Lundberg v. Colvin

Filing 28

ORDER affirming the decision of the Commissioner, accepting (Doc. 23 ), and dismissing this case; IT IS FURTHER ORDERED striking (Doc. 27 ) as contrary to (Doc. 23 ); FURTHER ORDERED that the Clerk of the Court enter Judgment in favor of Defendant and close this case. Signed by Chief Judge Raner C Collins on 2/20/2015. (See Order for details)(ALS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Frances Lundberg,

No. CV-13-02465-TUC-RCC
Plaintiff,

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v.

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ORDER

Carolyn W. Colvin,

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Defendant.

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Before the Court is (Doc. 24) Plaintiff’s Response (Objections) to the Magistrate

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Judge’s Report and Recommendation (“R&R”) (Doc. 23). Pursuant to LR Civ. 72.2(a)

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and F.R.Civ. P. Rule 72, and after conducting a de novo review, the Court accepts the

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Magistrate Judge’s R&R in its entirety.

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For the purposes of laying out the factual and procedural history in this case, the
Court hereby incorporates the full R&R.

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Analysis

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The heart of the issue before the ALJ, the Magistrate, and this Court is whether

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Plaintiff was provided misinformation by the Tucson SSA office such that she may

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recover pursuant to 20 C.F.R. § 404.633.

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Plaintiff avers that during her September 2005 appointment for Medicare and

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retirement benefits, she did not ask the specific question of whether she could draw on

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her ex-husbands account while allowing her account to grow. (Doc. 26 at p.2).

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Nevertheless, she argues that she provided the representative with sufficient information

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(that she knew she could draw on her ex-husband’s account as well as her own and that

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she wanted the largest benefit possible) such that the representative should have informed

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her that she could draw on her ex-spouse’s account when she reached full retirement age

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in April 2006 and continue to let her account grow until she reached the age of 70. Id.

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Upon review of this record, this Court agrees with the ALJ and the Magistrate

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Judge that there is no evidence that the representative Plaintiff was provided with

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misinformation in response to any specific request in September 2005. By her own

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admission, Plaintiff did not directly ask the representative if she could draw on her ex-

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husband’s account while letting hers grow—Plaintiff only claims she asked which benefit

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would be larger. Id. The representative correctly answered that they would be about the

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same amount and that she could draw on either account. Id. at p. 2, p. 5.

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The Court sympathizes with Plaintiff and further agrees with the Magistrate Judge

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that “Looking at the record as a whole, considering both evidence that supports and

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undermines the ALJ’s findings, it is clear that the evidence may be susceptible of more

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than one rational interpretation, but in that case, the decision of the Commissioner,

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acting through the ALJ, must be upheld.” (Doc. 23 at p. 7-8) (Emphasis added). Citing

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Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1998); Orteza v. Shalala, 50 F.3d 748,

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749 (9th Cir. 1995) (per curiam).

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Accordingly,

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IT IS HEREBY ORDERED affirming the decision of the Commissioner,

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accepting (Doc. 23), and dismissing this case;

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IT IS FURTHER ORDERED striking (Doc. 27) as contrary to (Doc. 23);

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IT IS FURTHER ORDERED that the Clerk of the Court enter Judgment in favor

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of Defendant and close this case.
Dated this 20th day of February, 2015.

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