Gladney v. Chater ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-60234
Summary Calendar
RONALD GLADNEY,
Plaintiff-Appellant,
versus
SHIRLEY CHATER, Commissioner
of Social Security,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:95-CV-277-RR
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October 29, 1996
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Ronald Gladney appeals the district court’s dismissal of his
complaint appealing the Commissioner of Social Security’s denial
of benefits as time-barred. The Commissioner’s motion to dismiss
is reviewed as a motion for summary judgment because matters
outside the complaint were considered in granting the motion.
Washington v. Allstate Ins. Co., 901 F.2d 1281, 1284 (5th Cir.
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
No. 96-60234
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1990); Fed. R. Civ. P. 12(b)(6). Gladney argues that he
successfully rebutted the presumption that he received notice of
the Appeals Council’s decision to uphold denial of benefits by
showing that the notice was sent to an incorrect address. Our
review of the record reveals that Gladney did not present a
material fact issue as to whether he successfully rebutted the
presumption. Therefore, Gladney’s complaint filed in the
district court was untimely. The district court did not err by
dismissing the complaint as time-barred.
AFFIRMED.