In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1774

THEODIS NELMS, JR.,

Plaintiff-Appellant,

v.

MICHAEL J. ASTRUE,

Defendant-Appellee.

Appeal from the United States District Court 

for the Eastern District of Wisconsin.

No. 2:06-cv-00273-CNC—Charles N. Clevert, Jr., Judge.

ARGUED OCTOBER 16, 2008—DECIDED JANUARY 28, 2009

Before RIPPLE, EVANS, and TINDER, Circuit Judges.

TINDER, Circuit Judge. Theodis Nelms, Jr., sought Social

Security disability benefits, but an administrative law

judge determined that he can perform light work. On

appeal Nelms, who was without counsel before the ALJ,

contends that the ALJ did not adequately develop the

record in violation of his duty to unrepresented claimants.

Additionally, Nelms argues that the ALJ ignored certain

environmental restrictions when assessing Nelms’s resid-
2 No. 08-1774

ual functional capacity. We agree with Nelms that the

record is inadequate and therefore remand for further

proceedings before the agency.

Background

Nelms applied for Supplemental Security Income

benefits in June 2002. He listed as impairments pneumonia,

recovery from open-heart surgery, and asthma. In his

application Nelms wrote, “If I walk, lift or do anything too

strenuous I get out of breath.” After the Social Security

Administration twice denied his application, Nelms

requested a hearing.

A. Hearing

Nelms appeared at his hearing in June 2005 without

counsel. After a few questions about Nelms’s work history,

the ALJ addressed the possibility of representation,

explaining that “I don’t give somebody credit just because

they have an attorney”; still, the ALJ continued, the

Social Security Administration believes “that having an

attorney is a good idea.” The ALJ explained the role of an

attorney but also noted the ALJ’s independent duty to

create a record:

I think the thinking must be that an attorney can

talk to you, keep you company at the hearing, ask

additional questions when I’m done, look over

your file, see if it looks reasonably complete and so

on. It looks pretty complete. You’ve brought in
No. 08-1774 3

additional information here and so on. We do

much of that anyway.

After the ALJ described the costs typically associated with

an attorney in the Social Security setting, Nelms replied,

“I’d rather talk to you.”

Proceeding with the hearing, the ALJ asked Nelms to

rank his medical problems. Nelms stated that his heart

was the worst, followed by his back, his legs, and his

asthma, in that order. Regarding his heart Nelms explained, “I have shortness of the breath and, you know,

that also happen[s] with asthma and plus they cut me

open. I got a stent in my heart, you know.” Nelms described an inability to sleep at night because of severe

pain, which he believes to be the onset of arthritis. Nelms

also reported that his doctor had prescribed Methadone

to alleviate the pain in his back and in his legs, although

the medication was “not helping that much.” Nelms

testified, moreover, that he experiences soreness in his

lower back “[a]ll day every day,” with a brief respite

only immediately after taking the medication. As for his

respiratory problems, Nelms mentioned that his asthma

strikes when he is near dust or pollen outside and when

he is hot or cold. Nevertheless, Nelms exercises and

walks every day per his doctor’s instructions, albeit with

limitations. “I can walk probably about a good two

blocks before I really get messed up,” Nelms testified, “but

here lately, you know, since I’ve been hurting, you know,

I can’t walk half a block.” Furthermore, Nelms stated

that since surgery he has done “little odd jobs,” including

raking leaves and shoveling snow. Nelms described his
4 No. 08-1774

daily activities in detail—how each morning he cooks

himself breakfast, cleans up, goes for a walk, does

laundry, and, later, perhaps goes to the grocery store

with his step-mother before cooking himself dinner.

Although Nelms “used to party a lot,” he testified that

his drinking is down to two or three beers each day and

he is generally home by 9:00 p.m.

After approximately twenty minutes of questioning,

the ALJ remarked, “I can’t think of anything else to ask.

Anything else I should know?” Nelms clarified a few

points about his education and work history, and with

that the hearing ended.

