Brenda Finney v. Carolyn Colvin , 637 F. App'x 711 ( 2016 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
Barb.
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