Sheryl Smith Schoenfeld, for herself v. Kenneth S. Apfel, Commissioner of Social Security

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2261
Sheryl Smith Schoenfeld, for herself and
on behalf of Charles Mandeville, Kathleen
Mandeville, and Jocelyn Mandeville,
Plaintiff-Appellant,
v.
Kenneth S. Apfel, Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99 C 368--Barbara B. Crabb, Judge.
Argued December 4, 2000--Decided January 11, 2001
Before Flaum, Chief Judge, and Diane P. Wood and
Williams, Circuit Judges.
Flaum, Chief Judge. After her husband passed
away, Sheryl Schoenfeld sought child’s benefits
on behalf of her three children, in addition to
mother’s benefits and a lump sum death benefit
for herself. After an administrative hearing
determined that the children were entitled to
child’s benefits on the wage earner’s record, and
that she was entitled to mother’s benefits, the
Appeals Council reversed, holding that the
evidence did not support a finding that the wage
earner fathered the children. The Appeals Council
decision, which is considered the final decision
of the Commissioner of Social Security, was
appealed to the District Court for the Western
District of Wisconsin, which granted summary
judgment in favor of the Commissioner.
Thereafter, Schoenfeld appealed the district
court’s decision to this Court, arguing that the
Appeals Council’s findings are not supported by
substantial evidence, and that the Council made
errors of law. For the reasons stated herein, we
affirm the district court’s grant of summary
judgment.
I. BACKGROUND
The wage earner, Clarence Schoenfeld ("Clay"),

-- 1 of 15 --

born on December 12, 1918, was a college
professor at the University of Wisconsin. In July
of 1969, Clay wed Sheryl Smith ("Sheryl"), a
graduate student at the University. Though Clay
had three children from a previous marriage, at
the time of their nuptials, Clay informed Sheryl
that he did not wish to have any additional
children; a request that Sheryl initially
acquiesced to. At some point though, Sheryl began
to waver. In 1978, Sheryl moved out of Clay’s
residence, and inquired into the possibilities of
artificial insemination and adoption. However,
she was rejected for both.
In 1979, while vacationing in Rome, Sheryl
became acquainted with a self-declared CIA
operative and native Australian, Michael
Mandeville. During a dinner conversation,
Mandeville conveyed to Sheryl that he was
interested in having children, but believed that
because he was a covert agent for the CIA
operating in Rome, he was in no position to be a
parent in a "traditional" way. Eventually, the
two arrived at a symbiotic arrangement whereby
Mandeville agreed to supply his sperm to Sheryl
for insemination purposes, and Sheryl agreed to
give any resulting offspring the Mandeville
surname.
Shortly thereafter, Sheryl inseminated herself,
using a syringe filled with Mandeville’s sperm.
According to Sheryl, Clay knew of and consented
to this attempt at pregnancy. Sheryl became
pregnant and on October 10, 1980, gave birth to
Charles Mandeville. Though Michael Mandeville and
Sheryl were never married, the birth certificate
lists Mandeville as Sheryl’s husband. During the
time period in which Charles was conceived, Clay
and Sheryl continued their conjugal relationship,
relying on the birth control techniques of
"rhythm" and "withdrawal."
On November 24, 1980, a little over a month
after the birth of Charles, Sheryl and Clay
entered into a legal separation. The Judgment of
Legal Separation decreed that "the child, Charles
Smith (sic), born August 10, 1980, to petitioner
Sheryl Stateler Smith, is not the child of the
marriage and the joint petitioner, Clarence A.
Schoenfeld, is not the father." Subsequent to the
separation decree, Sheryl and Clay continued to
have sexual relations, as well as to hold
themselves out publically as husband and wife.
Furthermore, Clay continued to provide financial
support to Sheryl, including, but not limited to,
making mortgage payments for Sheryl.
In early 1982, Sheryl once more inseminated
herself with Mandeville’s sperm, and on December
16, 1982, Kathleen Mandeville was born. Again,

