           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          August 26, 2008

                                    No. 08-30110                      Charles R. Fulbruge III
                                  Summary Calendar                            Clerk


ELFRIDA V. JOHNSON

                                                  Plaintiff - Appellant
v.

MICHAEL J. ASTRUE, Commissioner of Social Security

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                         USDC No. 2:04-CV-02966-LMA


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Elfrida Johnson, formerly Elfrida Washington, applied for and received
disability insurance benefits in March of 1990. She also successfully applied for
supplemental security income benefits beginning in June 1999. Her husband,
Raymond Johnson, applied for disability insurance benefits in September 1997.
This claim was denied, and he did not appeal. But he reapplied in September
1999. After an initial denial, he was awarded benefits following a hearing. One


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                        No. 08-30110

of Ms. Johnson’s children, D.W., became entitled to child’s benefits in February
1993 when Demas Washington, his biological grandfather and his adoptive
father, died. In July 1994, Ms. Johnson applied for child’s insurance benefits for
three of her children – D.W., R.W., and D.Z.W. – and they were awarded benefits
effective March 1989, June 1989, and July 1994, respectively. Ms. Johnson’s
fourth child, T.J., received child’s benefits effective August 1999.
       In November 2004, Ms. Johnson filed suit in district court, alleging that
she and her children were entitled to social security benefits on account of Mr.
Johnson’s entitlement to benefits and requesting seven years of back benefits
for herself, seven years of back benefits for Demas A., Raymond J., and Denzel
M. Washington, and four years of back benefits for Treyvon D. Johnson. She
alleged that in 1997, she became eligible to receive her husband’s benefits and
benefits for two children, and that Social Security paid her benefits, counting
Mr. and Ms. Johnson as an “eligible couple.” However, she alleged that as of
January 1999, she was informed that “Elfrida and Raymond’s soc[ial] security
exceeds the income limit to qualify for SSI benefits.”1 Despite this notice, it
appears that Ms. Johnson again began receiving benefits in September 1999.2
In response to Ms. Johnson’s complaint, Defendant alleged that Ms. Johnson
became entitled to disability insurance benefits after a favorable hearing on
March 17, 1994, but that she had not filed a request for a hearing since 1993 and
had not requested a review of a hearing decision. As such, it maintained that
her complaint should be dismissed because she filed it more than 60 days after
receiving the Commissioner’s final decisions and that no circumstances justified
equitable tolling.

       1
         Her response to Defendant’s motion to dismiss further explained that when she
received a check for $1,359.000, she was informed that should would “not be eligible for SSI
after 1-99 because the total of your spouse’s soc[ial] security and your soc[ial] security exceeds
the income to qualify for SSI benefits.”
       2
           Johnson v. Barnhart, 176 Fed. Appx. 574, 576 n.2 (5th Cir. 2006).

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      The magistrate judge to which the case was assigned found that
Defendant’s motion to dismiss should be denied, as Ms. Johnson was not seeking
review of Defendant’s 1994 decision, and Defendant had not provided proof that
Ms. Johnson received notice of the 1999 action. But the judge recommended, sua
sponte, that Ms. Johnson’s claims be dismissed as frivolous “because the
limitations period for challenging the termination of her benefits has expired.”
Finally, the magistrate found that equitable tolling did not apply because Ms.
Johnson had not alleged that a mental impairment prevented her from timely
seeking review of Defendant’s termination decision. The district court approved
the magistrate’s report and recommendation, denying Defendant’s motion to
dismiss and dismissing Ms. Johnson’s claims as time-barred. Ms. Johnson
appealed that decision to this court. We affirmed the district court’s holding that
Johnson’s claim contesting the termination of her benefits was time-barred and
that principles of equitable tolling should not apply.3 We further determined,
however, that Ms. Johnson had not only filed a termination claim; she had also
requested back pay for her children and for herself, through her husband’s
entitlement to social security. We remanded the case to the district court for
further development of those claims, as the district court had not addressed
them.4 On remand, the court entered briefing orders requiring Ms. Johnson to
explain “whether she submitted claims for back pay benefits for her children and
herself on account of her husband” and “whether the administrative claim was
resolved and why she disagreed with any action taken by the agency.” One of
the briefing orders was returned to the Court unclaimed, and it appears that Ms.
Johnson did not respond to the briefing orders.5 Defendant filed a motion to

