Cathy D. Ferguson v. Commissioner of Social Security

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0392p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
CATHY D. FERGUSON ,
Plaintiff-Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY ,
Defendant-Appellee.
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N
No. 09-4387
Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 08-01478—Vernelis K. Armstrong, Magistrate Judge.
Argued: December 9, 2010
Decided and Filed: December 23, 2010
Before: MOORE, SUTTON, and McKEAGUE, Circuit Judges.
_________________
COUNSEL
ARGUED: W. David Koeninger, ADVOCATES FOR BASIC LEGAL EQUALITY,
INC., Toledo, Ohio, for Appellant. Alfred C. Sanchez, SOCIAL SECURITY
ADMINISTRATION, Chicago, Illinois, for Appellee. ON BRIEF: W. David
Koeninger, ADVOCATES FOR BASIC LEGAL EQUALITY, INC., Toledo, Ohio, for
Appellant. Alfred C. Sanchez, SOCIAL SECURITY ADMINISTRATION, Chicago,
Illinois, for Appellee.
_________________
OPINION
_________________
McKEAGUE, Circuit Judge. This is an appeal from an order of the district court
affirming the decision of the Commissioner of Social Security denying appellant Cathy
Ferguson’s applications for disability insurance benefits and supplemental security
income. Ferguson identifies two procedural errors which are said to require remand to
1

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the Commissioner for further consideration of a fully developed record. For the reasons
that follow, we affirm the district court’s judgment.
I. BACKGROUND
Claimant Cathy D. Ferguson was born in 1952. She has a high school education.
From 1988 to 2001, she worked in various capacities—as a materials handler, an assisted
living center aid, and a maintenance worker. She has not worked since February 18,
2001, when she alleges she became unable to work due to “anxiety, paranoia, stress,
nerves, voices, depression.” The extensive medical records show a history of
degenerative disc disease, back pain and arthritis, conditions which result in some
physical limitations. However, Ferguson’s disability claim is based primarily on her
mental impairments. There is no question about the existence of mental impairments;
the challenge for Ferguson has been in adducing objective medical findings that
demonstrate the impairments are so severe as to render her “disabled.”
Her applications for disability insurance benefits and supplemental security
income were filed on August 13, 2001. A hearing was conducted by Administrative Law
Judge William L. Hafer in Lima, Ohio on June 8, 2004. In a 17-page opinion issued on
May 25, 2005, the ALJ denied the claims. The ALJ found that Ferguson’s physical
impairments were not severe, but her mental impairments, identified as residual type
schizophrenia and panic disorder, were severe. Still, the ALJ determined that she
retained the residual functional capacity to perform unskilled work in settings requiring
no more than superficial contact with others without rigid deadlines and high production
standards. That is, the ALJ concluded that she remained able to perform her past
relevant work as a cleaner and materials handler.
On review, the Appeals Council vacated the ALJ’s decision and remanded for
a more thorough evaluation of claimant’s credibility, complaints of pain, and ability to
perform work-related activities. On remand, ALJ Hafer conducted a second hearing, on
November 28, 2005 before issuing his second decision on July 25, 2006, again denying
Ferguson’s claims. The second decision is lengthy and thorough. Again, the ALJ
determined that Ferguson had the following impairments: (1) degenerative disc disease