-- 2 of 15 --

Michael Mandeville was listed as the husband, and
Clay and Sheryl had relations during the
conceptive period. In 1983, as a result of his
age and poor health, Clay moved into and
thereafter resided at a retirement community.
Nonetheless, Clay continued to spend time with
Sheryl at their residence, and the couple never
filed for divorce. Also in 1983, Clay applied for
retirement benefits, stating on his application
that he had no natural children, adopted children
or stepchildren who were at that time under the
age of 18. On May 17, 1985, a third child named
Jocelyn Mandeville was born after employment of
the same purported "homemade artificial
insemination technique." Once again, Michael
Mandeville was listed as Sheryl’s husband on the
birth certificate, and Clay had sexual relations
with Sheryl during the conceptive period. Testing
(DNA or blood) to determine the paternity of the
children has never been conducted.
To this date, it does not appear that
Mandeville ever provided financial or emotional
support to Charles, Kathleen or Jocelyn. However,
the record indicates that all three children were
covered under Clay’s insurance policy, and were
supported emotionally by Clay. In October 1990,
though he still resided at a retirement
community, Sheryl and Clay renewed their wedding
vows in the presence of family and friends. Five
years later, on February 24, 1996, Clay passed
away.
In April of 1996, Sheryl filed applications for
child’s benefits on behalf of Charles, Kathleen,
and Jocelyn Mandeville based on Clay’s earning
record. Additionally, Sheryl filed for mother’s
benefits and lump sum death benefits for herself.
Her applications were denied initially and again
upon reconsideration. At Sheryl’s request, an
administrative hearing was held on May 21, 1998.
The Administrative Law Judge’s ("ALJ") decision,
dated September 23, 1998, found (1) the three
children to be entitled to child’s benefits; (2)
Sheryl to be entitled to mother’s benefits; and
(3) Sheryl not to be entitled to the lump sum
death benefits, as she was not living with the
wage earner at the time of his death. The ALJ’s
decision was based on his finding that there was
no clear and convincing evidence to rebut the
presumption under Wisconsin law that a child born
to a married mother is presumed to be a marital
child.
On April 6, 1999, the Appeals Council reopened
the matter, and proposed to revise the ALJ
decision. Though Sheryl objected, on April 28,
1999, the Appeals Council issued a decision
reversing the ALJ: finding that Sheryl was not
entitled to the lump sum death benefits, and that

-- 3 of 15 --

the children and Sheryl were not entitled to
child’s and mother’s benefits on the wage
earner’s record. Specifically, the Appeals
Council found that a clear and satisfactory
preponderance of the evidence upset the
presumption that Clay was the natural father of
Charles Mandeville, and that because of Clay and
Sheryl’s separation, no presumption applied to
Kathleen and Jocelyn. The Council further noted
that Clay referred to himself and was considered
by the children to be their stepfather instead of
their natural father. In addition to finding that
Charles, Kathleen, and Jocelyn were not the
natural children of the wage earner, the Appeals
Council expressly found the children not to be
Clay’s stepchildren either. That finding was
based on the Council’s interpretation of 20
C.F.R. sec. 404.357 to mean that a child is a
wage earner’s stepchild only if the wage earner
married the child’s mother at a time when the
relationship of parent and child already existed
between the mother and child.
On June 3, 1999, Sheryl appealed the Appeals
Council decision to the United States District
Court for the Western District of Wisconsin./1
On February 9, 2000, the district court entered
summary judgment affirming the final decision of
the Commissioner. Sheryl now appeals to this
Court, arguing, in large part, that the
Commissioner’s evidentiary findings are not
supported by substantial evidence, and that the
Commissioner’s decision incorrectly applied
Wisconsin law.
II. DISCUSSION
A. Standard of Review
We review a district court’s grant of summary
judgment de novo. Green v. Shalala, 51 F.3d 96,
99 (7th Cir. 1995). With regard to final
decisions of the Commissioner of Social
Security,/2 our de novo review dictates that we
apply the district court’s standard of review,
and uphold the Commissioner’s decision if the
findings of fact are supported by substantial
evidence and no error of law occurred. See Cannon
v. Apfel, 213 F.3d 970, 974 (7th Cir. 2000); see
also 42 U.S.C. sec. 405(g) ("The findings of the
Commissioner of Social Security as to any fact,
if supported by substantial evidence, shall be
conclusive."). In determining whether substantial
evidence exists, we review the record as a whole.
However, we do not substitute our judgment for
that of the Commissioner "by reconsidering facts,
reweighing evidence, resolving conflicts in
evidence, or deciding questions of credibility."
Williams v. Apfel, 179 F.3d 1066, 1071-72 (7th
Cir. 1999); see Richardson v. Perales, 402 U.S.
389, 399-401 (1971). In order for this Court to

