For

the reasons that follow, we affirm the judgment.

I.

A.

On July 10, 2008, at the age of fifty-two, Finney first

complained of right knee pain to her primary care physician,

Terry G. Daniel, M.D. Although her knee popped when she walked

and hurt when she went up and down stairs, Finney had not taken

any medication for the pain. Dr. Daniel indicated that Finney

“most likely ha[d] [a] meniscal injury,” and he noted that, if

the condition did not improve, Finney would “need[] [an] MRI to

rule out [a] torn meniscus.” Tr. 242. 1

1
“Tr.” refers to the administrative record, while “J.A.”
refers to the parties’ Joint Appendix.

2
 In April 2009, Finney again notified Dr. Daniel that she

was experiencing right knee pain along with intermittent

swelling and popping. An x-ray from July 2008 had revealed no

arthritis, and the doctor concluded that Finney may have torn

cartilage. He also noted that “[s]he has no insurance and will

call me when she is ready for [an] MRI to look for torn

cartilage.” Tr. 235.

In July 2009, Dorothy Linster, M.D., completed a physical

residual functional capacity (“RFC”) assessment of Finney. Dr.

Linster considered Finney’s mental and physical impairments,

including her right knee pain, and she determined that Finney

was capable of occasionally lifting fifty pounds, frequently

lifting twenty-five pounds, standing or walking for about six

hours per day, sitting for approximately six hours per day, and

unrestrictedly pushing or pulling items, including operating

hand and foot controls.

Meanwhile, Finney, who had previously worked as a sewing

machine operator, had protectively applied for Title II

disability insurance benefits and Title XVI supplemental

security income on April 13, 2009, based on her various medical

impairments including her right knee pain. Her date last

insured was June 30, 2010, and she alleged a disability onset

date of March 14, 2006. After conducting a hearing, the ALJ

3
determined that Finney was not disabled from March 14, 2006

through December 14, 2010 (“the 2010 decision”).

In reaching this decision, the ALJ followed the standard

five-step sequential evaluation process for making disability

determinations. See 20 C.F.R. §§ 404.1520(a), 416.920(a)(4).

The ALJ noted that Finney satisfied the first requirement for

disability benefits, as she had not engaged in substantial

gainful activity since prior to March 14, 2006. At step two,

the ALJ determined that Finney’s “residual right knee pain

secondary to a possible meniscal injury” was severe, as were

several of her other impairments. Tr. 16. The ALJ concluded at

step three that Finney did not have an impairment that met or

equaled one of the listed impairments in the SSA.

Before reaching step four, the ALJ assessed Finney’s RFC

and concluded that Finney was able to perform a limited range of

medium work. Consequently, at step four, the ALJ determined

that Finney was capable of performing her past relevant work as

a sewing machine operator, which required only light exertion.

The ALJ decided, in the alternative, that Finney was capable of

performing other jobs existing in significant numbers in the

national economy. Accordingly, the ALJ concluded that Finney

was not disabled during the relevant period. The Appeals

Council denied Finney’s subsequent request for review on April

29, 2011, and the decision became final.

4
 B.

1.

After the 2010 decision, Finney continued to feel pain in

her right knee. On April 1, 2011, Joseph Guarino, M.D.,

examined Finney’s knee and noted that Finney “has had problems

with her knee for a period of three years. She has had pain and

stiffness in the knee as well as swelling.” J.A. 143. He also

observed that Finney “walks with an antalgic gait” and that “she

is tender over the medial joint line of the right knee.” J.A.

144–45. Dr. Guarino determined that Finney’s impairments did

not limit her ability to sit but that she would have difficulty

with prolonged periods of standing and moving. He also

indicated that Finney would be able to occasionally lift up to

twenty-five pounds and frequently lift up to ten pounds.

2.

On September 1, 2011, Finney finally received an MRI of her

right knee. Finney’s scan was based on “posteromedial right

knee pain over the past 2 years.” J.A. 147. The MRI report

describes, among other things, an “[i]ndistinct abnormal signal

in the posterior horn of the medial meniscus [that] extends to

the inferior meniscal surface,” which, the report notes, was

“suspicious for a small grade 3 tear.” Id.

3.