B. Medical Evidence

In May 2002 Nelms was admitted to a hospital in Milwaukee, Wisconsin, after he was found unresponsive

in his home. He was diagnosed with pneumonia, respiratory failure, overheating (hyperthermia), inflammation

of the heart (endocarditis), delirium likely caused by

alcohol withdrawal (delirium tremens), an abnormally

low concentration of sodium in the blood (hyponatremia),

and low blood pressure (hypotension). During his

hospital stay, Nelms’s doctors replaced his mitral valve (a

heart valve) with a mechanical substitute, and the

surgery was a success. Nelms was discharged from the

hospital in June 2002.

Over the next four months Nelms attended

cardiopulmonary rehabilitation sessions, where he would

walk on a treadmill, lift weights, and ride a stationary
No. 08-1774 5

bicycle. The parties agree that “Mr. Nelms generally

tolerated the exercises well.”

In December 2002 Dr. Patricia Chan, a non-examining

state-agency physician, assessed Nelms’s residual functional capacity. Dr. Chan opined that Nelms could

perform the lifting, sitting, and standing exertions associated with light work.

Nelms was hospitalized again in March 2003—this time

for intra-abdominal bleeding, over-anticoagulation, and

kidney failure (renal insufficiency) resulting from a

mixture of alcohol and prescription anticoagulants. He

was discharged one week later with instructions to

abstain from alcohol and “not to double dose.”

Five months later Dr. Robert Callear, another nonexamining state-agency physician, assessed Nelms’s

residual functional capacity. Like Dr. Chan, Dr. Callear

concluded that Nelms could perform the duties

associated with light work. Dr. Callear did note, however,

that Nelms should avoid concentrated exposure to

fumes, odors, dust, gases, and poor ventilation.

From 2002 to 2003 Nelms met with a number of other

doctors, often to seek pain relief or for check-ups related

to his surgery. Of those visits, two appear to be significant. In April 2003 Dr. Ijaz Malik reported that Nelms

was not yet ready to return to work following

several episodes of internal bleeding. And in May 2003

Dr. Marcin Turecki prescribed a stronger prescription

pain medication when Tylenol proved insufficient to

treat Nelms’s back pain.
6 No. 08-1774

The record is silent on Nelms’s condition from mid-2003

to 2005 (his hearing date) with one exception—a four-line

report from Nelms’s primary-care physician, Dr. Pablo

Bozovich, dated April 2005. Dr. Bozovich wrote that

Nelms’s condition is “stable” with respect to his mitralvalve replacement. Furthermore, Dr. Bozovich noted,

Nelms suffers from mild spinal stenosis and chronic back

pain, but his pain is “controlled w/ oral medication,” and

his asthma is stable as well. 

C. ALJ Decision

The ALJ began his written decision by acknowledging

that Nelms had not engaged in substantial gainful activity

since his alleged onset date. Still, the ALJ noted that

Nelms’s heart surgery went “beautifully well,” that his

rehabilitation indicated a smooth recovery, and that his

complaints of debilitating pain were sporadic. According

to the ALJ, the medical record documented steady improvement since Nelms’s hospitalization in 2002:

[The record] paints a picture of a bad medical

episode in the Spring of 2002, which lasted much

less than a year. It also paints a picture of recovered capacity for work even with the continued

substance abuse and paints a picture of a situation

well within the scope of the light capacity vocational rules. It also shows strong causal contributions of substance abuse to the claimant’s reduced

condition but not anything like a disabling condition even with the substance abuse. More than that,
No. 08-1774 7

the record shows that, were the claimant not to

drink and not to smoke, to follow a better diet, and

to use his medicines as prescribed, his capacity

might even approach full medium exertional

levels. 

The ALJ compared the favorable reports of Drs. Chan and

Callear with the lesser capacity alleged by Nelms but

discounted Nelms’s testimony because “he is not very

credible.” Nelms’s testimony regarding his symptoms

was unconvincing and inconsistent, the ALJ wrote. According to the ALJ, Nelms’s resistance to medical advice

and his continued drinking—however reduced—also

undermined his claim.

Ultimately the ALJ agreed with Nelms that his heart

condition, his asthma, his alcohol abuse, and his back pain

are severe impairments—but these impairments do not,

according to the ALJ, meet or otherwise equal a listed

impairment. Next the ALJ found that Nelms cannot

perform any of his past relevant work, which was “medium or greater in exertional demands and had other

demands.” But, the ALJ continued, Nelms retains the

residual functional capacity “for a full range or nearly

full range of light jobs and for some medium jobs at

the exertionally lower end of the medium range.”

