IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Alicia Willis, 

Plaintiff, 

v. 

Andrew Saul,

Commissioner of Social Security,

Defendant.

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CIVIL ACTION NO.: 1:18-cv-00158 

Judge Cole

Magistrate Judge Litkovitz

DEFENDANT’S MOTION TO FILE A SUR-REPLY

Defendant, Andrew Saul, Commissioner of Social Security, respectfully seeks leave of 

the Court to file the attached sur-reply in order to address an issue raised by Plaintiff for the first 

time in her reply brief. A sur-reply is the only opportunity for the Commissioner to respond to 

this issue.

WHEREFORE, the Commissioner respectfully requests leave to file his proposed surreply, a copy of which is filed with this motion. 

Respectfully submitted,

DAVID DEVILLERS

UNITED STATES ATTORNEY

/s/ Rachel Julis

Rachel Julis

Special Assistant United States Attorney

200 W. Adams Street, 30th Floor 

Chicago, Illinois 60606 

(877) 800-7578 ext. 19132 (phone)

(312) 886-1395 (fax)

rachel.julis@ssa.gov

Granted. 

No opposition.

7/16/2020

Case: 1:18-cv-00158-DRC-KLL Doc #: 33 Filed: 07/16/20 Page: 1 of 5 PAGEID #: 434
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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Alicia Willis,

Plaintiff,

v.

Andrew Saul,

Commissioner of Social Security,

Defendant.

)

)

)

)

)

)

)

)

)

)

CIVIL ACTION NO.: 1:18-cv-00158

Judge Cole

Magistrate Judge Litkovitz

DEFENDANT’S SUR-REPLY

In her reply, Plaintiff alleges that the ALJ and Appeals Council both failed in their duty 

to develop the record in her case. The Commissioner addressed these concerns in his Opposition 

to Plaintiff’s Statement of Errors, and largely rests on his opening brief. Plaintiff, however, 

introduces a new argument in her reply regarding why the Appeals Council failed in their duty to 

develop the record. This claim requires a response by the Commissioner. 

Plaintiff alleges that HALLEX I-3-2-15 required the Appeals Council to obtain the 

additional evidence mentioned by Plaintiff in her request for review (Tr. 117). This argument is 

without merit. HALLEX I-3-2-15 outlines what occurs after a claimant informs the Appeals 

Council (AC) about additional evidence. As it explains, “if a claimant informs the AC about 

additional evidence, the AC will not obtain or consider additional evidence as a basis to grant 

review unless the claimant meets one of the good cause exceptions set for at 20 C.F.R. 

404.970(b) . . . .” HALLEX I-3-2-15. The exceptions in 20 C.F.R. § 404.970(b) include: 

(1) Our action misled you;

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(2) You had a physical, mental, educational, or linguistic limitation(s) that 

prevented you from informing us about or submitting the evidence earlier; or

(3) Some other unusual, unexpected, or unavoidable circumstance beyond 

your control prevented you from informing us about or submitting the 

evidence earlier. 

20 C.F.R. § 404.970(b). Plaintiff argues that a March 24, 2017 sent by the Appeals Council

indicated that the AC had determined that Plaintiff had “good cause” for failing to submit 

additional evidence and, therefore, was required to obtain this evidence on her behalf. This 

argument completely misrepresents the meaning of the March 24, 2017 letter. 

The March 24, 2017 letter was a form letter sent to multiple claimants—it was not in any 

way individualized to Plaintiff’s claim (Tr. 8-9). This letter explained that, on May 1, 2017, the 

Appeals Council changed the rules it applied when considering whether to review a case (Tr. 8). 

One of the rule changes required that a claimant show “good cause” for why they did not inform 

the agency of the any additional evidence they wanted the Appeals Council to review at least five 

days before the date of their hearing. Id. The letter then explained that “[b]ecause your case was 

pending at the Appeals Council before our rule about when to give us evidence became effective, 

we will find that you showed good cause for not submitting additional evidence earlier.” (Tr. 9) 

(emphasis added).

Plaintiff construes this line in the Appeals Council’s letter as a blanket finding that she 

had universal good cause for not submitting additional evidence to the Appeals Council at any 

time. This is clearly not the intended meaning of this letter. Plaintiff did not meet one of the 

“good cause” exceptions in 20 C.F.R. § 404.970(b) that would require the Appeals Council to

follow the procedures outlined in HALLEX I-3-2-15 and obtain and consider additional 

evidence. While Plaintiff claimed that her mental impairment prevented her from obtaining this 

evidence, which would presumably be a claim that she had “good cause” under 20 C.F.R. 

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§ 404.970(b)(2), this argument fails. As addressed more fully in the Commissioner’s opening 

brief, Plaintiff’s mental impairments were primarily related to social anxiety, and she was 

assessed with average intelligence and had no difficulty with comprehension during a 

consultative examination (Tr. 16, 37, 235-36, 238). There was nothing in the record, or in 

Plaintiff’s own statements, to suggest that her mental impairment prevented her from submitting 

additional evidence.

Plaintiff’s reliance on HALLEX I-3-2-15 is misplaced as the Appeals Council’s letter 

only allowed good cause for not submitting additional evidence earlier in the administrative 

proceedings; not good cause for failing to submit this evidence at all. As discussed in the 

Commissioner’s opening brief, Plaintiff had many opportunities to submit additional evidence 

and failed to do so without good cause. Plaintiff has also been represented for over a year and a 

half, yet no additional records have been proffered by her attorney. Any argument about 

additional records, and whether they are material, is speculative at best.

CONCLUSION

For the foregoing reasons, the Commissioner respectfully requests that the Court affirm 

the Commissioner’s decision.

Respectfully submitted,

DAVID DEVILLERS

UNITED STATES ATTORNEY

/s/ Rachel Julis

Rachel Julis

Special Assistant United States Attorney

200 W. Adams Street, 30th Floor

Chicago, Illinois 60606

(877) 800-7578 ext. 19132 (phone)

rachel.julis@ssa.gov

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CERTIFICATE OF SERVICE

I hereby certify that on May 18, 2020, I electronically filed the foregoing with the Clerk of the 

Court using the CM/ECF system, which will send notification of such filing to the following:

Carol L. Herdman

/s/ Rachel Julis

Rachel Julis

Assistant Regional Counsel

200 W. Adams Street, 30th Floor

Chicago, Illinois 60606

(877) 800-7578 ext. 19132 (phone)

(312) 886-1395 (fax)

rachel.julis@ssa.gov

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