United States Court of Appeals
Fifth Circuit
F I L E D
In the April 18, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
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m 05-30539
Summary Calendar
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ELFRIDA V. JOHNSON,
Plaintiff-Appellant,
VERSUS
JO ANNE B. BARNHART
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
m 2:04-CV-2966
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Before SMITH, GARZA, and PRADO, missing her suit contesting the termination of
Circuit Judges. her supplemental security income (“SSI”)
benefits and the amount of benefits for her
PER CURIAM:* four children.1 Among others, she alleges that
Elfrida Johnson appeals a judgment dis-
1
Because Johnson is pro se, we read her claims
as to the “embezzlement” of these funds by the
*
Pursuant to 5TH CIR. R. 47.5, the court has de- Social Security Administration as claims chal-
termined that this opinion should not be published lenging its determinations with respect to the
and is not precedent except under the limited amount of the benefits and asserting an entitlement
circumstances set forth in 5TH CIR. R. 47.5.4. (continued...)
one of her children, Demas A. Washington, The Commissioner filed a motion to dismiss
should have remained on the claim of Demas on the ground that Johnson’s civil action was
G. Washington (his adopted father) and not untimely because she did not appeal within
switched to her claim when Demas A. Wash- sixty days of the final decisions rendered in
ington moved in with her. March 1994 and September 1999. Johnson
filed an opposition to the Commissioner’s mo-
Johnson also alleges that she received tion but did not assert that a mental impair-
“waiver” for several overpayments on account ment prevented her from timely filing suit.
of her children but that the Social Security Ad-
ministration (“SSA”) deducted the overpay- In his report and recommendation, the mag-
ments from their checks and never returned istrate judge found that the Commissioner had
that money. She also made claims with re- not filed proof, as required by law, that John-
spect to her and her children’s entitlement to son received notice of the September 1999
benefits on account of her husband, Raymond action. He noted that in fact there was no
Johnson, because they are separated but not evidence in the record showing any action by
divorced. She claims that even if they are di- the agency. Accordingly, he denied the Com-
vorced, she is entitled to benefits on his ac- missioner’s motion to dismiss.
count because they were married for over ten
years, and she is not getting married again. Nevertheless, the magistrate judge found,
sua sponte, that Johnson’s claim with respect
According to the Commissioner, Elfrida to the termination of her SSI benefits was
Johnson was found eligible to receive disability barred because the sixty-day limitations period
insurance benefits in March 1994 and SSI for challenging the termination of benefits in
benefits in September 1999 (based on an ap- January 1999 had expired. He noted that the
plication filed in June 1999). She received a January 1999 Notice of Action stated plainly
notice of planned actions from the SSA, which that Johnson had only sixty days to appeal it.
she attached to her pleadings, dated January He added that under Bowen v. City of New
1999, informing her that she and her husband York, 476 U.S. 476, 480 (1986), the equitable
became an eligible couple on September 1, tolling principles did not apply in this case be-
1997, so they were owed $1,359 for the cause Johnson had not asserted that a mental
underpayment. impairment prevented her from seeking timely
judicial review of the termination of her bene-
The letter also stated that Johnson was in- fits.
eligible for SSI benefits after January 1999
because her and her husband’s combined in- Johnson filed objections to the report and
come exceeded the regulatory limit. The no- recommendation. The district court overruled
tice plainly stated that she had sixty days from the objections, approved the report and recom-
the receipt of that notice to seek review, but mendation and adopted the magistrate judge’s
she did not seek review of that decision until opinion, thereby entering judgment dismissing
November 2, 2004, when she filed this suit. the suit as time-barred.
On appeal, Johnson does not contest the
1
(...continued) finding that she had not asserted a mental im-
to what she calls “back pay.”
2
pairment, nor does she state that she had such AFFIRMED in part and REVERSED in
impairment. Thus, with respect to this claim part. REMANDED for proceedings not in-
for termination of SSI benefits, we affirm for consistent with this opinion.
the reasons stated in the report and recommen-
dation.
Nonetheless, Johnson had made other
claims, as one can discern from her complaint,
her opposition to the motion to dismiss, and
her brief on appeal. These are the claims with
respect to back pay of benefits for her chil-
dren, and some claims with respect to their
entitlement and her entitlement to benefits on
account of her husband.
The Commissioner did not discuss those
claims in the motion to dismiss, nor did the
magistrate judge mention or rule on them in
the report and recommendations. Nor is there
any evidence in the record showing any action
by the agency with respect to the benefits of
Johnson’s children or husband. In fact, as the
magistrate judge pointed out, there is no evi-
dence in the record showing any action by the
agency.2 Therefore, regardless of the merits of
any of these claims, we should not rule on
them, but instead we remand them to the
district court.
2
A copy of the September 1999 notice, for
example, could have helped us understand why
Johnson, who was told that her SSI benefits would
be terminated in January 1999, was approved
nonetheless for such benefits in September 1999. If
indeed Johnson was approved for such benefits in
September 1999, her challenge of the termination
of these benefits is not only time-barred but is
moot. In fact, on page 4 of her complaint, Johnson
appears to say that in fact, Social Security “never
stop the SSI checks” and she stated in her applica-
tion to proceed in forma pauperis that she receives
$63 dollars in SSI per month, and $521 is disabil-
ity per month, thus a total of $584 per month.
3