5
 Rodney Mortenson, M.D., an orthopedic specialist, examined

Finney’s right knee on September 15, 2011, and continued to

treat Finney through August 3, 2012. During the initial

examination, Dr. Mortenson noted that Finney had been

experiencing right knee pain for years but that it had been

“manageable until 2 weeks ago when suddenly the pain increased

and now is localized along the medial joint line.” J.A. 181.

The doctor’s examination revealed “[a]cute tenderness along the

mid third and posterior third of the medial joint line,” as well

as pain along the medial joint line upon rotation of Finney’s

right hip. J.A. 182. Accordingly, Dr. Mortenson concluded that

Finney had “osteoarthritis of [the] right knee.” Id. He also

analyzed the recent MRI report and determined that it “shows

what can be interpreted as a grade 3 in distinct [sic] tear of

the posterior horn medial meniscus.” Id. Although the MRI was

“inconclusive,” the doctor reported that, “clinically[,]

[Finney] has a tear of the meniscus.” Id.

Dr. Mortenson performed an arthroscopic exploration of

Finney’s right knee on October 10, 2011. During this procedure,

he confirmed that Finney indeed had a “tear of the posterior

horn of the medial meniscus[,] which was nondisplaced, but

frayed and ragged.” J.A. 177. He debrided and smoothed the

medial meniscus with a shaver and removed all debris.

6
 After the debridement procedure, Dr. Mortenson continued to

monitor Finney’s right knee condition, which “finally calmed

down” on June 25, 2012. J.A. 159. At this point, however,

Finney reported that she had begun to experience pain in her

left knee. Finney underwent an arthroscopic examination and

debridement of her left knee, just as she had received on the

right, and Dr. Mortenson confirmed that Finney had also torn the

posterior horn of the medial meniscus in her left knee. Dr.

Mortenson’s treatment notes conclude with Finney’s follow-up

appointment on August 3, 2012, when he continued to report that

Finney had osteoarthritis of the right knee.

C.

After the ALJ found that Finney was not disabled from March

14, 2006 through December 14, 2010, Finney protectively filed a

second application for Title XVI supplemental security income on

December 22, 2010, alleging a disability onset date of December

15, 2010, the day after the 2010 decision. Finney again based

her application on many mental and physical impairments,

including the pain in both of her knees. A second ALJ

ultimately issued a decision fully favorable to Finney, finding

that Finney was disabled under the SSA from December 15, 2010

through February 27, 2013 (“the 2013 decision”).

In reaching this decision, the ALJ reviewed Finney’s

medical records, including the three pieces of medical evidence

7
from 2011 and 2012: (1) Dr. Guarino’s report, (2) the MRI

report, and (3) Dr. Mortenson’s treatment notes. Following the

standard five-step process, the ALJ determined that Finney had

several severe impairments, including “osteoarthritis of the

bilateral knees,” J.A. 116, and she found, unlike the prior ALJ,

that Finney had the RFC to perform no more than light work, with

some limitations. At step four, the ALJ determined that Finney

was unable to perform any past relevant work. The ALJ based

this conclusion on somewhat perplexing reasoning: after finding

that Finney was able to perform a partial range of light work,

the ALJ noted that Finney’s testimony indicated that her past

work as a sewing machine operator was actually sedentary work,

and the ALJ then concluded that, because Finney’s RFC “limits

her to less than the full range of unskilled, sedentary work,

the undersigned finds that the claimant is unable to perform her

past relevant work.” 2 J.A. 119 (emphasis added).

The ALJ thus proceeded to step five to assess whether

Finney could perform other work that exists in the national

economy. At this step, the ALJ applied Rule 202.06 of the

Medical-Vocational Grid Rules, which directed a finding of

2
This apparent error is further underscored by the ALJ’s
prior statement in the introduction of the 2013 decision that
“the undersigned finds that the claimant’s physical impairments
limit her to the performance of work at the light exertional
level.” J.A. 114 (emphasis added).

8
“disabled” based on Finney’s age, education, work experience,

and RFC. J.A. 120. Accordingly, the ALJ concluded that Finney

had been disabled since December 15, 2010, the onset date

alleged in Finney’s second application.

D.

