USCA11 Case: 22-10497 Document: 22-1 Date Filed: 12/21/2022 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10497
Non-Argument Calendar
____________________
LYDIA GLOVER,
Plaintiff-Appellant,
versus
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 4:20-cv-01622-GMB
____________________
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2 Opinion of the Court 22-10497
Before LAGOA, BRASHER, and HULL, Circuit Judges.
PER CURIAM:
Lydia Glover appeals the district court’s order affirming the
Social Security Administration (“SSA”) Commissioner’s denial of
her application for disability insurance benefits (“DIB”). The only
issue on appeal is whether the ALJ applied the right legal standard
in evaluating two medical opinions. After careful review, we
affirm.
I. BACKGROUND
On September 11, 2017, Glover applied for DIB. Glover
alleged that since July 17, 2017, she was disabled due to a total left
knee replacement, high blood pressure, diabetes, seizures, arthritis,
and carpal tunnel syndrome. The SSA denied her claim.
On March 15, 2018, Glover requested a hearing before an
administrative law judge (“ALJ”). Before the hearing, Glover
submitted medical records from multiple medical sources,
including an orthopedic clinic, a surgery center, a neurology
center, and various treating physicians. This evidence
demonstrated that she sought treatment for, inter alia, left knee
pain, seizures, depression, and anxiety over the years. Also in the
record was an opinion from a state agency physician who had
reviewed Glover’s medical records. As relevant to this appeal,
Glover submitted a physical capacities form from one of her
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22-10497 Opinion of the Court 3
treating physicians, Dr. Xavier Smith, and a mental health source
statement from her treating psychiatrist, Dr. Huma Khusro.
On August 22, 2019, the ALJ held a hearing. At the hearing,
Glover, who was represented by an attorney, testified about, inter
alia, her prior work experience, her medical history, and the effect
of her impairment on her abilities. A vocational expert also
testified.
On November 15, 2019, after considering the evidence in the
record, the ALJ found Glover “not disabled.” 1 The ALJ reviewed
the evidence and determined that Glover had two severe
impairments—status-post left knee replacement and epilepsy—and
multiple non-serve impairments, such as depression. The ALJ
found Glover retained the residual functional capacity to perform
“light work,” with certain restrictions, such as climbing, stooping,
kneeling, crouching, crawling, and balancing.
In doing so, the ALJ found Dr. Smith’s opinion as to Glover’s
physical capacities to be “less persuasive” because his opinion was
inconsistent with his conversative treatment (medication and
physical therapy). Similarly, the ALJ found Dr. Khusro’s opinion
as to Glover’s mental limitations “less persuasive” because her
opinion was inconsistent with her own treatment notes and other
record evidence, reflecting (1) her conservative treatment, (2) the
moderate nature of Glover’s depression, and (3) Glover’s
1To qualify for DIB, a claimant must be disabled. 42 U.S.C. § 423(a)(1)(E);
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
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4 Opinion of the Court 22-10497
improvements in how she felt, slept, and did things around the
house.
Lastly, based on testimony from a vocational expert, the ALJ
determined that Glover could perform her past relevant work as a
parts inspector.
Glover appealed the ALJ’s decision to the Appeals Council,
which denied her request for review on September 22, 2020.
Glover sought review of the Commissioner’s final decision
in the district court, where she was represented by an attorney.
The parties consented to have a magistrate judge decide the case
pursuant to 28 U.S.C. § 636. On January 26, 2022, the magistrate
judge affirmed the Commissioner’s decision.
Glover filed a motion for a “new trial” under Federal Rule
of Civil Procedure 59. The magistrate judge (1) construed Glover’s
motion as a motion to alter or amend the January 2022 judgment,
(2) concluded that Glover was merely restating old arguments, and
(3) denied Glover’s motion.
Glover timely appealed. In her notice of appeal, Glover
designated only the January 2022 judgment, not the denial of her
Rule 59 motion.
II. STANDARD OF REVIEW
Our review in a social security case is the same as that of the
district court. Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.
