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

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 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 Wilson’s mother, Traci

Funderburk. Stuart claimed that Funderburk continued to receive the social security

benefits in a representative capacity after her daughter had left Funderburk’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 SSA’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

(j)(5), an alternative

representative payee may recover misapplied benefits in cases where the SSA’s negligent

failure “to investigate or monitor a representative payee results in misuse of benefits by

the representative payee.”

We essentially agree with the analysis of the magistrate judge below, whose report

and recommendation was adopted by the district court, insofar as a remand was

recommended. As explained by the magistrate judge, a determination of whether the SSA

was negligent in failing to monitor Funderburk depends on what “periodic basis” it had

selected for verifying that Wilson was living with Funderburk under the then-effective

version of

(j)(3)(B), applicable to a representative payee who is also a

2 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 “result[ed] in misuse of

benefits” under § 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 court’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.,

(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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