While Finney was pursuing her renewed administrative claim,

she filed this suit against the Acting Commissioner of the

Social Security Administration in federal district court on June

21, 2011, to challenge the 2010 decision. Finney later filed a

motion to remand to the ALJ for consideration of new evidence,

attaching the three pieces of supplemental medical evidence from

2011 and 2012 as exhibits and submitting a copy of the 2013

decision. The district court resolved cross-motions for

judgment on the pleadings in the Commissioner’s favor, affirmed

the 2010 decision as to Finney’s disability status from 2006 to

2010, and dismissed Finney’s motion to remand as moot. The

district court denied Finney’s subsequent Rule 59(e) motion to

alter or amend the judgment, and Finney filed a timely notice of

appeal.

II.

In this appeal, Finney asserts error in the district

court’s denial of her request for a remand of the 2010 decision

9
in light of the three supplemental pieces of medical evidence

from 2011 and 2012.

A.

Sentence six of 42 U.S.C. § 405(g) provides that a court

“may at any time order additional evidence to be taken before

the Commissioner of Social Security, but only upon a showing

that there is new evidence which is material and that there is

good cause for the failure to incorporate such evidence into the

record in a prior proceeding.” Accordingly, we have recognized

four requirements that a claimant seeking a sentence six remand

must satisfy. First, the claimant must demonstrate that the new

evidence is relevant to the determination of disability at the

time the claimant first applied for benefits and is not merely

cumulative of evidence already on the record. Borders v.

Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing Mitchell v.

Schweiker, 699 F.2d 185, 188 (4th Cir. 1983)). Second, the

claimant must establish that the evidence is material, in that

the Commissioner’s decision “‘might reasonably have been

different’ had the new evidence been before her.” Id. (quoting

King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)). Third,

the claimant must show that good cause exists for her failure to

present the evidence earlier. Id. And fourth, the claimant

must present to the reviewing court “‘at least a general showing

of the nature’ of the new evidence.” Id. (quoting King, 599

10
F.2d at 599). In assessing whether the claimant has made these

requisite showings, however, “[t]his Court does not find facts

or try the case de novo.” King, 599 F.2d at 599 (citing Vitek

v. Finch, 438 F.2d 1157 (4th Cir. 1971)).

For the reasons stated below, we hold that Finney has

failed to show that the supplemental evidence is material and

has therefore failed to establish that remand to the ALJ is

warranted. Accordingly, we affirm the judgment, and we need not

consider whether Finney satisfied the other requirements for

remand.

B.

The materiality prong requires a claimant to show that the

Commissioner’s decision “‘might reasonably have been different’

had the new evidence been before her.” Borders, 777 F.2d at 955

(quoting King, 599 F.2d at 599); see also Wilkins v. Sec’y,

Dep’t of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991)

(“Evidence is material if there is a reasonable possibility that

the new evidence would have changed the outcome.”). In this

case, despite Finney’s insistence that the new evidence creates

a “reasonable possibility that the first ALJ would have found

Finney’s RFC limited to a restricted range of light work,”

Finney fails to explain how this shift in the ALJ’s RFC

assessment would change the ultimate outcome of the ALJ’s

decision. See Appellant’s Br. 25–27. As Finney bears the

11
burden of demonstrating that the supplemental evidence is

material, she has not made an adequate showing to merit a

sentence six remand.

To be sure, if the first ALJ had been able to consider

Finney’s additional medical evidence—assuming arguendo that this

evidence is new and relevant to the time that Finney first

applied for benefits—the ALJ would likely have assessed Finney’s

RFC differently. That is, the new evidence would likely have

led the first ALJ to determine that Finney could have performed

only a limited range of light work. Based on the medical

evidence available at the time, the first ALJ found that Finney

was capable of performing medium work, which involves lifting up

to fifty pounds at a time and frequently lifting twenty-five

pounds, see 20 C.F.R. § 404.1567(c), but Dr. Guarino’s 2011

examination notes suggest that Finney’s physical impairments

were more functionally limiting than the first ALJ’s

determination had reflected. In particular, Dr. Guarino

indicated that Finney would be able to occasionally lift no more

than twenty to twenty-five pounds and frequently lift up to ten

pounds. These findings closely track the standard physical

exertion requirements for light work, not medium work. See

§ 404.1567(b). Dr. Guarino also reported that Finney had no

limitation with respect to sitting but that she would have

difficulty standing and moving for prolonged periods.

