Fenton v. Commissioner of Social Security

Filing 17

ORDER that Defendant may file a surreply to Plaintiff's reply (ECFNo. 16 ), no later than thirty days from the date of this order. Signed by Magistrate Judge Carl W. Hoffman on 1/9/2018. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DOUGLAS R. FENTON,

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Plaintiff,
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v.
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CAROLYN W. COLVIN,
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Defendant.
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_______________________________________ )

Case No. 2:16-cv-02356-RFB-CWH

ORDER

Presently before the Court is Plaintiff’s reply in support of his complaint (ECF No. 16), filed

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on April 27, 2017. In his reply, Plaintiff argued, for the first time, that the ALJ failed to consider

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Plaintiff’s limited ability to reach as the result of shoulder impairment. The Commissioner did not

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have an opportunity to respond to that argument.

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The decision to consider arguments or facts raised for the first time in a reply brief is, to some

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degree, at the discretion of the trial court. Backcountry Against Dumps v. Chu, 215 F. Supp. 3d 966,

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975 (S.D. Cal. 2015). Although Plaintiff’s arguments could have been raised earlier, given their

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importance to Plaintiff’s claims, the Court will consider them. Since the Court will consider the new

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arguments in Plaintiff’s reply, the Court will also grant leave for the Commissioner to file a surreply.

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IT IS THEREFORE ORDERED that Defendant may file a surreply to Plaintiff’s reply (ECF
No. 16), no later than thirty days from the date of this order.
DATED: January 9, 2018

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_________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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