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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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 5 6 7 8 9 10 DOUGLAS R. FENTON, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ) ) Defendant. ) ) _______________________________________ ) 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 11 on April 27, 2017. In his reply, Plaintiff argued, for the first time, that the ALJ failed to consider 12 Plaintiff’s limited ability to reach as the result of shoulder impairment. The Commissioner did not 13 have an opportunity to respond to that argument. 14 The decision to consider arguments or facts raised for the first time in a reply brief is, to some 15 degree, at the discretion of the trial court. Backcountry Against Dumps v. Chu, 215 F. Supp. 3d 966, 16 975 (S.D. Cal. 2015). Although Plaintiff’s arguments could have been raised earlier, given their 17 importance to Plaintiff’s claims, the Court will consider them. Since the Court will consider the new 18 arguments in Plaintiff’s reply, the Court will also grant leave for the Commissioner to file a surreply. 19 20 21 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 22 23 _________________________________ C.W. Hoffman, Jr. United States Magistrate Judge 24 25 26 27 28 1

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