12
Accordingly, if the first ALJ could have reviewed the new

medical evidence—provided that this evidence is relevant to the

time period at issue—she likely would have found that Finney was

capable of performing no more than a limited range of light

work. Indeed, the second ALJ made this determination in the

2013 decision with respect to the 2010 to 2013 time period in

light of Finney’s 2011 and 2012 medical records.

Nevertheless, we are persuaded that, upon considering the

new evidence, the first ALJ would most assuredly have reached

the same outcome as she did originally, concluding that Finney

was capable of performing her past relevant work and that she

was therefore not disabled from 2006 to 2010. Based on the

testimony of a vocational expert, the first ALJ recognized that

Finney’s previous position as a sewing machine operator required

only light exertion, and no new medical evidence produced after

the 2010 decision suggests otherwise. 3 Thus, even if the first

3 In fact, based on Finney’s testimony, the second ALJ
determined that Finney’s past work was actually sedentary, which
requires less exertion than light work. If the first ALJ were
to find the same on remand, she would be even more likely to
conclude that Finney—who likely had an RFC to perform a limited
range of light work, according to the new medical evidence—could
have performed her past sedentary work. See § 404.1567(b) (“If
someone can do light work, we determine that he or she can also
do sedentary work, unless there are additional limiting factors
such as loss of fine dexterity or inability to sit for long
periods of time.”); see also J.A. 145 (reporting that Finney had
no such limitations).

13
ALJ were to determine that Finney could perform no more than a

limited range of light work, the ALJ would surely still have

concluded that Finney could perform the light work required of a

sewing machine operator. Nothing in the record indicates that

Finney’s particular functional limitations prevented her from

performing this work. Accordingly, Finney has not shown that

the additional medical evidence is material, as she has not

demonstrated that the 2010 decision might reasonably have been

different had the evidence been before that ALJ.

Finally, Finney’s argument that the new medical evidence

might have led the first ALJ to find her disabled under Rule

202.06 of the Medical-Vocational Grid Rules is similarly

unavailing. When an ALJ reaches the final step of the standard

five-step analysis, after determining that a claimant cannot

perform past relevant work, the ALJ must consider the Grid Rules

to determine whether the claimant could successfully adjust to

work that she had not previously performed. See 20 C.F.R. Pt.

404, Subpt. P, App. 2. Under these Grid Rules, a claimant of

“advanced age” (fifty-five or older), who can no longer perform

past relevant work, has little or no relevant work experience,

and is functionally restricted to light work, is considered

disabled. Id. Indeed, the second ALJ applied the Grid Rules to

find that Finney was disabled from 2010 to 2013, as Finney had

14
reached advanced age at that time and the ALJ determined that

she could no longer perform her past relevant work.

We conclude, however, that there is no reasonable

possibility that the first ALJ, on remand, would reach step

five, so the Grid Rules would never come into play. As

discussed above, when presented with the new evidence, the ALJ

would plainly still have found that Finney could perform her

past relevant work as a sewing machine operator at step four,

thereby completing the analysis and rendering application of the

Grid Rules irrelevant. See § 416.920(a)(4)(iv); Tr. 16 (“If the

claimant has the residual functional capacity to do her past

relevant work, the claimant is not disabled. If the claimant is

unable to do any past relevant work or does not have any past

relevant work, the analysis proceeds to the fifth and last

step.”). Accordingly, Finney has failed to establish that the

medical evidence from 2011 and 2012 is material to the

determination of her disability status from 2006 to 2010, so

remand for reconsideration of the 2010 decision is not warranted

on this basis.

III.

For the foregoing reasons, the judgment is

AFFIRMED.

15
KING, Circuit Judge, dissenting:

I am unable to agree with my fellow panelists, and

therefore write separately in dissent. As explained below, the

“supplemental medical evidence” submitted by Mrs. Finney —

consisting of Dr. Guarino’s report, two MRI reports, and Dr.

Mortenson’s treatment notes — constitutes new and material

evidence. Because Finney has shown good cause for failing to

incorporate that new evidence in the record in the prior

proceeding, I would vacate the judgment and have this matter

remanded to the Commissioner under the sixth sentence of 42

U.S.C. § 405(g) (hereinafter “Sentence six”).