The ALJ concluded that Nelms’s asthma does not

prevent him from light work because it is “slight” and not

a “significant environmental impairment.” Nelms listed

his asthma as the least significant of his impairments.

And it is not a new problem, according to the ALJ, nor

did it prevent Nelms from working in the past. The ALJ
8 No. 08-1774

did, however, acknowledge that heat and some outdoor

conditions can aggravate Nelms’s condition. “[E]ven if

the claimant should avoid outdoor work on warm,

humid days or avoid work in hot work places,” the ALJ

wrote, “nevertheless the sedentary and light categories

of work contain great numbers of jobs and many occupational opportunities still open to the claimant.” Thus, the

ALJ found that Nelms is not disabled on account of his

ability to perform light work found in the national economy.

The Appeals Council denied Nelms’s subsequent

request for review. The district court affirmed the decision of the Commissioner.

Analysis

If the Appeals Council denies a request for review, as it

did here, the ALJ’s decision becomes the final decision

of the Commissioner of Social Security. Getch v. Astrue,

539 F.3d 473, 480 (7th Cir. 2008). This court will reverse

an ALJ’s denial of disability benefits only if the decision is

not supported by substantial evidence or is based on an

error of law. 42 U.S.C. § 405(g); Skinner v. Astrue, 478

F.3d 836, 841 (7th Cir. 2007); Rice v. Barnhart, 384 F.3d 363,

368-69 (7th Cir. 2004). Substantial evidence includes

“such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Richardson v.

Perales, 402 U.S. 389, 401 (1971) (citation and quotation

marks omitted); see Getch, 539 F.3d at 480.

Nelms first asserts that the ALJ did not adequately

develop the record—an obligation that was heightened by
No. 08-1774 9

Nelms’s decision to proceed without counsel. In particular

Nelms takes issue with the absence, save for Dr. Bozovich’s

note, of any medical records from mid-2003 to 2005—a

period in which, Nelms argues, some of his impairments

worsened. Medical documents from that period, Nelms

contends, attest to severe degenerative changes in

Nelms’s back and hips and “strongly support” a finding of

disability. Nelms also points to the length of the hearing—25 minutes—as further proof that the ALJ did not

fully and fairly develop the record in this case.

While a claimant bears the burden of proving disability,

the ALJ in a Social Security hearing has a duty to develop

a full and fair record. See Smith v. Apfel, 231 F.3d 433, 437

(7th Cir. 2000); Thompson v. Sullivan, 933 F.2d 581, 585

(7th Cir. 1991). This duty is enhanced when a claimant

appears without counsel; then the ALJ must “ ‘scrupulously and conscientiously [ ] probe into, inquire of, and

explore for all the relevant facts.’ ” Thompson, 933 F.2d at

585-86 (quoting Smith v. Sec. of Health, Educ. & Welfare, 587

F.2d 857, 860 (7th Cir. 1978)); see Nelson v. Apfel, 131 F.3d

1228, 1235 (7th Cir. 1997). Although pro se litigants must

furnish some medical evidence to support their claim, see

Johnson v. Barnhart, 449 F.3d 804, 808 (7th Cir. 2006), the

ALJ is required to supplement the record, as necessary, by

asking detailed questions, ordering additional examinations, and contacting treating physicians and medical

sources to request additional records and information.

20 C.F.R. §§ 416.912(d)-(f), 416.919, 416.927(c)(3); see Reefer

v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003) (holding 700-

page record inadequate because it lacked detail about

certain impairments); Thompson, 933 F.2d at 587.
10 No. 08-1774

This court generally upholds the reasoned judgment of

the Commissioner on how much evidence to gather, even

when the claimant lacks representation. See Luna v. Shalala,

22 F.3d 687, 692 (7th Cir. 1994); Binion v. Shalala, 13 F.3d

243, 246 (7th Cir. 1994). Accordingly, “a significant omission is usually required before this court will find that

the [Commissioner] failed to assist pro se claimants in

developing the record fully and fairly.” Luna, 22 F.3d at

692. And an omission is significant only if it is prejudicial.

See Nelson, 131 F.3d at 1235. “Mere conjecture or speculation that additional evidence might have been obtained

in the case is insufficient to warrant a remand.” Binion,

13 F.3d at 246. Instead a claimant must set forth

specific, relevant facts—such as medical evidence—that the

ALJ did not consider. Nelson, 131 F.3d at 1235; see Binion,

13 F.3d at 245 (“Prejudice may be demonstrated by showing that the ALJ failed to elicit all of the relevant information from the claimant.”); Echevarria v. Sec’y of Health &

