Eddie J. Hightshoe v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 19, 2023
Decided May 18, 2023
Before
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 22-2359
EDDIE J. HIGHTSHOE,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 3:21-cv-00031-bbc
Barbara B. Crabb,
Judge.
O R D E R
Plaintiff-appellant Eddie J. Hightshoe suffered serious injuries on February 15,
2017, when his car was hit by a logging truck. Before the accident, Hightshoe had a
steady employment history, working first at a family restaurant, then as a police officer,
and finally—at the time of the accident—as a business development associate, a job that
required hours of driving and computer work. The accident left Hightshoe with an
injured right shoulder and a concussion caused by traumatic brain injury. Hightshoe
would not work again for more than two and a half years.
Surgery and physical therapy helped with the shoulder, but Hightshoe
continued to experience post-concussive symptoms, including headaches, vertigo,
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

-- 1 of 5 --

No. 22-2359 Page 2
insomnia, poor concentration, tinnitus, depression, and fatigue. For eighteen months
following the accident, Hightshoe sought help with these symptoms from a cadre of
medical professionals. His providers prescribed several medications, as well as
physical, rehabilitative, and occupational therapy. By all accounts, Hightshoe embraced
his treatment and approached his challenges with admirable motivation and optimism.
In November 2019, Hightshoe was finally able to return to work, taking a job as a
management trainee at a convenience store so that he could provide health insurance
for his daughter. He worked in that job for about five months before leaving of his own
accord.
In April 2018, Hightshoe applied for disability insurance benefits under the
Social Security Act. He had a hearing before an administrative law judge in February
2020. The judge denied his claim, finding that Hightshoe suffered from severe
impairments and would be unable to perform his previous jobs, but that he had the
residual functional capacity to adjust successfully to other kinds of work. The Appeals
Council denied Hightshoe’s request for review, and the district court affirmed the
judge’s decision.
Hightshoe argues in this appeal that the judge improperly weighed the medical
opinion evidence and conducted a “problematic” credibility assessment. In other
words, he does not argue that the judge committed a discrete or specific legal error, but
only more generally that the judge’s decision was not based on substantial evidence.
“Substantial evidence” means that the judge’s decision is grounded in “such relevant
evidence as a reasonable mind might accept as adequate to support” the decision.
Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019), quoting Consol. Edison Co. v. N.L.R.B., 305
U.S. 197, 229 (1938); 42 U.S.C. § 405(g) (statutory standard for judicial review). The
judge need not “address every piece of evidence,” but the judge “must build an
accurate and logical bridge from the evidence to his conclusion” and “articulate some
legitimate reason for his decision.” Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
First, Hightshoe argues that the judge improperly weighed the medical opinions
of one of his treating physicians, Dr. Timothy Morton, who saw Hightshoe a number of
times for treatment after the accident. In October 2018, Dr. Morton completed a “Report
of Work Ability” in which he opined that Hightshoe should not work until reevaluated
because his concussive symptoms were “not improving.” It is not unusual for doctors to
offer such bottom-line answers when they are asked to opine on a patient’s ability to
return to work, but the judge correctly observed that—in the technical world of Social
Security disability claims—whether a claimant can work is a legal conclusion “reserved

-- 2 of 5 --

No. 22-2359 Page 3
to the Commissioner.” 20 C.F.R. § 404.1527(d)(2); Thomas v. Colvin, 745 F.3d 802, 808 (7th
Cir. 2014).
Hightshoe argues, however, that the judge improperly disregarded Dr. Morton’s
entire opinion simply because his report “mentions ability to work.” We read the
decision differently. The judge found Dr. Morton’s pessimistic work assessment “not
persuasive” because it was inconsistent with both Dr. Morton’s most recent clinical
impression that Hightshoe’s functioning was “normal” and with other evidence in the
record addressing Hightshoe’s daily activities. The fact that Hightshoe had been
successfully caring for his daughter, doing household chores, volunteering in the
community, and working at the convenience store weighed against Dr. Morton’s work
assessment. The judge also observed that Dr. Morton’s assessment was inconsistent
with the “minimal” treatment Hightshoe was receiving.
Nor did the judge, as Hightshoe argues, rely “solely on a single examination” by
Dr. Morton or ignore the fact that Hightshoe has “good days” and “bad days.” The
judge considered Dr. Morton’s reports from multiple examinations, and the judge
expressly recognized that Hightshoe’s symptoms “wax and wane.”
Hightshoe also criticizes the judge for failing to account for the difference
between his “daily activities in his own home and at his own pace” and the activities of
“a competitive work environment.” It is true that the ability to perform daily activities
does “not necessarily establish that a person is capable of engaging in substantial
physical activity.” Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir. 2009) (“The ALJ should
have explained any inconsistencies between [claimant’s] activities of daily living and
the medical evidence.”). See also Clifford, 227 F.3d at 872 (performance of “minimal
daily activities” insufficient to discount complaints of “disabling pain”). And an
administrative law judge must be careful not to equate daily “activities with the
challenges of daily employment in a competitive environment.” Beardsley v. Colvin, 758
F.3d 834, 838 (7th Cir. 2014); see also Mendez v. Barnhart, 439 F.3d 360, 362 (7th Cir. 2006)
(“The pressures, the nature of the work, flexibility in the use of time, and other aspects
of the working environment as well, often differ dramatically between home” and work
environments.). But a judge is nonetheless required to consider daily activities in
assessing a claimant’s residual functional capacity. 20 C.F.R. § 404.1529(c)(3)(i) (in
“determining the extent to which your symptoms limit your capacity for work …
Factors relevant to your symptoms, such as pain, which we will consider include …
Your daily activities”); Beardsley, 758 F.3d at 838 (“[I]t is proper … to consider a
claimant’s daily activities in judging disability.”).