-- 4 of 15 --

uphold a decision of the Commissioner, the
standard requires that there be more than a
scintilla of proof in support of that decision.
Cannon, 213 F.3d at 974. But, "substantial
evidence requires no more than such relevant
evidence as a reasonable mind might accept as
adequate to support a conclusion." Diaz v.
Chater, 55 F.3d 300, 305 (7th Cir. 1995)
(internal quotation omitted).
Pursuant to the Social Security Act, every
child of a worker who dies fully (or currently)
insured is entitled to child’s insurance
benefits, assuming all other prerequisites are
met. 42 U.S.C. sec. 402(d)(1). The definition of
a child, according to the Act, includes not only
a worker’s natural child, but also any legally
adopted child, and in certain circumstances a
stepchild, grandchild, stepgrandchild, and
equitably-adopted child. Id. at sec. 416(e). In
determining whether an applicant for benefits
should be considered the child of an insured
individual, the Commissioner of Social Security
applies the law governing intestate transfers in
the state where the decedent was domiciled at the
time of his or her death. Id. at sec.
416(h)(2)(A). Therefore, we direct our inquiry to
an examination of Wisconsin intestacy law, and
whether according to those laws the Mandeville
children would be able to inherit the property of
the decedent.
According to the basic rules for intestate
succession in Wisconsin, the decedent’s estate
may pass to the decedent’s issue. Wis. Stat sec.
852.01. In keeping with the definition contained
in sec. 990.01(17), an "issue" includes all the
lawful descendants of the ancestor. Within the
penumbra of lawful descendants lies the category
of marital child, which Wisconsin law defines to
include any "child who is conceived or born while
his or her parents are lawfully intermarried," as
well as any "nonmarital child who is adopted or
whose parents subsequently intermarry under sec.
767.60." Wis. Stat. sec. 990.01(19m). For
completion purposes, the law defines a nonmarital
child as "a child who is neither conceived nor
born while his or her parents are lawfully
intermarried, who is not adopted and whose
parents do not subsequently intermarry under sec.
767.60." Id. at sec. 990.01(23m).
While the law allows for the decedent’s estate
to pass to marital children, in certain
circumstances, it also provides that a nonmarital
child is entitled to take in the same manner as
a marital child by intestate succession. Wis.
Stat. sec. 852.05. Specifically, if a nonmarital
child’s father has (1) been adjudicated to be the
father in a paternity proceeding under sec. 767

