Willis v. Commissioner of Social Security

Filing 33

NOTATION ORDER granting defendant's 32 Motion for leave to file sur-reply instanter. Signed by Magistrate Judge Karen L. Litkovitz on 7/16/2020. (art)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Granted.
No opposition.
7/16/2020

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
[phone] ext. 19132 (phone)
[phone] (fax)
[e-mail]

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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.

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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
[phone] ext. 19132 (phone)
[e-mail]

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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
[phone] ext. 19132 (phone)
[phone] (fax)
[e-mail]

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