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No. 09-4387 Ferguson v. Comm’r of Soc. Sec. Page 3
and osteoarthritis of the cervical spine; (2) degenerative disc disease and osteoarthritis
of the lumbar spine; (3) hypertension; (4) schizophrenia, residual-type; and (5) panic
disorder. The ALJ found these impairments to be “severe,” but concluded they did not,
alone or in combination, meet the severity requirements for a disability finding. The
ALJ reiterated his earlier finding that Ferguson retained the residual functional capacity
to perform her past relevant work. Ferguson’s request for review by the Appeals
Council was denied on April 16, 2008 and the second ALJ decision was upheld. The
Appeals Council considered additional medical evidence submitted by Ferguson, but
found that it was cumulative and did not alter the outcome.
Ferguson sought judicial review pursuant to 42 U.S.C. § 405(g). The action was
commenced in the Northern District of Ohio, where the parties consented to have
Magistrate Judge Vernelis K. Armstrong conduct all proceedings in the case and render
final judgment, pursuant to 28 U.S.C. § 636(c). On September 30, 2009, the court
affirmed the final decision of the Appeals Council approving the ALJ’s decision. The
district court rejected each of three claims of error asserted by Ferguson, holding:
(1) that the ALJ did not improperly ignore a treating physician’s opinion, in violation of
Social Security Ruling (“SSR”) 96-5p; (2) that the ALJ did not err in questioning
Ferguson’s credibility insofar as the complained of severity and frequency of her
symptoms were not supported by the objective medical evidence; and (3) that the ALJ’s
conclusion that Ferguson had not demonstrated the required level of severity of
impairments to meet the definition of “disability” is supported by substantial evidence.
On appeal, Ferguson insists that the ALJ violated SSR 96-5p by discounting a
treating physician’s opinion without first contacting the physician for clarification and
contends the district court erred by declining to remand the matter to the ALJ for
reconsideration in light of new evidence never considered by the ALJ.

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No. 09-4387 Ferguson v. Comm’r of Soc. Sec. Page 4
II. ANALYSIS
A. SSR 96-5p Recontact Requirement
The gravamen of Ferguson’s first claim is that the ALJ improperly rejected the
opinion of one of her treating physicians. The record indicates that Ferguson received
treatment from a psychiatrist, Dr. Ruth Erulkar, M.D., from March 2003 until November
2005. The record of Dr. Erulkar’s treatment is limited to handwritten office notes,
reflecting Ferguson’s reported history and subjective complaints, as well as medications
prescribed. Among these notes is one statement of opinion by Dr. Erulkar: “[Patient]
will not be able to work due to her agoraphobia and panic attacks. Paranoia present.”
A.R. 428, Note 11/16/05. This note was entered just twelve days before the second
hearing conducted by the ALJ and was addressed in his decision as follows:
On November 16, 2005, Dr. Erulkar stated, “Patient will not be able to
work due to her agoraphobia and panic attacks. Paranoia present.”
(Exhibit 25F, page 2). I reject Dr. Erulkar’s opinion, which is not
supported by Dr. Erulkar’s own objective findings. Dr. Erulkar’s notes
are handwritten and only partially legible. Generally, they consist of
phrases, not complete sentences. It is often difficult to discern when Dr.
Erulkar is merely recording the history and complaints offered to her by
the claimant and when she is noting objective mental status abnormalities
that she has observed. However, they appear to contain mostly the
claimant’s history and complaints. In any event, viewing the record as
a whole, including the paucity of objective abnormalities recorded by the
examiners who have evaluated the claimant, along with the claimant’s
daily activities, social functioning, and general tendency to exaggerate
her symptoms, I reject Dr. Erulkar’s opinion of disability.
A.R. 69, Decision p. 51.
Ferguson construes the ALJ’s treatment of Dr. Erulkar’s notes as reflecting the
ALJ’s failure to understand the bases for her opinion that Ferguson was unable to work.
In such a circumstance, Ferguson contends, where the bases for a treating source’s
opinion are not clear, the ALJ was obliged, pursuant to Social Security Ruling 96-5p, to
make every reasonable effort to recontact the source for clarification. Instead, she
argues, the ALJ “chose to throw up his hands and disregard the notes entirely.” The

