Johnson v. Barnhart

United States Court of Appeals
Fifth Circuit
F I L E D
April 18, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
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
_________________________
Before SMITH, GARZA, and PRADO,
Circuit Judges.
PER CURIAM:*
Elfrida Johnson appeals a judgment dis-
missing her suit contesting the termination of
her supplemental security income (“SSI”)
benefits and the amount of benefits for her
four children.1 Among others, she alleges that
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
1 Because Johnson is pro se, we read her claims
as to the “embezzlement” of these funds by the
Social Security Administration as claims chal-
lenging its determinations with respect to the
amount of the benefits and asserting an entitlement
(continued...)

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one of her children, Demas A. Washington,
should have remained on the claim of Demas
G. Washington (his adopted father) and not
switched to her claim when Demas A. Wash-
ington moved in with her.
Johnson also alleges that she received
“waiver” for several overpayments on account
of her children but that the Social Security Ad-
ministration (“SSA”) deducted the overpay-
ments from their checks and never returned
that money. She also made claims with re-
spect to her and her children’s entitlement to
benefits on account of her husband, Raymond
Johnson, because they are separated but not
divorced. She claims that even if they are di-
vorced, she is entitled to benefits on his ac-
count because they were married for over ten
years, and she is not getting married again.
According to the Commissioner, Elfrida
Johnson was found eligible to receive disability
insurance benefits in March 1994 and SSI
benefits in September 1999 (based on an ap-
plication filed in June 1999). She received a
notice of planned actions from the SSA, which
she attached to her pleadings, dated January
1999, informing her that she and her husband
became an eligible couple on September 1,
1997, so they were owed $1,359 for the
underpayment.
The letter also stated that Johnson was in-
eligible for SSI benefits after January 1999
because her and her husband’s combined in-
come exceeded the regulatory limit. The no-
tice plainly stated that she had sixty days from
the receipt of that notice to seek review, but
she did not seek review of that decision until
November 2, 2004, when she filed this suit.
The Commissioner filed a motion to dismiss
on the ground that Johnson’s civil action was
untimely because she did not appeal within
sixty days of the final decisions rendered in
March 1994 and September 1999. Johnson
filed an opposition to the Commissioner’s mo-
tion but did not assert that a mental impair-
ment prevented her from timely filing suit.
In his report and recommendation, the mag-
istrate judge found that the Commissioner had
not filed proof, as required by law, that John-
son received notice of the September 1999
action. He noted that in fact there was no
evidence in the record showing any action by
the agency. Accordingly, he denied the Com-
missioner’s motion to dismiss.
Nevertheless, the magistrate judge found,
sua sponte, that Johnson’s claim with respect
to the termination of her SSI benefits was
barred because the sixty-day limitations period
for challenging the termination of benefits in
January 1999 had expired. He noted that the
January 1999 Notice of Action stated plainly
that Johnson had only sixty days to appeal it.
He added that under Bowen v. City of New
York, 476 U.S. 476, 480 (1986), the equitable
tolling principles did not apply in this case be-
cause Johnson had not asserted that a mental
impairment prevented her from seeking timely
judicial review of the termination of her bene-
fits.
Johnson filed objections to the report and
recommendation. The district court overruled
the objections, approved the report and recom-
mendation and adopted the magistrate judge’s
opinion, thereby entering judgment dismissing
the suit as time-barred.
On appeal, Johnson does not contest the
finding that she had not asserted a mental im- 1(...continued)
to what she calls “back pay.”

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pairment, nor does she state that she had such
impairment. Thus, with respect to this claim
for termination of SSI benefits, we affirm for
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.
AFFIRMED in part and REVERSED in
part. REMANDED for proceedings not in-
consistent with this opinion.
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.

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