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.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Mississippi USDC No. 1:95-CV-277-RR - - - - - - - - - - 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.,

(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* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.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 - 2 -

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.