-- 5 of 15 --

or by final judgment of a court of competent
jurisdiction in another state; or (2) admitted in
open court that he is the father; or (3)
acknowledged himself to be the father in a
writing signed by him, the child takes as a
marital child. Id. Therefore, in order to obtain
child’s benefits in Wisconsin, the child must be
shown to be either a marital child or fall within
one of the above categories of nonmarital
children. With this background, we now proceed to
analyze the merits of this appeal.
B. Constitutional Claims
As a preliminary matter, we note that much of
appellant’s/3 brief is devoted to raising equal
protection and due process arguments under the
Fifth Amendment of the Constitution of the United
States. In appellant’s reply brief, as well as
during oral argument, appellant conceded that
these arguments were not raised below. We have
long held that "[i]ssues that a claimant fails to
raise before the district court are waived on
appeal." Ehrhart v. Secretary of Health and Human
Serv., 969 F.2d 534, 537 n.4 (7th Cir. 1992); see
also United States v. Andreas, 150 F.3d 766, 769
(7th Cir. 1998) ("We have held time and again
that perfunctory and undeveloped arguments (even
constitutional ones) are waived."). Furthermore,
the fact that appellant obtained different
counsel for the purposes of filing her appeal
does not allow her to raise these arguments
before this Court. See Ehrhart, 969 F.2d at 537
n.6. At oral argument, appellant all but
abandoned her constitutional challenges and
requested that we examine the claims only as they
relate to the proper application of Wisconsin law
by the Appeals Council. Because we view
appellant’s constitutional challenges as having
been waived, we proceed to analyze the factual
findings and legal underpinnings behind those
claims, and examine whether the district court
was correct in granting the Commissioner summary
judgment.
C. Commissioner’s Evidentiary Findings
The district court granted the Commissioner
summary judgment, after accepting the magistrate
judge’s recommendations that there was
substantial evidence to support the
Commissioner’s factual findings (and that no
error of law was made). Once again, substantial
evidence is evidence which a reasonable mind
would accept as adequate to support a conclusion,
such that where conflicting evidence allows
reasonable minds to differ as to whether a
claimant is entitled to benefits, the
responsibility for that decision rests with the
Commissioner. See Binion ex rel. Binion v.

-- 6 of 15 --

Chater, 108 F.3d 780, 782 (7th Cir. 1997).
Appellant’s specific contention before this Court
is that there was not substantial evidence to
support the Commissioner’s findings that the
Mandeville children were not the natural children
of the wage earner./4
Once more, we must return to Wisconsin law to
determine whether the Mandeville children should
be considered the natural children of Clay.
Wisconsin statutes provide that "[w]henever it is
established in an action or proceeding that a
child was born to a woman while she was the
lawful wife of a specified man, any party
asserting in such an action or proceeding that
the husband was not the father of the child shall
have the burden of proving that assertion by a
clear and satisfactory preponderance of the
evidence." Wis. Stat. sec. 891.39(1)(a). A clear
and satisfactory preponderance of the evidence is
a higher degree of proof than is required in most
civil actions but not as great as the burden of
proof reserved for criminal actions. See Wis.
Stat. sec. 891.39 legislative council notes. Yet,
as we shall discuss, the presumption of paternity
contained in sec. 891.39(1)(a) is inapplicable if
the parents are legally separated; as happened in
this instance in between the births of Charles
and Kathleen. Thus, in examining the Mandeville
children’s status vis e vis Clay, we sunder our
examination, first addressing Charles’ status and
then that of Kathleen and Jocelyn.
1. Charles Mandeville
Because Charles was conceived and born while
Clay and Sheryl were married, the presumption
contained in sec. 891.39(1)(a) is applicable.
Here, appellant argues that there was
insufficient evidence to overcome the presumption
that Charles is the natural child of Clay. In
concluding that the record contained sufficient
evidence to rebut the presumption, the Appeals
Council cited the following: (1) Sheryl’s
acknowledgment that Charles was conceived by
artificial insemination using Mandeville’s sperm;
(2) the statement in the Judgment of Legal
Separation that Charles was not Clay’s child; (3)
Clay’s statement under penalty of perjury at the
time he applied for benefits that he had no minor
children; (4) the fact that Clay referred to
himself and was considered by the children to be
a stepfather rather than a natural father; and
(5) that Sheryl and Clay actively attempted to
avoid impregnation during intercourse.
In arguing that there was insufficient evidence
to rebut the paternity presumption, appellant
states that "it is unclear what weight should be
given to the evidence cited by the Appeals