Human Servs., 685 F.2d 751, 755 (2d Cir. 1982) (significant

gaps in the record may preclude a fair and adequate

hearing).

Nelms argues that the two-year evidentiary gap is a

significant omission, and we agree. Nelms filed, in this

court, a separate appendix of medical records from 2003,

2004, and 2005 for the limited purpose of demonstrating

prejudice. That appendix contains various examination

reports and diagnoses from the same Wisconsin hospital

where Nelms had his surgery. The documents, moreover,

support Nelms’s theory that the ALJ likely would have
No. 08-1774 11

The government accuses Nelms of “selectively omitt[ing]” 1

some medical evidence from 2003 to 2005 that suggests that

his back pain was manageable (with medication). But that

charge is baseless, and it misses the point. Nelms does not

purport to enter new evidence into the record at this stage;

rather, he furnishes just enough evidence to establish that the

ALJ did not fulfill his duty to create a fair and full record—one

that will include both favorable and unfavorable information once complete.

found Nelms disabled had he considered them —or even 1

if he had simply asked more questions about recent

developments. See Binion, 13 F.3d at 246. For example, a

CT scan in January 2004 revealed, for the first time, degeneration of Nelms’s thoracic and lumbar spine with a

“diffuse disk bulge” and “posterior spurring.” Although

subsequent notes convey that Nelms “has good control [of

his back pain] with Ultran 50 mg once daily as needed”

and “this pain is getting better,” Nelms later reported that

“[i]t is worse when [he] sits and gets better when he

stands up.” And by February 2005, Nelms’s back pain was

acute, “especially when he stands up. He feels weak,

especially when he has to do that. . . . This is due to disc

disease.” Moreover, Nelms began to experience a

limited range of motion in his hips sometime in 2004,

which turned out to be from “[s]evere degenerative

changes of both hips.” An examination revealed “severe

joint space narrowing, along with spurring of the

femoral head” in Nelms’s left hip, as well as “marked

joint space narrowing, along with femoral spurring” in

Nelms’s right hip.
12 No. 08-1774

These are precisely the sort of specific, relevant facts that

an ALJ is expected to consider when determining

disability in a pro se claimant. See Binion, 13 F.3d at 246.

No doubt a “complete” record is always elusive, see Johnson, 449 F.3d at 808; Luna, 22 F.3d at 692; Kendrick v. Shalala,

998 F.2d 455, 456-57 (7th Cir. 1993), and there is no

absolute requirement that an ALJ update the medical

records to the time of the hearing, see Luna, 22 F.3d at 692-

93. But here the ALJ was aware that Nelms was still

receiving treatment in 2005 and that his back pain was

severe and continuing. His leg pain persisted as well. Yet

the ALJ did not probe, in any depth, Nelms’s recent past

at the hearing or gather any medical evidence to fill

the two-year gap in the record. Had the ALJ done so, he

would have uncovered documentation of orthopedic

decline. This is particularly troubling in light of the ALJ’s

assurances that he would independently assemble a

“reasonably complete” record. Unlike in previous cases,

this was not a “marginal hearing” that nevertheless

provided “a fairly complete picture” of Nelms’s impairments. See Nelson, 131 F.3d at 1236. Nor was it a situation in which an unrepresented claimant reassured the

