           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          October 30, 2009

                                     No. 09-10137                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



MELISSA EGGINS

                                                   Plaintiff - Appellant
v.

MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                   4:07-CV-412


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Melissa Eggins appeals the district court’s decision to affirm the
Administrative Law Judge’s (“ALJ”) denial of Social Security disability benefits.
Because we find there was substantial evidence to support the ALJ’s
determination that Eggins is not disabled, we affirm.
       Eggins filed for Social Security benefits in June 2005, alleging disability
due to sitting limitations, shortness of breath, nose bleeds, and migraine


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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headaches beginning in March 1991.1 After the Social Security Administration
denied her applications for benefits both initially and on reconsideration, Eggins
requested a hearing before an ALJ. The ALJ found Eggins to be not entirely
credible regarding the intensity, persistence, and limiting effects of her alleged
medical symptoms. Furthermore, the ALJ gave little weight to the opinions of
Eggins’ treating physicians because none supported their opinions with clinical
or examination evidence. The ALJ noted that the examination evidence that
was on record indicated minimal physical limitations in her lungs, hips and
back. The ALJ issued an unfavorable decision, finding Eggins not disabled
because she retained the ability to perform a modified range of light work
activity.
       The Appeals Council denied Eggins’ request for review of the ALJ’s
decision.     Eggins appealed to the district court.                  A magistrate judge
recommended affirming the ALJ’s final administrative decision; Eggins did not
file an objection to the magistrate’s recommendation.                    The district court
subsequently adopted the magistrate’s report and recommendation affirming the
ALJ’s decision.
       Eggins now appeals, arguing the district judge abused its discretion in
denying her disability benefits.2 Our task on appellate review is to examine



       1
         Eggins was insured for disability benefits through December 31, 1994. To be eligible
for disability benefits under Title II of the Social Security Act, Eggins must establish that she
became disabled on or before December 31, 1994. See Ivy v. Sullivan, 898 F.2d 1045, 1048 (5th
Cir. 1990) (claimants bear the burden of establishing a disabling condition before the
expiration of their insured status). Eggins would also need to establish that this disability
continued interrupted through the period of time covered by her application for Title II
benefits. 42 U.S.C. § 416(i)(2)(A).
       2
         Under the “Statement of Issues,” Eggins purports to argue the district court abused
its discretion in failing to issue a certificate of appealability. However, Eggins does not make
any argument to support her contention. We treat issues which the appellant fails to properly
argue in an appellate brief as abandoned. FED . R. APP . P. 28(a); United States v. Beaumont,
972 F.2d 553, 563 (5th Cir. 1992).

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whether substantial evidence exists in the record to support the ALJ’s
determination. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988).
      In evaluating a disability claim, the ALJ conducts a five-step sequential
analysis to determine whether “(1) the claimant is presently working; (2) the
claimant has a severe impairment; (3) the impairment meets or equals an
impairment listed in appendix 1 of the social security regulations; (4) the
impairment prevents the claimant from doing past relevant work; and (5) the
impairment prevents the claimant from doing any other substantial gainful
activity.” Audler v. Astrue, 501 F.3d 446, 447-48 (5th Cir. 2007). If, at any step,
the claimant is determined to be disabled or not disabled, the determination is
conclusive and the inquiry ends. Id. The burden of establishing disability rests
with the claimant for the first four steps, and then shifts to the Commissioner
to show that there is other substantial work in the national economy that the
claimant is able to perform. Id. Once the Commissioner shows that a claimant
is able to perform a significant number of jobs in the national economy, the
burden shifts back to the plaintiff to rebut this finding. Perez v. Barnhart, 415
F.3d 457, 461-62 (5th Cir. 2005).
      First, Eggins contests the ALJ’s failure to consider testimony from certain
treating physicians that supports Eggins’ claims of physical limitation. An “ALJ
is free to reject the opinion of any physician when the evidence supports a
contrary conclusion.” Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987)
(citation omitted). Substantial evidence supports the ALJ’s conclusion that none
of Eggins’ treating physicians have been able to support their opinions with
objective medical findings. For example, Eggins’ 1993 letter from Dr. Hrishi
Maewal stated she was unable to work due to “chemical bronchitis,” but was not
accompanied by any objective clinical or examination findings showing any
degree of impairment in Eggins’ pulmonary functioning. Similarly, Eggins’
treating physician, Dr. Clarence Brooks, wrote two letters in 2000 stating