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1Social Security Rulings do not have the force and effect of law, but are “binding on all
components of the Social Security Administration” and represent “precedent final opinions and orders and
statements of policy and interpretations” adopted by the Commissioner. 20 C.F.R. § 402.35(b)(1). In
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 549 (6th Cir. 2004), the court refrained from ruling on
whether Social Security Rulings are binding on the Commissioner in the same way as Social Security
Regulations, but assumed that they are. We make the same assumption in this case.
district court did not specifically address Ferguson’s charge that the ALJ had a duty to
recontact Dr. Erulkar. Rather, the court held the ALJ complied with SSR 96-5p by
basing his assessment of Ferguson’s residual functional capacity upon the record as a
whole after conducting an extensive examination of numerous opinions, including that
of Dr. Erulkar.
On appeal, the district court’s ruling on Ferguson’s claim that the ALJ failed to
apply the correct legal standard is reviewed de novo. Valley v. Comm’r of Soc. Sec.,
427 F.3d 388, 390 (6th Cir. 2005).
Social Security Ruling 96-5p purports to “clarify Social Security Administration
policy on how we consider medical source opinions on issues reserved to the
Commissioner, including . . . whether an individual is ‘disabled’ under the Social
Security Act.” Soc. Sec. Rul. 96-5p, 1996 WL 374183 at *1 (July 2, 1996).1 For
purposes of SSR 96-5p, “medical opinions” are defined as “statements from physicians
and psychologists or other acceptable medical sources that reflect judgments about the
nature and severity of [the claimant’s] impairment(s).” Id., 1996 WL 374183 at *2. The
provision at issue recognizes that even though some issues, such as whether an
individual is “disabled,” are case-dispositive administrative issues reserved to the
Commissioner,
adjudicators must always carefully consider medical source opinions
about any issue, including opinions about issues that are reserved to the
Commissioner. For treating sources, the rules also require that we make
every reasonable effort to recontact such sources for clarification when
they provide opinions on issues reserved to the Commissioner and the
bases for such opinions are not clear to us.
Id. The Ruling goes on to identify two conditions that must both be met to trigger the
duty to recontact: “the evidence does not support a treating source’s opinion . . . and the

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No. 09-4387 Ferguson v. Comm’r of Soc. Sec. Page 6
2These requirements parallel those set forth in 20 C.F.R. § 404.1512(e) and 20 C.F.R.
§ 416.912(e), which also recognize a duty to recontact in cases where the evidence from the treating
physician is inadequate to determine disability and contains a conflict or ambiguity requiring clarification.
adjudicator cannot ascertain the basis of the opinion from the record.” Id. at *6
(emphasis added).2 While the former of these requirements is met in this case, the latter
is not.
First, however, we reject Ferguson’s characterization of the ALJ’s error. While
the ALJ said he “rejected” Dr. Erulkar’s “opinion of disability,” the language and
analysis of his thorough decision clearly refutes the charge that he “threw up his hands”
and ignored or disregarded Dr. Erulkar’s notes entirely. The ALJ explicitly referred to
and quoted from Dr. Erulkar’s notes extensively. Further, he actually relied on Dr.
Erulkar’s office notes in rejecting other medical opinions of record. Specifically, he
rejected the opinions of Michael D. Wagner, M.D., John M. Miga, Ph.D., and Roseann
F. Umana, Ph.D., who all concluded in 2002 that Ferguson’s mental impairments were
not severe. With reference to Dr. Erulkar’s notes, the ALJ found, despite the scarcity
of “objective evidence relating to the claimant’s mental status, . . . that she has some
mental impairments that cause a significant restriction in her ability to perform basic
work-related activities.” A.R. 69, Decision p. 51. Thus, the suggestion that the ALJ
outright dismissed, ignored and disregarded Dr. Erulkar’s notes is groundless.
Further, to the extent the ALJ “rejected” Dr. Erulkar’s “opinion of disability,”
he did so not because the bases for her opinion were unclear to him, but because those
bases, Ferguson’s self-reported history and subjective complaints, were not supported
by objective medical evidence:
The claimant’s complaints are not fully supported by the objective and
psychological evidence, as has been described in detail above. The most
striking aspect of this case is the gulf between the claimant’s complaints
of extreme mental symptoms (e.g., panic attacks that last all day long,
auditory hallucinations, communications from her television and
computer directed specifically to her, and paranoid ideation) and the
almost complete lack of objective evidence to support her dramatic
complaints.

