                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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




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