In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-3084
ERIK D. BERTAUD,
Plaintiff-Appellant,
v.
MARTIN J. O’MALLEY,
Commissioner of Social Security,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 20-cv-01818-bhl — Brett H. Ludwig, Judge.
____________________
ARGUED NOVEMBER 28, 2023 — DECIDED DECEMBER 21, 2023
____________________
Before EASTERBROOK, HAMILTON, and BRENNAN, Circuit
Judges.
BRENNAN, Circuit Judge. The Commissioner of the Social
Security Administration denied Erik Bertaud’s application for
disability insurance benefits and supplemental security in-
come. He asked the district court to overturn that decision,
pointing to 800 pages of new medical evidence as proof that
the administrative law judge failed to develop the record. The
2 No. 22-3084
district court agreed with the Commissioner, and Bertaud
asks us to reverse.
Although an ALJ does have a duty to develop the record,
that duty is limited when an attorney represents the claimant
during the benefits hearing. Not only was Bertaud repre-
sented, but at the hearing his attorney confirmed that the
evidence was complete. The district court properly denied
Bertaud’s motion for summary judgment and affirmed the
Commissioner’s decision.
I.
On May 2, 2013, a 100-pound tree branch fell 60 feet onto
Erik Bertaud’s head. He suffered serious injuries. With the as-
sistance of counsel, he filed a claim for disability insurance
benefits and supplemental security income with the Social Se-
curity Administration. An administrative law judge denied
his claim. Bertaud sought relief and the Appeals Council re-
manded. An ALJ denied his claim again, Bertaud appealed
once again, and the Appeals Council remanded once more.
An ALJ denied Bertaud’s claim a third time on April 8,
2020, concluding that, under the Social Security Act, Bertaud
was not disabled. Bertaud again appealed to the Appeals
Council, but this time, it denied his request for review, so the
ALJ’s April 8 order became the final decision of the Commis-
sioner.
Bertaud then sought judicial review. Before the district
court, he argued that the ALJ failed to develop the record of
his disability, citing more than 800 pages of supplemental
medical records as proof. The court denied Bertaud’s motion
for summary judgment and affirmed the Commissioner’s de-
cision. Bertaud was represented throughout the process, his
No. 22-3084 3
lawyer confirmed that the record was complete, and his law-
yer supplemented the record when necessary. Thus, the court
determined that the ALJ did not fail to develop Bertaud’s
medical record. Bertaud appealed.
II.
When a district court affirms the Commissioner’s final de-
cision, we review the district court’s decision de novo. Mar-
tinez v. Kijakazi,
71 F.4th 1076, 1079 (7th Cir. 2023). We review
the ALJ’s conclusions of law de novo and determinations of
fact deferentially.
Id. If there is substantial evidence support-
ing the ALJ’s decision, we affirm.
Id.
An ALJ in a benefits hearing “has a duty to develop a full
and fair record.” Nelms v. Astrue,
553 F.3d 1093, 1098 (7th Cir.
2009). Under agency regulations, the claimant has the princi-
pal duty to submit evidence relating to the disability claim.
See
20 C.F.R. § 404.1512(a)(1) (2023). The claimant’s duty is
“ongoing” and covers “any additional related evidence about
which [he] become[s] aware.”
Id. The ALJ’s duty is supple-
mental. See § 404.1512(b)(1). The ALJ makes an initial request
and, if necessary, a follow-up request for records dating back
to one year before the claimant filed his application. See id.;
§ 404.1512(b)(1)(i) & (ii).
This duty is tethered to a claimant’s legal representation,
but the regulations prevent it from receding completely. It is
higher when the claimant is not represented by counsel. See
Skinner v. Astrue,
478 F.3d 836, 842 (7th Cir. 2007). In 1978, this
court, reversing a benefits denial, explained that because
“hearings on disability claims are not adversary proceed-
ings,” the ALJ is duty-bound to help unrepresented claimants
“explore for all the relevant facts … .” Smith v. Sec'y of Health,
4 No. 22-3084
Ed. & Welfare,
587 F.2d 857, 860 (7th Cir. 1978) (quotations
omitted). So, when a claimant appears pro se, the ALJ, under
the heightened duty, must “‘probe[] the claimant for possible
disabilities and uncover[] all of the relevant evidence.’” Jozefyk
v. Berryhill,
923 F.3d 492, 497 (7th Cir. 2019) (quoting Binion v.
Shalala,
13 F.3d 243, 245 (7th Cir. 1994) (citing Smith,
587 F.2d
at 860)).