1990). We review de novo the legal principles on which the ALJ’s
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22-10497 Opinion of the Court 5
decision was based. Simon v. Comm’r, Soc. Sec. Admin., 7 F.4th
1094, 1103 (11th Cir. 2021). But “[w]e may not decide the facts
anew, reweigh the evidence, or substitute our judgment for that of
the [Commissioner].” Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983). Rather, we must defer to the Commissioner’s
decision if it is supported by substantial evidence. Id.
III. DISCUSSION
In her counseled brief, Glover primarily argues the ALJ
improperly declined to apply the treating physician rule to Drs.
Smith and Khusro’s medical opinions. In conclusory fashion,
Glover also contends that the ALJ’s finding that she could perform
her past relevant work is not supported by substantial evidence and
is not in accordance with proper legal standards and that the
magistrate judge wrongly denied her Rule 59 motion.
We address the first issue, but, as explained below, we
decline to address the other two issues because they are not
adequately briefed and are thus deemed abandoned.
A. Treating Physician Rule
Before the ALJ, Glover presented evidence from her treating
physician, Dr. Smith, and her treating psychiatrist, Dr. Khusro.
The ALJ declined to apply the treating physician rule to the medical
opinions of Drs. Smith and Khusro. We readily conclude the ALJ
properly declined to apply the treating physician rule in this case.
The “treating physician rule . . . was originally developed by
Courts of Appeals as a means to control disability determinations
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6 Opinion of the Court 22-10497
by [ALJs] under the Social Security Act.” Black & Decker Disability
Plan v. Nord, 538 U.S. 822, 829, 123 S. Ct. 1965, 1969 (2003)
(citation omitted); see, e.g., Broughton v. Heckler, 776 F.2d 960,
961–62 (11th Cir. 1985). The rule instructed ALJs to defer to the
medical opinions of a social security claimant’s treating physicians.
Under that rule, an ALJ must give a treating physician’s opinion
substantial or considerable weight or articulate good cause for not
doing so. See, e.g., Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176,
1179 (11th Cir. 2011).
In 1991, the SSA promulgated a regulation that adopted the
court-made treating physician rule. Nord, 538 U.S. at 829, 123
S. Ct. at 1969; see 56 Fed. Reg. 36932, 36961 (Aug. 1, 1991). The
regulation required ALJs to “[g]enerally . . . give more weight” to
the opinions of treating physicians unless there was good cause not
to do so. 20 C.F.R. § 404.1527(d)(2) (1992); 20 C.F.R.
§ 404.1527(c)(2).
However, in 2017, the SSA eliminated the treating physician
rule. 82 Fed. Reg. 5844, 5867–68 (Jan. 18, 2017); see also Harner v.
Soc. Sec. Admin., Comm’r, 38 F.4th 892, 894 (11th Cir. 2022)
(“[T]he new regulation validly abrogated the treating-physician
rule.”). Under the new regulation, ALJs are to give no “defer[ence]
or any specific evidentiary weight, including controlling weight,”
to a treating physician’s opinion. 20 C.F.R. § 404.1520c(a). Instead,
ALJs must weigh medical opinions based on their persuasiveness.
Id.
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Today, the applicability of the treating physician rule
depends on when the claimant filed his or her application. Claims
filed before March 27, 2017 (the date in which the new regulation
took effect) are still subject to the old regulation and thus the
treating physician rule. Id. § 404.1527; Schink v. Comm’r of Soc.
Sec., 935 F.3d 1245, 1259 n.4 (11th Cir. 2019). But “claims
filed . . . on or after March 27, 2017” are subject to the new
regulation, which, as explained above, does not provide for the
treating physician rule. See 20 C.F.R. § 404.1520c.
Glover applied for DIB on September 11, 2017. Because
Glover filed her application after March 27, 2017, her claim is
governed by the new regulation.