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No. 09-4387 Ferguson v. Comm’r of Soc. Sec. Page 7
A.R. 64, Decision p. 46. Again, the ALJ stated specifically: “I reject Dr. Erulkar’s
opinion, which is not supported by Dr. Erulkar’s own objective findings.” A.R. 69,
Decision p. 51.
At the time of the ALJ’s Decision, the record was largely devoid of objective
medical evidence substantiating the complained-of severity of Ferguson’s anxiety and
paranoia. To this day, Ferguson has not even argued that Dr. Erulkar’s opinion of
disability was in fact based on undisclosed objective medical evidence that would have
been forthcoming if only the ALJ had inquired.
This “striking gulf,” as the ALJ put it, between Ferguson’s subjective complaints
and the objective medical evidence, is all the more striking in light of the chronology of
the administrative proceedings. When the ALJ made his final decision in July 2006,
Ferguson had been granted a “second bite at the apple.” She had been advised in the
ALJ’s first decision, in May 2005, that her subjective complaints were insufficient to
establish disability and there was no objective medical evidence indicating that she could
not still perform her past relevant work. When this decision was vacated by the Appeals
Council and the case remanded for a more thorough evaluation, Ferguson was afforded
another opportunity to remedy the identified shortcomings in her claims by
supplementing the record and making a more credible showing in a second hearing.
Indeed, Ferguson did supplement the record with additional medical evidence,
including additional notes from Dr. Erulkar. Yet, though she was represented by
counsel, she failed to adduce additional objective medical evidence substantiating the
severity of her mental impairments. Dr. Erulkar’s office notes are fairly characterized
in the ALJ’s second opinion as consisting “mostly of the claimant’s history and
complaints.” Dr. Erulkar’s only statement of opinion is encapsulated in the one
handwritten statement that Ferguson “will not be able to work due to her agoraphobia
and panic attacks.”
This disability opinion is not explained in any way, is not tied to any physical
examination findings or empirical testing results, and is not justified by reference to
findings made by other physicians. Though she treated Ferguson for some two years

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No. 09-4387 Ferguson v. Comm’r of Soc. Sec. Page 8
during the pendency of her application for disability benefits, Dr. Erulkar appears not
have conducted any testing or prepared any report or letter explaining any objective
medical bases for her opinion. As a consequence, the supplemental evidence furnished
by Dr. Erulkar amounted, in material part, to no more than a statement of her opinion,
based on Ferguson’s own self-reporting, that Ferguson was disabled—i.e., an opinion
that relates to an issue “reserved to the Commissioner;” an opinion that is “never entitled
to controlling weight or special significance.” Soc. Sec. Rul. 96-5p, 1996 WL 374183
at *2. See also Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)
(determination of disability is prerogative of Commissioner, not treating physician, and
treating physician’s opinion is entitled to substantial deference only if supported by
objective medical evidence).
Because Dr. Erulkar’s opinion on this issue reserved to the Commissioner was
not supported by the objective medical evidence, the first precondition triggering the
ALJ’s recontact obligation was arguably met. As to the second precondition, however,
the bases for Dr. Erulkar’s opinion cannot be said to be unclear. Ferguson’s reported
history and subjective complaints were the bases for Dr. Erulkar’s opinion. These bases
were not unclear. They were in fact sufficient, in light of the other record evidence, to
persuade the ALJ that Ferguson suffered from severe mental impairments. But they
were insufficient to persuade the ALJ that Ferguson was disabled. This determination,
whether Ferguson had carried her burden of showing that she is “disabled,” is the case
dispositive issue reserved to the ALJ. In this respect, Dr. Erulkar’s opinion was deemed
unpersuasive not because its bases were unclear, but because they were not corroborated
by objective medical evidence.
It follows that the ALJ’s SSR 96-5p duty to make every reasonable effort to
recontact Dr. Erulkar was not triggered and therefore not violated. See Poe v. Comm’r
of Soc. Sec., 342 F. App’x 149, 156 n.3 (6th Cir. 2009) (“[A]n ALJ is required to re-
contact a treating physician only when the information received is inadequate to reach
a determination on claimant’s disability status, not where, as here, the ALJ rejects the

