                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                         July 24, 2006

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                                No. 05-30444
                              Summary Calendar




GWENDOLYN G. CAESAR,

                                           Plaintiff-Appellant,

versus

JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,

                                           Defendant-Appellee.



                         --------------------
            Appeal from the United States District Court
                for the Western District of Louisiana
                           No. 2:04-CV-1989
                         --------------------



Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

      Gwendolyn Caesar appeals the dismissal, without prejudice, for

failure to exhaust, of her action for Social Security disability

benefits.    A Social Security claimant must exhaust administrative

remedies before seeking review in federal court.              Sims v. Apfel,

530 U.S. 103, 107 (2000); see also 20 C.F.R. §§ 404.900(a)(5),



      *
        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should not be published and is not precedent except under the limited circum-
stances set forth in 5TH CIR. R. 47.5.4.
                             No. 05-30444
                                  -2-

(b), 416.1400(a)(5), (b); 42 U.S.C. § 405(g) (providing for judi-

cial review of “final” administrative decisions).

     There is no dispute that Caesar’s claim was before a Social

Security Administrative Law Judge (“ALJ”) when she filed the in-

stant action, and it apparently still is pending.   Caesar nonethe-

less contends that the order from the Social Security Appeals Coun-

cil remanding to the ALJ is appealable as a “final decision” under

20 C.F.R. § 404.984(b)(3).

     That regulation pertains to Appeals Council action following

a remand from federal court and provides:

     If the Appeals Council assumes jurisdiction, it will make
     a new, independent decision based on its consideration of
     the entire record affirming, modifying, or reversing the
     decision of the administrative law judge or remand the
     case to an administrative law judge for further proceed-
     ings, including a new decision. The new decision of the
     Appeals Council is the final decision of the Commissioner
     after remand.

20 C.F.R. § 404.984(b)(3) (emphasis added).   Caesar contends that

the final sentence of subsection (b)(3) means literally that the

decision of the Appeal Council is “final” even though the decision

merely remands to the ALJ for further consideration.

     We reject Caesar’s proposed reading of the regulation, because

doing so would produce “an absurd result in clear violation of the

intent of the drafters” in the context of exhaustion requirements.

See KCMC, Inc. v. F.C.C., 600 F.2d 546, 549 (5th Cir. 1979).     The

phrase “new decision of the Appeals Council” in the final sentence

refers only to the council’s first alternative of making of its own

“new, independent decision,” not its second alternative of remand-
                          No. 05-30444
                               -3-

ing for further consideration by the ALJ.

     The judgment is AFFIRMED.
