* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30110

Summary Calendar 

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

United States Court of Appeals

Fifth Circuit

F I L E D

August 26, 2008

Charles R. Fulbruge III

Clerk
No. 08-30110

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). 

2

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 notfiled a requestfor 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. 
No. 08-30110

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

3

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 ofthe 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
No. 08-30110

orders to Ms. Johnson’s Shreveport address. 

4

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 ofthe 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.
No. 08-30110

6 Citing 20 C.F.R. § 404.403. 

5

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
No. 08-30110

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

6

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,7on 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
No. 08-30110

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). 

7

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
No. 08-30110

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 . . . .”). 

8

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 ofthe 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.