Stuart vs. Barnhart, (5th Cir. 2002)

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* Pursuant to 5 TH C IR .

R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .

R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40660 Summary Calendar FAY STUART, for Tegan M. Wilson, Plaintiff-Appellant, versus JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. Appeals from the United States District Court for the Eastern District of Texas (USDC No. 1:00-CV-705) December 12, 2002 Before REAVLEY, SMITH and STEWART, Circuit Judges.

PER CURIAM: * Appellant Fay Stuart, on behalf of her granddaughter Tegan Wilson, brought this action against the Commissioner of the Social Security Administration (SSA) to recover social security survivor benefits allegedly due to Tegan Wilson on the theory that the SSA had negligently failed to monitor the use of the benefits sent to WilsonÂ’s mother, Traci Funderburk. Stuart claimed that Funderburk continued to receive the social security benefits in a representative capacity after her daughter had left FunderburkÂ’s residence in 1991 and had moved in with Stuart. The district court remanded the case to the SSA for further proceedings to determine the SSAÂ’s policy of verifying that a child was living with her representative payee parent during the relevant time period. We affirm.

Once Stuart notified the SSA, in 1993, that the benefits should be sent to her as the appropriate representative payee, the SSA promptly designated her the representative payee. Stuart sued, however, for benefits sent to Funderburk between the time Wilson moved in with Stuart and the time Stuart was designated the alternative representative payee and began receiving the benefits. Under 42 U.S.C. § 405(j)(5), an alternative representative payee may recover misapplied benefits in cases where the SSA§ 405(j)(3)(B), applicable to a representative payee who is also a parent of the beneficiary. The district court therefore concluded, correctly in our view, that a remand for further administrative proceedings was in order, since the record did not establish the verification policy the SSA was using during the relevant time frame.

Whether the agency was negligent, and whether such negligence § 405(j)(5) (which we read as a causation requirement), turn in part on whether and the extent to which the agency violated its own policy regarding periodic verification. Stuart complains that the magistrate judge misread the record regarding when the SSA was informed that Funderburk was no longer the proper representative payee, and that this date affects whether the SSA was negligent in failing to monitor Funderburk within one year of the effective date of the amended version of § 405(j)(3). This error if any does not, however, undermine the correctness of district courtÂ’s judgment remanding the case for further proceedings so as to determine the verification policy under the earlier version of the statute. As an appellate court we review judgments, not opinions.

See Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, Inc. , 467 U.S. 837, 842 (1984).

Lest there be any uncertainty, however, we hold that the agency is free to revisit the issue of negligence during the period after the October 1, 1992 effective date of the amendment to § 405(j)(3). AFFIRMED.

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