-- 7 of 15 --

Council and affirmed by the District Court
because it was assumed that Sheryl acted on
behalf of Charles Mandeville in the proceedings
below." It is incontrovertible that Sheryl’s
testimony is admissible for purposes of
determining paternity. As the statute plainly
states, "In all such actions or proceedings the
husband and the wife are competent to testify as
witnesses to the facts." Wis. Stat. sec.
891.39(1)(a). Thus, we must question to what end
appellant is challenging the statements made by
Sheryl. To the extent that appellant claims the
Appeals Council erred in not appointing a
guardian ad litem to represent Charles’
interests, we address that contention below,
along with appellant’s other legal challenges.
However, inasmuch as appellant questions how much
weight should have been granted to the testimony
of Sheryl by the Appeals Council, that inquiry is
out of bounds. As we stated above, when it comes
to reviewing the final decision of the
Commissioner, we do not reconsider facts, reweigh
evidence, resolve conflicts in evidence, or
decide questions of credibility. See Williams,
179 F.3d 1071-72. Thus, whether or not Sheryl had
motivations to fabricate the circumstances
surrounding her pregnancy does not factor into
our analysis here. Similarly, appellant attacks
reliance on the statement contained in the
Judgment of Legal Separation, in that Charles was
not represented in the proceedings. In support of
that attack, appellant points out that "[i]t is
well established that an infant is not bound by
a judgment unless he is represented by a guardian
ad litem at the time of its entry." In re Will of
Brandstedter, 224 N.W. 735, 736 (1929). Once
again, appellant attempts to invoke this legal
argument as a justification for us to cross over
into the reweighing of evidence relied on by the
Appeals Council; an endeavor we will not
undertake.
In suggesting that there was insufficient
evidence to overcome the presumption that Charles
is the marital child of Clay, appellant presents
"medical evidence" in order to question the
veracity of Sheryl’s version of the insemination.
Additionally, appellant argues that the
presumption of Clay as the natural father cannot
be overcome in this instance, given that no DNA
or blood tests have been administered on the
children to resolve the matter./5 While Wis.
Stat. sec. 891.39 does recognize that a genetic
test constitutes clear and satisfactory
preponderance of the evidence, capable of
rebutting the paternity presumption of the
statute, there is no suggestion that lack of a
DNA test precludes rebuttal of the presumption.
A clear and satisfactory preponderance of the
evidence can be found with less than the

-- 8 of 15 --

certitude that genetic testing brings. For
example, in Schmidt v. Schmidt, the Supreme Court
of Wisconsin reversed a lower court decision that
found insufficient evidence to rebut the
presumption that Mr. Schmidt was the biological
father of the child in question. 124 N.W.2d 569
(1963). In that case, the presumption was created
(as here) by the fact that the couple was married
at the time the child was conceived and born.
Additionally, both the birth certificate and
baptismal certificate listed Mr. Schmidt as the
child’s father, Mr. Schmidt supported the child,
and never disavowed paternity prior to his
divorce proceedings. Id. at 571. Yet, the court
found that the testimony of the couple that their
last date of intercourse precluded Mr. Schmidt
from being the natural father of the child at
issue, in conjunction with Mrs. Schmidt’s
admission of extramarital relations during the
conceptive period constituted a clear and
sufficient preponderance of the evidence and was
thus sufficient to overcome the presumption that
Mr. Schmidt was the father. See id. at 571-74.
Here, the argument in favor of rebutting the
presumption is stronger, as not only do we have
both parents testifying that Clay is not the
father, but we have the additional fact that Clay
was never held out to be, or documented as the
natural father of Charles. Yet, we need not rely
on Sheryl’s and Clay’s assertions regarding the
success of the artificial insemination procedure.
The fact is that in 25 years of active sexual
relations with Clay the only times that Sheryl
became pregnant were following artificial
insemination attempts. This evidence, which the
Commissioner was entitled to consider, in
conjunction with Sheryl’s statements establishing
the possibility that Mandeville’s sperm
impregnated Sheryl, is sufficient to rebut the
presumption that Clay is Charles’ natural father.
Ultimately though, our task is not as difficult
as it may seem. While appellant continuously
argues the absence of a clear and satisfactory
preponderance of the evidence to rebut the
presumption that Clay is Charles’ natural father,
our review is much more limited. As stated
numerous times throughout this opinion, we sit,
with regard to factual determinations of the
Appeals Council, only to insure that those
determinations are supported by substantial
evidence. See Binion, 108 F.3d at 782. Here,
given the statements (made under penalty of
perjury) of both Sheryl and Clay, the birth
certificate, the articulation contained in the
decree of separation, and the day-to-day manner
in which the children regarded Clay, we find that
substantial evidence supports the Appeals
Council’s decision that Charles was not the