      3
          Id. at 576.
      4
          Id.
      5
       This may have occurred because Ms. Johnson evacuated New Orleans and moved to
Shreveport after Hurricane Katrina. The district court, however, sent “all three” briefing

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dismiss and attached the Declaration of Patrick J. Herbst, an employee of the
Commissioner, to the district court. That declaration provided, inter alia,
      A review of Ms. Johnson’s file shows that she did not file an
      application for child’s insurance benefits for Demas and Raymond
      until July 5, 1994. In that application, she filed for Denzel
      Washington, who had been born June 8, 1994, as well. . . . In
      December 1994, SSA awarded child’s benefits to Demas, Denzel and
      Raymond on Ms. Johnson’s record. Demas was awarded effective
      with the month of March 1989, Raymond effective with the month
      of June 1989, and Denzel effective with the month of July 1994. The
      complex provisions of 20 CFR 404.403 permitted the beneficial
      application of the so-called “combined family maximum” provisions,
      as Demas was dually entitled to child’s insurance benefits on the
      records of both Ms. Johnson and his father, Mr. Washington. There
      is correspondence in Ms. Johnson’s file regarding the issue of benefit
      rates payable to her children. However, the undersigned see[s] no
      evidence of a reconsidered determination on such issue, nor a
      hearing decision of Appeals Council review pertaining to the same.

      A magistrate judge once again addressed Defendant’s motion to dismiss
and Ms. Johnson’s claims. The judge observed that Ms. Johnson
      claims that both she and her children are entitled to SSI benefits on
      account of her husband, Raymond Johnson (“Mr. Raymond
      Johnson”) because (1) she and her husband are merely separated
      and not divorced and (2) they were married for over ten years and
      she is not going to remarry.

The magistrate, addressing whether Ms. Johnson had ever submitted claims for
back benefits for herself and her children on account of her husband, whether
the SSA had made determinations on those claims, and whether she had sought
review of any of those claims, relied on the Commissioner’s responses, as it
appears that Ms. Johnson had not responded to the court’s briefing requests.
According to the Commissioner, relying on Patrick Herbst’s declaration, Mr.



orders to Ms. Johnson’s Shreveport address.

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Johnson received disability insurance benefits beginning in 1999, and in
November 1999, Ms. Johnson filed an application for her youngest child, Treyvon
Johnson, on account of Mr. Johnson. The court found, however, that “[t]he
Commissioner indicates that it has no record or evidence that Ms. Elfrida
Johnson ever filed an application for spousal benefits for herself, or applied for
benefits for her three older children: Demas A. Washington . . ., Denzel
Washington . . ., and Raymond Washington . . ., on account of Mr. Raymond
Johnson.” The court recognized that Ms. Johnson did, however, file a claim for
disability insurance benefits on behalf of herself and on her own account on
March 19, 1990, and was granted benefits. Demas became entitled to benefits
in 1993 when his adoptive father died, and Ms. Johnson successfully applied for
benefits for three of her children, including Demas, in July 1994.      The court
then observed that
      [b]ecause Demas was entitled to child’s insurance benefits on the
      records of both . . . his biological father, Mr. Raymond Johnson, and
      his adoptive father, Mr. Demas G. Washington, the Commissioner
      contends the “combined family maximum” took effect, limiting the
      overall amount of benefits payable on any one person’s account.6
      According to the Commissioner’s record, Ms. Elfrida Johnson
      questioned whether her children were receiving the appropriate
      benefit rates. However, Patrick J. Herbst, . . . a representative for
      the appellate operations of the SSA, declared that there is no
      evidence that Ms. Elfrida Johnson sought reconsideration of the
      amount of benefits the SSA concluded that her children were due.
      . . . [H]e also found no hearing decision by an ALJ on the issue . . .
      .