ALJ that no additional medical records exist. See Johnson,

449 F.3d at 808. Thus, we cannot say that the ALJ adequately developed the record.

There is a secondary matter that also deserves comment. Nelms also argues that the ALJ did not consider the

combined effects of Nelms’s impairments when determining disability. He asserts in his brief, “it was illogical

for the ALJ to on one hand find Plaintiff’s asthma was a

severe impairment, but on the other hand, include no

symptoms or limitations related to asthma in Plaintiff’s
No. 08-1774 13

RFC.” Nelms insists further that “the ALJ included no

environmental restrictions in[ ] Plaintiff’s residual functional capacity assessment.” But the ALJ’s opinion devotes

considerable attention to Nelms’s respiratory limitations—and concludes that “even if the claimant should

avoid outdoor work on warm, humid days or avoid work

in hot work places, nevertheless the sedentary and light

categories of work contain great numbers of jobs and

many occupational opportunities still open to the claimant.” To this Nelms offers essentially two responses: first,

that the ALJ should have explicitly addressed his need to

avoid concentrated exposure to dust, pollen, fumes, odors,

and gases, and second, that the ALJ could not assume

that such jobs exist without the assistance of a vocational

expert.

Nelms’s arguments on this point are unpersuasive. The

ALJ pressed Nelms on his environmental restrictions at

length—and Nelms himself emphasized that his asthma

manifests when he is exposed to dust and pollen outside.

When it does, Nelms overheats, and his solution is to go

inside. The ALJ’s discussion of restrictions on outside

work in warm environments speaks directly to these

respiratory limitations, and it is clear from the record

that the ALJ considered Nelms’s environmental restrictions in tandem with his other impairments. See Getch,

539 F.3d at 481 (ALJ does not have to provide complete

written evaluation of every piece of testimony and evidence).

Nelms cites Warmoth v. Bowen, 798 F.2d 1109 (7th Cir.

1986), in support of his argument that a vocational expert

was needed. In Warmoth this court rejected an ALJ’s
14 No. 08-1774

conclusory determination that most sedentary jobs do

not expose workers to any environmental irritants. Id. at

1110. After an accident in which an industrial machine

spilled toxic chemicals on his face, Warmoth was unable

to tolerate even the slightest amount of second-hand

smoke or perfume. Id. at 1110-11. Notably, though, this

court did not require that the ALJ consult a vocational

expert on remand: “we only require that there be

reliable evidence of some kind that would persuade a

reasonable person that the limitations in question do not

significantly diminish the employment opportunities

otherwise available.” Id. at 1112; see also 20 C.F.R.

§ 416.966(e); Binion, 13 F.3d at 246 (explaining that use of

a vocational expert is discretionary).

This case is not so severe. In essence the ALJ assumed

that some light work exists in the national economy that

does not present a threat of concentrated exposure to

dust, pollen, fumes, gases, odors, or poor ventilation. Of

course, a vocational expert would be uniquely qualified to

answer this question—and the ALJ may wish to enlist

one on remand—but the ALJ’s assumption alone is not so

outlandish as to warrant reversal. See Luna, 22 F.3d at

691 (“this court has said that in cases where a nonexertional limitation might substantially reduce a range

of work an individual can perform, the ALJ must consult

a vocational expert.”) (emphasis added); Social Security

Ruling 85-15, 1985 WL 56857, at *8 (Nov. 30, 1984) (“Where

a person has a medical restriction to avoid excessive

amounts of noise, dust, etc., the impact on the broad world

of work would be minimal because most job environments do not involve great noise, amounts of dust, etc.”)

(emphasis added).
No. 08-1774 15

So, although the ALJ’s treatment of the combined effects

of Nelm’s impairments does not justify reversal, his

failure to develop the record as discussed above does.

Therefore, because substantial evidence does not support

the ALJ’s decision, we REVERSE the judgment of the

district court and REMAND for further proceedings

before the agency.

RIPPLE, Circuit Judge, concurring. I am pleased to join the

judgment and the comprehensive opinion of the court.

I write separately simply to underline the inherent unfairness in the ALJ’s having assured Mr. Nelms that the

judge had an independent responsibility to develop the

record and then leaving such a wide gap in the development of the relevant medical history.

Although the cold record is difficult to assess on this

matter, I am concerned here that the ALJ’s colloquy with

Mr. Nelms may well have had the unintentional effect of

dissuading him from retaining counsel. An ALJ must be

very circumspect, and even-handed, in his advice to a

litigant and, here, Mr. Nelms may well have interpreted

the ALJ’s advice as expressing the ALJ’s personal view that

no attorney was needed.

1-28-09