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Plaintiff was “permanently disabled” without identifying any particular medical
condition that rendered her unable to work. Indeed, Dr. Brooks’s treatment
records from March 1995 through July 2000 contained no pulmonary studies or
objective clinical or examination findings showing any degree of impairment in
Eggins’ pulmonary functioning other than instances of wheezing. The opinions
of physicians at the Allergy Environmental Clinic were equally conclusory and
supported by only a few physical examinations, which in fact showed Eggins’
chest to be clear.         The physicians observed wheezing only with “forced
exhalation,” indicating these symptoms were not present with normal activities.
The ALJ was not required to give these opinions substantial weight. See Perez,
415 F.3d at 466 (finding “good cause” exceptions for giving less or no weight to
treating physicians’ opinions exceptions, such as “statements that are brief and
conclusory, not supported by medically acceptable clinical laboratory diagnostic
techniques, or otherwise unsupported by the evidence”); Greenspan v. Shalala,
38 F.3d 232, 237 (5th Cir. 1994) (same).
      Furthermore, the record shows substantial evidence that Eggins retained
the residual functional capacity to perform work.            Eggins’ medical history
presents numerous contradictory findings.           For instance, although Eggins
reported persistent pulmonary irritation originating from an exposure to harsh
chemicals while on the job in 1991, a 1996 consultative examination showed her
lungs were clear.3 A 2000 examination by Dr. Mark Dambro noted that Eggins’
lungs were clear and her chest x-ray was negative. A 2001 examination by a
pulmonary specialist also showed a clear chest x-ray, wheezing only with forced
exhalation, and an unimpaired lung capacity 4 ))none of which are disabling


      3
       This examination does not appear in the administrative transcript. However, Eggins
waived issues regarding the completeness of the record in her opposition to the
Commissioner’s motion to remand. USCA5 87-92.
      4
          See infra n.3.

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symptoms that would prevent Eggins from performing certain jobs within her
residual functional capacity.
      Second, Eggins argues that the ALJ failed to consider her mental
limitations (depression and borderline intelligence) in finding that she could
perform a modified range of light work activity.            However, the ALJ
acknowledged that Eggins suffered from depression and noted her treatment
with therapist Maria Villarreal and her 2000 psychological consultive evaluation
with Dr. James Cannici. Dr. Cannici concluded Eggins suffered from a single
episode of major depression; he made “rule out” impressions of somatoform
disorder and borderline intellectual functioning. Nevertheless, the report did
not indicate that these diagnoses adversely impacted Eggins’ ability to perform
a moderate range of light work activity. The ALJ accommodated Eggins’ mental
impairments in his decision, noting she would be “limited to unskilled work
secondary to depression.” Any argument that Eggins’ “borderline intellectual
functioning” should be an independent basis for establishing an inability to work
is not well taken. See Selders v. Sullivan, 914 F.2d 614, 619 (5th Cir. 1990)
(“Below-average intelligence alone does not constitute a non-exertional
impairment.” (quoting Johnson v. Sullivan, 894 F.2d 683, 686 (5th Cir. 1990)).
      Thus, substantial evidence))including the medical evidence on record,
Eggins’ lack of credibility as to the persistence and limiting effects of her
physical symptoms, and the vocational expert’s testimony regarding the type and
number of jobs available for someone with Eggins’ limitations))supports the
ALJ’s conclusion that Eggins can perform jobs requiring a moderate range of
light work activity and is therefore denied Social Security disability benefits.
      AFFIRMED.




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