      The court concluded that Ms. Johnson “did not seek review of the
determination [of her children’s benefits] and nor did she administratively
question whether they were receiving the correct amount in benefits.” As a
result, it recommended the dismissal of Ms. Johnson’s claims with respect to


      6
          Citing 20 C.F.R. § 404.403.

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back benefits due to her children “because the limitations period for challenging
the agency decision has expired.” Regarding Ms. Johnson’s claims for her own
benefits on account of her husband, the magistrate found that “the
Commissioner indicates that SSA records show that Ms. Elfrida Johnson never
submitted an application for spousal benefits for herself or the Washington
children on the account of Mr. Raymond Johnson.” It concluded that “her
request for review is not ripe and should be denied.” The district court accepted
the magistrate’s report and recommendations and dismissed Ms. Johnson’s
claims as frivolous “because the limitations period for challenging the
application of the combined family income maximum rule has run and there is
no record that she has submitted an application for benefits on the account of
her husband . . .” Ms. Johnson appealed.
      On appeal, Ms. Johnson urges that once eligibility to benefits has been
established, there is no time bar to her claims. To establish eligibility, she
attaches a Social Security Administration Notice of Award to her husband
Raymond Johnson, dated December 8, 1998, which states,
      You are entitled to monthly disability benefits beginning December
      1997. . . . We found that you became disabled under our rules on
      June 22, 1997. However, you have to be disabled for 5 full calendar
      months in a row before you can be entitled to benefits. For these
      reasons, your first month of entitlement to benefits is December
      1997.

Pursuant to this notice, Ms. Johnson urges that the Social Administration owes
her and her children entitlements due since June 1997 on her husband Raymond
Johnson’s account, stating, “Raymond Johnson is my husband and he was
approved for social disability since June 1997.” But while we construe pro se
pleadings liberally,7 on remand from this court Ms. Johnson failed to allege that
she ever submitted a benefit claim for herself on account of Mr. Johnson or a

      7
          See, e.g., Andrade v. Gonzales, 459 F.3d 538, 543 (5th Cir. 2006).

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claim for back pay, despite several briefing requests from the district court. Nor
does she make this claim in her brief before this court. Furthermore, Ms.
Johnson did not allege before the district court, or on appeal, that she contested
Defendant’s determination in January 1999 that the “combined family
maximum” would take effect for her children’s benefits, or that she submitted
claims to the Social Security Administration for back pay benefits for her
children and herself.8 While the children, as Ms. Johnson claimed, were indeed
entitled to benefits, she failed to contest the cap on those benefits that resulted
from the “family maximum” determination. The Social Security Act provides,
       Any individual, after any final decision of the Commissioner of
       Social Security made after a hearing to which he was a party,
       irrespective of the amount in controversy, may obtain a review of
       such decision by a civil action commenced within sixty days after
       the mailing to him of notice of such decision or within such further
       time as the Commissioner of Social Security may allow.9

And the Social Security Administration regulations provide,
       (a) A claimant may obtain judicial review . . . . (c) within 60 days
       after the Appeals Council’s notice of denial of request for review of
       the presiding officer’s decision or notice of the decision by the
       Appeals Council is received by the individual, institution, or agency,

       except that this time may be extended by the Appeals Council upon
       a showing of good cause.10



       8
          It appears from an exhibit filed with the district court in relation to her original
complaint that Ms. Johnson filed an “Appeal for Reconsideration” with Defendant through a
state representative. She alleged in that appeal that she “became eligible for soc sec on Mr.
Raymond Johnson” and that she “is eligible for soc security on her account and her husband
[’s] account.” She also requested back pay. However, there is nothing in the record indicating
that Defendant received this appeal, denied the appeal, or that she requested a hearing with
Defendant on these issues, and she failed to refer the district court to this exhibit on remand.
       9
           42 U.S.C. § 405(g).
       10
            20 C.F.R. § 422.210(a),(c).

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While an individual who is entitled to benefits may challenge the denial or
reduction of those benefits, there are time constraints for such challenges.11
       The district court did not err in dismissing Ms. Johnson’s claims that
Defendant owed her and her children back pay, as her claim contesting
Defendant’s determination of her children’s benefits is outside of the limitations
period, and she failed to allege before the district court or on appeal that she
brought a claim with Defendant for benefits for herself on account of her
husband, or a claim for back benefits.12
       AFFIRMED.




       11
             Ms. Johnson maintains that “[o]nce eligibility has been established,” there is no
statute of limitations. As we have discussed, the Social Security Act and the Code, however,
establish time limitations to challenge a determination that affects previously-established
eligibility.
       12
         This left the district court, and also leaves us, without any “final decision” to review.
See 42 U.S.C. § 405(g) (“Any individual, after any final decision of the Commissioner of Social
Security made after a hearing to which he was a party, . . . may obtain a review . . . .”).

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