Brenda Finney v. Carolyn Colvin

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:11-cv-00494-TWB-JLW Copies to all parties and the district court/agency. [999741550].. [14-2141]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.
dissenting opinion.

Judge King wrote a

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Unpublished opinions are not binding precedent in this circuit.

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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”).
that

the

district

court

In this appeal, Finney contends

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

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

experiencing

right

swelling and popping.

knee

pain

along

with

intermittent

An x-ray from July 2008 had revealed no

arthritis, and the doctor concluded that Finney may have torn
cartilage.
call

me

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

when

cartilage.”

she

is

ready

for

[an]

MRI

to

look

for

torn

Tr. 235.

In July 2009, Dorothy Linster, M.D., completed a physical
residual functional capacity (“RFC”) assessment of Finney.
Linster

considered

Finney’s

mental

and

physical

Dr.

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,

disability

had

insurance

protectively
benefits

and

applied
Title

for

XVI

Title

II

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

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determined

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that

Finney

was

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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

determinations.

See

evaluation
20

process

C.F.R.

for

making

§§ 404.1520(a),

disability

416.920(a)(4).

The ALJ noted that Finney satisfied the first requirement for
disability

benefits,

as

she

had

not

engaged

gainful activity since prior to March 14, 2006.
the

ALJ

determined

that

Finney’s

“residual

in

substantial
At step two,

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.
was

not

disabled

Accordingly, the ALJ concluded that Finney
during

the

relevant

period.

The

Appeals

Council denied Finney’s subsequent request for review on April
29, 2011, and the decision became final.
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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.
stiffness in the knee as well as swelling.”

She has had pain and
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.”
144–45.

J.A.

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.”
3.

5

Id.

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Rodney Mortenson, M.D., an orthopedic specialist, examined
Finney’s
treat

right

knee

Finney

examination,

on

through
Dr.

September
August

Mortenson

3,

15,

2011,

2012.

noted

and

continued

During

that

the

Finney

to

initial

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.”
“inconclusive,”

the

doctor

reported

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

Mortenson

performed

Id.

an

Although the MRI was
that,

“clinically[,]

Id.

arthroscopic

Finney’s right knee on October 10, 2011.

exploration

of

During this procedure,

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

of

the

medial

frayed and ragged.”

meniscus[,]

which

was

nondisplaced,

J.A. 177.

He debrided and smoothed the

medial meniscus with a shaver and removed all debris.

6

but

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After the debridement procedure, Dr. Mortenson continued to
monitor

Finney’s

right

knee

down” on June 25, 2012.

condition,

J.A. 159.

which

“finally

calmed

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.
Mortenson’s

treatment

notes

conclude

with

Finney’s

Dr.

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.
her

application

including

the

on

pain

many
in

mental

both

of

and
her

Finney again based

physical
knees.

impairments,
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
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from

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2011

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and

2012:

(1)

Dr.

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Guarino’s

report,

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

(2)

the

MRI

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
The
Finney

ALJ

could

economy.

thus

J.A. 119 (emphasis added).

proceeded

perform

other

to

step

five

to

work

that

exists

assess
in

the

whether
national

At this step, the ALJ applied Rule 202.06 of the

Medical-Vocational

Grid

Rules,

which

2

directed

a

finding

of

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).

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“disabled” based on Finney’s age, education, work experience,
and RFC.

J.A. 120.

had

disabled

been

Accordingly, the ALJ concluded that Finney
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

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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

different’ had the new evidence been before her.”

have

been

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.”
10

Id. (quoting King, 599

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F.2d at 599).

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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.
consider

Accordingly, we affirm the judgment, and we need not

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
Finney

RFC
fails

limited
to

assessment

would

decision.

See

to

explain
change

a

restricted

how
the

Appellant’s

this

shift

ultimate

Br.
11

range

25–27.

of

in

outcome
As

light

the
of

Finney

work,”

ALJ’s
the

RFC
ALJ’s

bears

the

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burden

of

material,

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demonstrating
she

has

not

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that

made

the

an

supplemental

adequate

evidence

showing

to

is

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

examination
were

20

C.F.R.

notes

more

§ 404.1567(c),

suggest

that

functionally

determination

had

Finney’s

limiting

reflected.

but

In

Dr.

Guarino’s

physical

than

the

impairments

first

particular,

2011

Dr.

ALJ’s
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.
exertion

These

findings

requirements

closely

for

light

track
work,

the
not

standard
medium

physical

work.

See

§ 404.1567(b).