I.

Pursuant to Sentence six, a district court that is

reviewing a denial of Social Security disability benefits should

remand the proceeding to the Commissioner “upon a showing that

there is new evidence which is material and that there is good

cause for the failure to incorporate such evidence into the

record in a prior proceeding.” The supplemental medical

evidence that Finney submitted to the district court plainly

qualifies as “new evidence” under Sentence six. None of the

evidence in the record leading to the 2010 decision (the “prior

proceeding”) is remotely comparable to the new evidence. Finney

also readily satisfies the “good cause” requirement for a

16
Sentence six remand, as the deadline for submitting evidence to

the Commissioner had already expired when the new evidence came

into existence.

Whether the new evidence is material to Finney’s Social

Security benefits claim in the prior proceeding is a somewhat

closer call. The district court, in ruling that Finney’s new

evidence was not material, reasoned that almost none of it

related to the condition of Finney’s knees during the period

adjudicated in the prior proceeding — that is, March 14, 2006,

through December 14, 2010. Although Sentence six does not

explicitly require that new evidence must relate to the period

previously considered by the ALJ, such a requirement is implicit

in the materiality prong. See Hargis v. Sullivan, 945 F.2d

1482, 1493 (10th Cir. 1991); see also Szubak v. Sec’y of Health

& Human Servs., 745 F.2d 831, 833 (3d Cir. 1984) (explaining

that, to warrant a Sentence six remand, the new evidence must

“relate to the time period for which benefits were denied,” and

not be merely probative “of a later-acquired disability or of

the subsequent deterioration of [a] previously non-disabling

condition”).

The requirement that the new evidence be relevant to the

claimant’s condition during the period adjudicated in the prior

proceeding does not, however, mean that the new evidence must

have been created during that period, or even — as the district

17
court erroneously assumed — that the new evidence must expressly

refer to the claimant’s condition during that period. Our

recent decision in Bird v. Commissioner of Social Security is

particularly instructive on that point. See 699 F.3d 337, 340-

41 (4th Cir. 2012). The ALJ in Bird denied the claimant’s

application for disability insurance benefits (“DIB”), but

failed to consider medical evidence postdating the claimant’s

so-called “date last insured” (“DLI”). Id. at 342. We ruled

that the ALJ’s failure to consider Bird’s post-DLI medical

evidence was erroneous. Id.

Our Bird decision rested on the commonsense principle that

“[m]edical evaluations made after a claimant’s insured status

has expired . . . may be relevant to prove a disability arising

before the claimant’s DLI.” See 699 F.3d at 341. Evidence of

disability that comes into existence after a claimant’s DLI may

warrant an inference that the claimant became disabled after the

DLI, but it could also justify the inference “of a possible

earlier and progressive degeneration.” Id. at 340 (internal

quotation marks omitted). Thus, as Judge Keenan explained in

Bird, the ALJ’s duty to consider all relevant evidence includes

the duty to give “retrospective consideration” to evidence

created after a claimant’s DLI, “when the record is not so

persuasive as to rule out any linkage of the final condition of

18
the claimant with his earlier symptoms.” Id. (internal

quotation marks omitted).

Although the procedural posture of this proceeding differs

from Bird, our observations therein about retrospective

relevance are applicable in this context. As explained in Bird,

a DIB claimant must establish that she became disabled before

her DLI. See 699 F.3d at 340. The DLI thus delineates the end

of the “relevant period” for Social Security proceedings where

the claimant is seeking only DIB and her insured status expires

before the ALJ issues a decision. See Zirnsak v. Colvin, 777

F.3d 607, 610 (3d Cir. 2014). In matters such as this, the date

of the ALJ’s decision, rather than the DLI, marks the end of the

relevant period. Whatever event terminates the relevant period,

the basic principle is the same: the relevance of a claimant’s

medical records turns not on when those records were created,

but on whether they are probative of the claimant’s condition

during the relevant period.

A reasonable ALJ could readily infer that the new evidence

reflects Finney’s condition not only in 2011 and 2012 (when that

evidence was created), but also in 2010, and perhaps earlier.