-- 3 of 5 --

No. 22-2359 Page 4
In this case, the judge considered Hightshoe’s daily activities together with his
ability to work at the convenience store for five months. The judge did not make the
sort of mistake we identified in Stewart, Clifford, Beardsley, and Mendez of giving undue
weight to the daily activities of life, performed under circumstances so different from
those of full-time work in the competitive economy.
Hightshoe also asserts that the judge “failed to develop the record” regarding
why Hightshoe gave up his job at the convenience store. There was no error here. The
judge contacted Hightshoe’s employer for more information. The employer did not
indicate any dissatisfaction with Hightshoe’s work performance. Hightshoe’s own letter
of resignation said only that he was leaving his job due to “personal issues.” We also
reject Hightshoe’s assertion that the judge erred by failing to treat the convenience-store
job as an “unsuccessful work attempt” under 20 C.F.R. § 404.1574(c). That regulation
requires that the claimant have stopped working because of either the claimant’s
impairment or “the removal of special conditions that took into account” the
impairment. 20 C.F.R. § 404.1574(c)(3). “Personal issues” simply do not satisfy the
regulations.
Hightshoe also criticizes the judge’s credibility assessment, which found that
Hightshoe’s account of his work at the convenience store was inconsistent with the
objective evidence and that Hightshoe’s account of his symptoms was inconsistent with
medical observations. We “will uphold an ALJ’s credibility determination” regarding
the claimant’s subjective symptoms “unless that determination is ‘patently wrong.’”
Wilder v. Kijakazi, 22 F.4th 644, 653 (7th Cir. 2022), quoting Stepp v. Colvin, 795 F.3d 711,
720 (7th Cir. 2015). Hightshoe argues that the judge wrongly ignored evidence that he
(1) is not a malingerer, (2) took frequent breaks and moved slowly through his daily
activities, and (3) avoided actually working much while at the convenience store.
Hightshoe also thinks the judge overvalued his lack of symptoms during his medical
appointments. None of these arguments is persuasive.
The administrative law judge recognized that Hightshoe’s “solid work history”
was a “positive and probative” factor. The judge also accounted for the pace at which
Hightshoe approached his daily activities. The fact that the judge found that some of
Hightshoe’s activities—like hiking, watching movies, and going on excursions with his
daughter—were inconsistent with his claim that he could not “sustain any
concentration for tasks” does not mean that the judge ignored contrary evidence. It
means only that the judge weighed conflicting evidence. Nor did the judge ignore
Hightshoe’s account of his work at the convenience store. The judge simply found that

-- 4 of 5 --

No. 22-2359 Page 5
other evidence, including the fact that Hightshoe “consistently worked approximately
90 hours every two weeks,” ran contrary to his narrative of complete inability to do full-
time work.
Finally, while the administrative law judge thought it significant that
Hightshoe’s doctors and therapists “often did not observe the severity” of symptoms he
claims, the judge did not, as Hightshoe contends, discount his testimony solely on this
basis. Rather, the judge found that the totality of the evidence—including Hightshoe’s
daily activities, his apparently successful work at the convenience store, his “minimal
treatment,” and the results of objective testing—was inconsistent with some of the more
serious restrictions and symptoms Hightshoe claimed. In short, the judge did not make
legal errors or ignore or overvalue any evidence. Hightshoe simply wishes that the
judge had weighed that evidence differently and arrived at a different conclusion.
The Social Security Act defines “disability” as an “inability to engage in any
substantial gainful activity by reason of any medically determinable” impairment that
can be expected to last for twelve continuous months. 42 U.S.C. § 423(d)(1)(A). A
claimant must show that his impairments are of such severity that he is unable to
perform work that he has done previously and that, based on his age, education, and
work experience, he could not engage in any other kind of substantial work existing in
the national economy, regardless of whether such work is actually available to him. 42
U.S.C. § 423(d)(2)(A). This standard is a stringent one. These benefits are paid for with
taxes, including taxes paid by many people who work despite serious physical or
mental impairments and for whom working is quite difficult and painful, as it has been
for Mr. Hightshoe since his accident. Before tax dollars are available to support
someone applying for benefits, it must be clear that the claimant has a severe
impairment and cannot perform virtually any kind of work. Unlike many private
disability insurance plans, the Act does not contemplate degrees of disability or allow
for an award based on partial disability. Stephens v. Heckler, 766 F.2d 284, 285 (7th Cir.
1985) (“A person is ‘disabled’ or not; there are no degrees.”). Also, unlike with many
private disability insurance plans, a person may not be disabled under the Act even if
he is no longer able to perform his past work. Under this statutory standard, these
benefits are available only as a matter of nearly last resort.
Hightshoe is not malingering. He has shown a strong work ethic and a positive
approach to his difficulties. But substantial evidence supported the administrative law
judge’s finding that Hightshoe could adapt to new kinds of work. We therefore
AFFIRM the judgment of the district court.

-- 5 of 5 --