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No. 09-4387 Ferguson v. Comm’r of Soc. Sec. Page 9
3Moreover, the remand and reconsideration of Ferguson’s claim essentially afforded Ferguson
the very sort of re-contacting opportunity she contends she was wrongfully denied. When the ALJ first
denied her claim, he had considered Dr. Erulkar’s notes of treatment for the period March 13, 2003 to
January 21, 2004. A.R. 110, Index of Exhibits; A.R. 403-410, Dr. Erulkar Notes. Although the ALJ did
not explicitly mention Dr. Erulkar’s notes in his first decision, Ferguson’s application was deemed to lack
sufficient support. On reconsideration, the ALJ considered additional notes from Dr. Erulkar, reflecting
her treatment of Ferguson from March 13, 2004 to November 16, 2005. A.R. 20, Decision p.2; A.R. 427-
38, Dr. Erulkar Notes. That is, by supplementing the record, Ferguson had the opportunity to bolster her
application through evidence from Dr. Erulkar. In his second decision, the ALJ addressed Dr. Erulkar’s
notes explicitly and explained why they were deemed deficient. Again, the evidence fell short—not for
lack of clarity, but for lack of substance.
limitations recommended by that physician.”); DeBoard v. Comm’r of Soc. Sec., 211 F.
App’x 411, 416 (6th Cir. 2006) (same).3
In sum, we find no error. “The burden lies with the claimant to prove that she
is disabled.” Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001). The ALJ has
discretion to determine whether additional evidence is necessary. Id. at 355. Here, the
ALJ’s thorough opinion demonstrates that he carefully considered the entire record in
this case, including Dr. Erulkar’s notes; that he identified substantial evidence
supporting the determination that Ferguson was not disabled; and that he did not abuse
his discretion in failing to recontact Dr. Erulkar, because the bases for her opinion,
though wanting, were not unclear or ambiguous. We therefore uphold the district court’s
rejection of Ferguson’s claim that the ALJ violated SSR 96-5p.
B. Remand for Consideration of New Evidence
In her second claim, Ferguson contends the district court erred when it declined
to remand the matter to the ALJ for consideration of new evidence that was accepted by
the Appeals Council, but never considered by the ALJ. The new evidence consists of
two letters from psychologist Carol A. Loeffler, Ph.D.
In the first letter, addressed to Dr. Erulkar and dated July 30, 2007, Dr. Loeffler
summarized the results of two tests she had administered to Ferguson, the Minnesota
Multiphasic Personality Inventory-2 (“MMPI-2”) and the Symptom Checklist-90-
Revised (“SCL-90-R”). A.R. 476, Letter 7/30/07. While acknowledging that the results
of the MMPI-2 were technically invalid (because Ferguson was unable to complete the
test in one sitting), Dr. Loeffler characterized the testing as suggesting a person who “is