The duty is lower when a lawyer makes the claimant’s
case for him. See Skinner,
478 F.3d at 842. This supplement to
the Smith rule arrived by 1988, when a represented claimant
challenged the denial of disability benefits on duty-to-de-
velop grounds. See Ray v. Bowen,
843 F.2d 998, 999–1000 (7th
Cir. 1988). As in Smith, representational status moderated the
ALJ’s responsibility: “‘[w]hen an applicant for Social Security
benefits is represented by counsel [the Secretary] is entitled to
assume that the applicant is making his strongest case for ben-
efits.’”
Id. at 1006 (quoting Glenn v. Sec'y of Health & Hum.
Servs.,
814 F.2d 387, 391 (7th Cir. 1987)) (alterations in origi-
nal).
Further, regardless of whether the claimant is represented
by counsel, the reviewing court defers to the ALJ on the ques-
tion of how much evidence must be gathered. Nelms,
553 F.3d
at 1098 (citing Luna v. Shalala,
22 F.3d 687, 692 (7th Cir. 1994)
(citing Kendrick v. Shalala,
998 F.2d 455, 458 (7th Cir. 1993))).
Deference comes from the practical reality that “no record is
‘complete’—one may always obtain another medical exami-
nation, seek the views of one more consultant, wait six
months to see whether the claimant’s condition changes, and
so on.” Kendrick,
998 F.2d at 456–57.
Applying the regulations and the record-volume defer-
ence rule, this court in Flener ex rel. Flener v. Barnhart rejected
No. 22-3084 5
a represented claimant’s duty-to-develop claim.
361 F.3d 442,
448–49, 446 (7th Cir. 2004). Because there was enough evi-
dence before the ALJ to support his conclusion, the ALJ did
not err by failing to develop the record further.
Id. at 448. Dis-
cussing agency regulations, the court noted that the claimant
has “the primary responsibility for producing medical evi-
dence demonstrating the severity of impairments.”
Id. (citing
20 C.F.R. § 416.912(c) (2000)).
In sum, a represented claimant will not succeed on a duty-
to-develop claim by arguing merely that the ALJ should have
uncovered missing evidence or sought out all possible disa-
bilities. See Jozefyk,
923 F.3d at 497. Neither will the claimant
succeed by arguing the ALJ could have gathered more
evidence, unless the ALJ did not meet the regulatory require-
ment. See Nelms,
553 F.3d at 1098. And once the ALJ reasona-
bly decides that “further development” of key issues is not
necessary, the ALJ’s decision to go no further is not a breach
of duty. Flener,
361 F.3d at 448. †
III.
Bertaud says the ALJ should have inquired about the gap
in the record because the gap indicated that more records ex-
isted. The ALJ was not duty-bound to investigate this gap.
First, an attorney represented Bertaud before the ALJ, so the
ALJ’s duty to inquire was lessened. See Skinner,
478 F.3d at
842. We presume the attorney made Bertaud’s best case before
the ALJ.
Id. Indeed, at the hearing, the ALJ asked Bertaud’s
† Between them, the parties have cited to us nine nonprecedential dis-
positions from this court. Nonprecedential dispositions are not binding
precedent. See 7TH CIRC. R. 32.1. If an issue has few published opinions,
we encourage litigants to invite us to issue one.
6 No. 22-3084
counsel whether he had a chance to review the exhibits. Ber-
taud’s counsel responded: “Yes, I have and they are complete
to the best of my knowledge.” The ALJ was entitled to con-
clude that additional development of the issues was unneces-
sary. See Flener,
361 F.3d at 448.
We therefore AFFIRM the district court’s decision denying
Bertaud’s motion for summary judgment and affirming the
decision of the Commissioner.
