                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  March 8, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-40654
                         Summary Calendar



WANDA EVANS,

                                     Plaintiff-Appellant,

versus

JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,

                                     Defendant-Appellee.

                        --------------------
            Appeal from the United States District Court
         for the Eastern District of Texas, Tyler Division
                        USDC No. 6:04-CV-509
                        --------------------

Before DAVIS, JOLLY and OWEN, Circuit Judges.

PER CURIAM:*

     Wanda Evans appeals the dismissal of her suit for social

security benefits.   The district court dismissed her appeal for

failure to exhaust administrative remedies.   The record before

the district court, which has since been supplemented on appeal,

did not include Ms. Evans’ prior petition for Appeals Council

review or her prior appeal to the United States District Court

for the Eastern District of Texas.   The Commissioner concedes




     *
      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this opinion should not be published and is not precedent except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.
                            No. 05-40654
                                 -2-

that based on the supplemented record, that dismissal of Evans’

complaint for lack of exhaustion was improper.

     However, the supplemented record also reveals that Evans has

already received judicial review of the May 19, 1994 decision of

the ALJ that is being appealed in this case.   All elements for

application of res judicata to her present suit have been

satisfied.   The prior decision was between the same parties,

judgment was rendered by a court of competent jurisdiction, the

judgment was final and on the merits and the plaintiff raises the

same cause of action.    Russell v. SunAmerica Securities, Inc.,

962 F.2d 1169, 1172 (5th Cir. 1992).   We are free to decide this

case on the basis of res judicata despite the fact that this

defense was not raised before the district court because all of

the relevant facts are contained in the record and are

uncontroverted.   Id.   See also Wooten v. Pumpkin Air, Inc., 869

F.2d 848, 850 n.1 (5th Cir. 1989)(“When the judgment of the

district court is correct, it may be affirmed on appeal for

reasons other than those asserted or relied on below.") citing

Terrell v. University of Texas System Police, 792 F.2d 1360, 1362

n. 3 (5th Cir.1986), cert. denied, 479 U.S. 1064, 107 S. Ct. 948,

93 L. Ed. 2d 997 (1987).

     AFFIRMED.




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