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No. 09-4387 Ferguson v. Comm’r of Soc. Sec. Page 10
experiencing tremendous internal and external distress,” who “struggles with distorted
thinking with delusions,” who feels “hopeless, withdrawn, overwhelmed and guilt
ridden,” who “ruminates and has rigid rituals and superstitious phobias,” and who “may
be immobilized by multiple symptoms and complaints.” Id. Dr. Loeffler characterized
these impressions as consistent with the results of the SCL-90-R. She summarized her
overall impressions: “Overall, Ms. Ferguson struggles to maintain her hold on reality.
Her level of appropriate functioning has been severely compromised. She has reached
the point where she is questioning her quality of life and wishes she were dead.” A.R.
477, Loeffler Letter 7/30/07.
The second letter is addressed to the Social Security Administration and is dated
September 28, 2007. It is directed to the question of Ferguson’s ability to work. Dr.
Loeffler commented on the same testing results, as well as her impressions made after
eleven sessions with Ferguson over the course of six months. In addition to her
diagnostic impressions that Ferguson suffers from panic disorder with agoraphobia,
dysthymia, and delusional disorder, the letter includes the following observations:
Ms. Ferguson’s mental health issues are severe and interfere
significantly with her ability to work, socialize and conduct [activities of
daily living]. She has been ill for greater than 14 years with her
condition getting increasingly worse each year.
She has avoided recent hospitalizations only because of her
family’s attentiveness to her needs and tolerance of her behaviors.
Ms. Ferguson’s paranoia is so great she cannot develop
relationships or concentrate for any period of time on a particular topic.
She is easily distracted by noises, etc. as she believes people are trying
to get her and/or listen to her conversation. Her delusions are well
developed and well entrenched with her paranoia permeating every
aspect of her life.
I hope this helps you to understand Cathy Ferguson better and the
extent to which her mental illness affects her functioning and precludes
her from engaging in normal activities such as working and socializing.

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No. 09-4387 Ferguson v. Comm’r of Soc. Sec. Page 11
A.R. 478-79, Loeffler Letter 9/28/07. The Appeals Council considered the Dr. Loeffler
letters but gave them little weight, concluding the information was cumulative and
provided no basis for changing the ALJ’s decision.
The district court correctly recognized that a remand under 42 U.S.C. § 405(g)
“sentence six” for consideration of additional evidence is warranted only if the evidence
is “new” and “material” and “good cause” is shown for the failure to present the
evidence to the ALJ. Foster, 279 F.3d at 357. These requirements are defined as
follows:
For the purposes of a 42 U.S.C. § 405(g) remand, evidence is new only
if it was “not in existence or available to the claimant at the time of the
administrative proceeding.” . . . Such evidence is “material” only if
there is “a reasonable probability that the Secretary would have reached
a different disposition of the disability claim if presented with the new
evidence.” . . . A claimant shows “good cause” by demonstrating a
reasonable justification for the failure to acquire and present the evidence
for inclusion in the hearing before the ALJ. . . . [T]he burden of
showing that a remand is appropriate is on the claimant.
Foster, 279 F.3d at 357 (citations omitted); see also Hollon v. Comm’r of Soc. Sec., 447
F.3d 477, 483 (6th Cir. 2006). The district court concluded that Dr. Loeffler’s letters
were not “material” because (a) the MMPI-2 results were invalid; (b) no empirical
results from the SCL-90-R were provided; (c) Dr. Loeffler’s impressions merely
confirmed evidence that was already in the record; and (d) the evidence would not alter
the ALJ’s decision that Ferguson was not disabled.
There is some question whether the district court’s refusal to remand is reviewed
de novo or for abuse of discretion. See Templeton v. Comm’r of Soc. Sec., 215 F. App’x
458, 464 n.3 (6th Cir. 2007) (declining to decide between the two standards). For the
reasons that follow, we hold that Ferguson has failed to carry her burden of establishing
entitlement to a remand under either standard of review.
The letters from Dr. Loeffler meet the first of the three factors needed to warrant
a § 405(g) “sentence six” remand. Generated in 2007, the letters detailing Dr. Loeffler’s