Glover contends this Court’s precedent applying the
treating physician rule remains good law and is controlling despite
the Commissioner’s later-promulgated regulations. That
argument is foreclosed by our decision in Harner, which was issued
after briefs were filed in this case. In Harner, we concluded that
the Commissioner’s promulgation of the new regulation in
§ 404.1520c abrogated this Court’s earlier precedent establishing
and applying the treating physician rule. 38 F.4th at 896. 2
2Glover’s reliance on Simon is misplaced. In Simon, this Court applied 20
C.F.R. § 404.1527(c)(2)’s treating physician rule because the claimant’s
application was filed in March 2015. Simon, 7 F.4th at 1104 & n.4. We
explicitly declined to address in Simon “how the new regulation bears on our
precedents requiring an ALJ to give substantial and considerable weight to a
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We conclude the ALJ applied the proper legal standard by
evaluating the persuasiveness of the medical opinions of Glover’s
treating physician and psychiatrist rather than treating those
opinions as controlling under the treating physician rule. See id. at
898 (“[B]ecause [§] 404.1520 forbids [ALJs] from deferring or giving
any specific evidentiary weight, including controlling weight, to
any medical opinions, the [ALJ] did not err by declining to give
more weight to the medical opinions of Harner’s treating
physicians.” (cleaned up)).
On appeal, Glover focuses only on the ALJ’s failure to apply
the treating physician rule. She raises no substantive challenge to
the ALJ’s assessment about the persuasiveness of the medical
opinions of her treating physician and psychiatrist under the new
regulation. As a result, whether the ALJ’s evaluation complied
with the new regulation is not an issue before this Court and need
not be addressed. Access Now, Inc. v. Sw. Airlines, 385 F.3d 1324,
1330 (11th Cir. 2004) (“[A] legal claim or argument that has not
been briefed before the court is deemed abandoned and its merits
will not be addressed.”). 3
treating physician’s opinions absent good cause to do otherwise.” Id. at 1104
n.4. Harner has now resolved that issue.
3 Glover briefly argues that the magistrate judge improperly affirmed the ALJ’s
decision as to Drs. Smith and Khusro’s opinions using a post hoc
rationalization that the doctors’ opinions were on one page, fill-in-the-blank
forms. It is well-established that an ALJ cannot reject a medical opinion
because it is not in a particular format. Schink, 935 F.3d at 1261. Here, the
magistrate judge, not the ALJ, noted the format of Drs. Smith and Khusro’s
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B. Abandoned Issues
Glover abandoned her argument that the ALJ’s finding that
she could perform her past relevant work was unsupported by
substantial evidence and was not in accordance with proper legal
standards. Glover’s counseled appellate brief raised this contention
in a perfunctory manner, without advancing any specific
arguments about how the ALJ failed to support its opinion with
substantial evidence. Glover merely cites a few cases without
explaining how those decisions apply to her case. See Harner, 38
F.4th at 898–99 (concluding that the claimant “forfeited any
challenge” to aspects of the ALJ’s decision mentioned in her brief
when the claimant’s counseled brief “consist[ed] only of block
quotations from and cursory mentions of various decisions of this
and other courts” without reference to the facts of claimant’s case
and without “any meaningful explanation” about how the cited
decisions applied to her claim). Therefore, we decline to address
this issue.
opinions. This Court’s review focuses only on whether the agency decision is
supported by substantial evidence. See Crawford v. Comm’r of Soc. Sec., 363
F.3d 1155, 1158 (11th Cir. 2004) (“We review the Commissioner’s decision to
determine if it is supported by substantial evidence and based on proper legal
standards.” (quoting Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997))).
Because our review of the proceedings before the magistrate judge/district
court is de novo, we need not address the magistrate judge’s reasoning.
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10 Opinion of the Court 22-10497
Similarly, Glover abandoned her challenge to the magistrate
judge’s denial of her Rule 59 motion. Her counseled brief devoted
three sentences to this issue and set forth no argument or legal
authority. See Sapuppo v. Allstate Floridian Ins., Co., 739 F.3d 678,
681 (11th Cir. 2014) (explaining that an appellant forfeits an issue
when she “raises it in a perfunctory manner without supporting
arguments and authority”). Accordingly, we do not address this
issue either. 4
AFFIRMED.
4 As noted above, Glover’s notice of appeal designated only the January 2022
judgment, not the denial of her Rule 59 motion. However, because Glover
abandoned any issue with respect to the district court’s denial of her Rule 59
motion, we need not address whether her notice of appeal should be con-
strued to include that ruling.