The three most significant pieces of new evidence — the Guarino

report, the September 2011 right knee MRI, and the notes from

Finney’s right knee surgery — were all created within the year

immediately following the 2010 decision. Indeed, the new

19
evidence was generally created closer in time to the 2010

decision than other evidence in the record of the prior

proceeding. Moreover, the new evidence fills significant

evidentiary gaps in the administrative record. For example, the

new evidence includes the first expert opinion by an examining

or treating physician of Finney’s physical functional capacity,

it includes the first MRI reports, and it includes the first

expert statement from a treating orthopedic specialist regarding

Finney’s knee problems. As the majority opinion all but

concedes, the new evidence likely would have impacted the ALJ’s

assessment of Finney’s residual functional capacity (“RFC”).

See ante at 12 (“Dr. Guarino’s 2011 examination notes suggest

that Finney’s physical impairments were more functionally

limiting than the first ALJ’s determination had reflected.”).

To its credit, the majority eschews the district court’s

flawed reasoning regarding the retrospective relevance of

Finney’s new evidence. Instead, the majority concludes that any

change in Finney’s RFC to account for the new evidence would

have no impact on the ALJ’s conclusion that she could yet

perform her past relevant work as a sewing machine operator.

Indeed, the majority emphasizes that even if the first ALJ had

restricted Finney to “light” work, as did the second ALJ, such a

restriction would not preclude Finney from working as a sewing

machine operator. See ante at 12-14.

20
 But Finney’s new evidence could also have impacted her RFC

in ways other than the light work restriction. The second ALJ —

with the benefit of the new evidence — included several

functional limitations in her assessment of Finney’s RFC that

were not made in the first ALJ’s RFC assessment. Of note, the

second ALJ found, based on the new evidence, that Finney must be

allowed to alternate between sitting and standing; could

frequently, but not continuously, operate foot controls with her

feet; and must “avoid concentrated exposure to vibrations and

workplace hazards, such as operational control of moving

machinery.” J.A. 117. In my view, there is a substantial

possibility that those limitations would prevent any person from

working full time as a sewing machine operator. Indeed, the

second ALJ reached that very conclusion. * There is also a

reasonable possibility that, given a more restrictive RFC

assessment, Finney would have been found disabled at step five,

under the Medical-Vocational Guidelines, see 20 C.F.R. pt. 404,

*
Although it does not question the second ALJ’s ultimate
conclusion that Finney could not do her past relevant work as a
sewing machine operator, the majority criticizes the ALJ’s
reasoning on that point as “somewhat perplexing.” See ante at 8
& n.2. Whether, as the majority suggests, the second ALJ
misstated Finney’s RFC as including only sedentary rather than
light work is beside the point. The other limitations in
Finney’s RFC, not its broad classification as “light” or
“sedentary,” are what rendered her unable to work as a sewing
machine operator.

21
subpt. P, app. 2, or based on the absence of a significant

number of jobs accommodating her RFC.

Finally, the Commissioner’s contention that the new

evidence is of “questionable” potential weight is simply an

unsound reason for denying a Sentence six remand. See Br. of

Appellee 19. A reviewing court, in assessing the materiality of

new evidence, must take care not to assume “the role of the

fact-finder” by “[a]ssessing the probative value of conflicting

evidence.” See Meyer v. Astrue, 662 F.3d 700, 707 (4th Cir.

2011). It is the duty of the ALJ, not a reviewing court, to

find facts and resolve evidentiary conflicts in Social Security

proceedings. See Smith v. Chater, 99 F.3d 635, 638 (4th Cir.

1996); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).

Put simply, Sentence six does not create an exception to that

bedrock principle. Sentence six simply reinforces that

principle, ensuring that reviewing courts do not weigh new

evidence, but simply assess whether such evidence is material.

In these circumstances, and consistent with the foregoing

principles, the new evidence was material.

II.

In sum, a proper evaluation of Finney’s new evidence could

well have led the first ALJ to materially modify her assessment

of Finney’s RFC. It is therefore clear that — assessed de novo

22
— the district court erred in ruling that the new evidence was

not material. Because Finney has unquestionably shown good

cause for not submitting the new evidence in the prior

proceeding, the judgment should be vacated and the matter

remanded to the Commissioner.

I respectfully dissent.

23