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No. 09-4387 Ferguson v. Comm’r of Soc. Sec. Page 12
impressions based on testing and treatment provided in 2007 are “new.” They do not,
however, satisfy the latter two factors.
As justification for her failure to present the kind of evidence embodied in Dr.
Loeffler’s letters in 2005, when the record was open before the ALJ, Ferguson argues
that she had no idea further substantiation of her mental impairments would be necessary
before the ALJ rendered his second adverse decision in July 2006. We are not
persuaded. When the Appeals Council granted Ferguson the “second bite at the apple,”
she was on notice that the ALJ had already found her application deficient for lack of
objective medical evidence substantiating the severity of her subjective complaints.
Attentive to this deficiency, Ferguson supplemented the record with Dr. Erulkar’s notes.
The problem is that although Dr. Erulkar’s notes reflect a diagnosis consistent with that
later reached by Dr. Loeffler, they offer no objective medical substantiation and no
professional explanation of the severity of the mental impairments. Dr. Erulkar’s notes
did not cure the deficiency and Ferguson has not shown good cause for her failure to
then elicit the sort of evidentiary support she later sought from Dr. Loeffler.
It is possible that Ferguson’s condition had significantly worsened between 2005
and 2007. Dr. Loeffler’s letters indicate a gradual worsening of Ferguson’s psychosis
and isolation. Yet, in general, Dr. Loeffler’s observations were consistent with Dr.
Erulkar’s notations of Ferguson’s complaints two years earlier. There is no apparent
reason why the sort of additional information provided by Dr. Loeffler could not have
been obtained, even from Dr. Erulkar herself, two years earlier. Ferguson has not carried
her burden of showing good cause for her failure to present evidence of the type and
quality provided by Dr. Loeffler two years earlier. See Hollon, 447 F.3d at 485
(claimant who fails to identify obstacles to timely submission of evidence fails to
demonstrate good cause).
Ferguson’s showing that Dr. Loeffler’s letters are “material” is also wanting. To
the extent the letters purport to furnish the objective evidence that had been lacking, they
too fail to actually deliver. As the district court observed, Dr. Loeffler herself
acknowledged that the MMPI-2 results she purports to rely on were “invalid.” Further,

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the SCL-90-R results, said to be consistent with the “suggestions” derived from the
invalid MMPI-2 results, were cited by Dr. Loeffler, but were not attached to her letter
and have not been made part of the record.
In the absence of the substantiating objective evidence, we are left with Dr.
Loeffler’s impressions. These largely unsupported impressions, being consistent with
those reflected in Dr. Erulkar’s notes, were reasonably deemed by the Appeals Council
and the district court to be merely “cumulative,” confirming the pre-existing evidence
that Ferguson was paranoid, withdrawn, and subject to panic attacks. Dr. Loeffler’s
letters purport to explain the severity of Ferguson’s mental impairments, but Dr.
Loeffler’s impressions were derived from testing and treatment provided in 2007, almost
two years after the ALJ conducted the second hearing. Among these impressions are Dr.
Loeffler’s observations that Ferguson is “becoming increasingly more psychotic,” is
“experiencing increased intrusive thoughts around past abuse which further exacerbates
her anxiety and depression,” and is “getting increasingly worse each year.” A.R. 477,
478. Because the information added by Dr. Loeffler’s letters comes over a year after the
ALJ’s denial of benefits and, on its face, evidences a subsequent deterioration in
condition after the second hearing, it was properly deemed “immaterial” because it does
not necessarily speak to Ferguson’s condition at the relevant time. See Jones v. Comm’r
of Soc. Sec., 336 F.3d 469, 478 (6th Cir. 2003) (evidence of subsequent deterioration
in condition deemed immaterial); Wyatt v. Sec. of Health and Human Services, 974 F.2d
680, 685 (6th Cir. 1992) (same).
Accordingly, Ferguson having failed to show that the new evidence is “material”
and that there is “good cause” for not presenting it earlier, we find no error in the district
court’s refusal to order a § 405(g) sentence six remand.
III. CONCLUSION
For the foregoing reasons, the district court’s judgment affirming the
Commissioner’s denial of Ferguson’s claims for disability benefits and supplemental
security income is AFFIRMED.

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