Dr. Guarino also reported that Finney had no

limitation

respect

difficulty

with

standing

to

and

sitting

but

moving

for

12

that

she

prolonged

would

have

periods.

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Accordingly,

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if

the

first

ALJ

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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

3

Thus, even if the first

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).

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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.
Finney’s

particular

Nothing in the record indicates that

functional

limitations

prevented

her

from

performing this work.

Accordingly, Finney has not shown that

the

evidence

additional

medical

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

unavailing.
five-step

Medical-Vocational

Grid

Rules

is

similarly

When an ALJ reaches the final step of the standard

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.
404, Subpt. P, App. 2.

See 20 C.F.R. Pt.

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

disabled.

Id.

restricted

to

light

work,

is

considered

Indeed, the second ALJ applied the Grid Rules to

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

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reached advanced age at that time and the ALJ determined that
she could no longer perform her past relevant work.
We

conclude,

possibility
five,

so

that

the

however,

the

Grid

first
Rules

that
ALJ,

would

there

on

is

remand,

never

no

reasonable

would

step

into

come

reach
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
step.”).
medical

work,

the

analysis

proceeds

to

the

fifth

and

last

Accordingly, Finney has failed to establish that the
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.

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KING, Circuit Judge, dissenting:
I

am

unable

to

agree

with

my

fellow

therefore write separately in dissent.
“supplemental

medical

evidence”

panelists,

and

As explained below, the

submitted

by

Mrs.

Finney

—

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

treatment

evidence.

notes

—

constitutes

new

and

material

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
record

for
in

the
a

failure
prior

to

incorporate

proceeding.”

such

The

evidence

into

supplemental

the

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

for

readily

satisfies

the

“good

16

cause”

requirement

a

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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.
evidence

was

The district court, in ruling that Finney’s new
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

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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.
41 (4th Cir. 2012).
application

for

See 699 F.3d 337, 340-

The ALJ in Bird denied the claimant’s

disability

insurance

benefits

(“DIB”),

but

failed to consider medical evidence postdating the claimant’s
so-called “date last insured” (“DLI”).
that

the

ALJ’s

failure

evidence was erroneous.

to

consider

Id. at 342.
Bird’s

We ruled

post-DLI

medical

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.”
quotation marks omitted).

Id. at 340 (internal

Thus, as Judge Keenan explained in

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

duty

created

to

after

give
a

“retrospective

claimant’s

DLI,

consideration”
“when

the

record

to
is

evidence
not

so

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

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the

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claimant

Filed: 01/26/2016

with

his

Pg: 19 of 23

earlier

symptoms.”

Id.

(internal

quotation marks omitted).
Although the procedural posture of this proceeding differs
from

Bird,

our

observations

therein

relevance are applicable in this context.

about

retrospective

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.
F.3d 607, 610 (3d Cir. 2014).

See Zirnsak v. Colvin, 777

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

19

decision.

Indeed,

the

new

Appeal: 14-2141

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evidence

was

decision

Filed: 01/26/2016

than

proceeding.

generally
other

Pg: 20 of 23

created

evidence

Moreover,

the

closer
in

new

the

in

time

to

record

evidence

of

the

fills

evidentiary gaps in the administrative record.

the

2010
prior

significant

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

Finney’s new evidence.

the

retrospective

relevance

of

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.

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But Finney’s new evidence could also have impacted her RFC
in ways other than the light work restriction.

The second ALJ —

with

included

the

benefit

of

the

new

evidence

—

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
machinery.”

hazards,

such

J.A. 117.

as
In

operational
my

view,

control

there

is

a

of

moving

substantial

possibility that those limitations would prevent any person from
working full time as a sewing machine operator.
second

ALJ

reasonable

reached

that

possibility

very
that,

conclusion. *
given

a

more

There

Indeed, the
is

also

restrictive

a

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.

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subpt. P, app. 2, or based on the absence of a significant
number of jobs accommodating her RFC.
Finally,
evidence

is

the
of

Commissioner’s

“questionable”

contention

potential

that

weight

is

unsound reason for denying a Sentence six remand.
Appellee 19.

the

new

simply

an

See Br. of

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.”
2011).

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

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.

principle,

ensuring

Sentence
that

six

reviewing

simply
courts

reinforces
do

not

weigh

that
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

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— the district court erred in ruling that the new evidence was
not

material.

cause

for

proceeding,

not
the

Because

Finney

submitting
judgment

has

the

new

should

be

remanded to the Commissioner.
I respectfully dissent.

23

unquestionably
evidence
vacated

in
and

shown
the
the

good
prior

matter