                                                                                     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
                                             _______________

                                               m 05-30539
                                             Summary Calendar
                                             _______________



                                         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,                         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