-- 9 of 15 --

marital child of Clay.
2. Kathleen and Jocelyn Mandeville
Whether there was substantial evidence to
support the decision of the Appeals Council that
Kathleen and Jocelyn are not the marital children
of Clay is a more straightforward question, given
the analysis above and the legal separation that
occurred prior to their births. According to Wis.
Stat. sec. 891.41, "a man is presumed to be the
natural father of a child if . . . (a) He and the
child’s natural mother are or have been married
to each other and the child is conceived or born
after marriage and before the granting of a
decree of legal separation, annulment or divorce
between the parties." Thus, if the child was
conceived subsequent to a decree of legal
separation, as was the case here, there is no
presumption as to paternity. Aside from the
decree of legal separation, and the statement
contained therein, the factual circumstances
surrounding Kathleen and Jocelyn’s births are
indistinguishable from those regarding Charles.
The appellant does not present any additional
arguments in support of reversal of the Appeals
Council’s determination, besides those previously
discussed in relation to Charles’ paternity.
Despite the presumption that Charles is Clay’s
marital child, we determined that there was
substantial evidence to support the Appeals
Council’s decision to the contrary. A fortiori,
in the cases of Kathleen and Jocelyn, where there
is no presumption that Clay is the father, we
find that there was substantial evidence to
support the Appeals Council’s decision.
D. Commissioner’s Application of Appropriate Legal
Standards
In addition to challenging the Commissioner’s
factual findings, appellant also argues that the
Commissioner erred in applying Wisconsin law. As
we alluded to above, the Commissioner’s
conclusions of state law are not entitled to
deference. Therefore, "if the Commissioner
commits an error of law, reversal is required
without regard to the volume of evidence in
support of the factual findings." Binion, 108
F.3d at 782.
Appellant’s primary contention regarding legal
error by the Appeals Council is that by not
appointing a guardian ad litem to represent the
interests of the children, the Commissioner
incorrectly applied Wisconsin law. In support of
this argument, appellant cites Wis. Stat. sec.
891.39 which states that in all actions in which
the presumption that the husband is not the
father is being challenged, "[t]he court or judge

-- 10 of 15 --

in such cases shall appoint a guardian ad litem
to appear for and represent the child whose
paternity is questioned."
Appellant’s argument is unconvincing for
numerous reasons. First, we note that this
argument was not raised at the district court
level and as such we believe that it has been
waived. See Andreas, 150 F.3d at 769. Appellant
recognizes that the guardian ad litem issue was
not directly presented below, but urges this
Court to consider the claim as being encapsulated
within the general challenge to the appropriate
application of Wisconsin law. However, the legal
challenges presented below did not center around
the appointment of a guardian ad litem, but
rather around whether it was proper for the
Appeals Council to reopen, reexamine, and reverse
the decision of the ALJ. Nonetheless, giving the
appellant a degree of latitude and assuming
arguendo that the claim has not been waived, we
still fail to see error in this instance.
The Social Security Act does not mandate that a
guardian ad litem be appointed to protect a
minor’s interest, and appellant has not provided
any case law to suggest otherwise. Rather, the
appellant claims that determining whether an
applicant for benefits should be considered the
child of an insured individual demands that the
Commissioner here apply Wisconsin law governing
intestate transfers. 42 U.S.C. sec. 416(h)(2)(A).
Since Wisconsin law requires such an appointment,
the fact that one did not occur in this instance
requires reversal of the Commissioner’s
decision./6
We disagree that Wisconsin law requires such an
appointment. As the appellant notes, the
requirement of appointing a guardian ad litem
applies in limited circumstances, such as when
custody is at issue--as is contemplated under
Wis. Stat. sec. 891.39. See e.g., Bahr v. Bahr,
240 N.W.2d 162, 164 (1976) (holding that it is
reversible error for the trial court to fail sua
sponte to appoint a guardian ad litem before
deciding contested custody issues, even if
neither party has requested the appointment of a
guardian ad litem). Appellant recognizes that the
Commissioner’s adjudication here does not fall
within that limited category, and therefore
points out that "beyond custody cases, courts
have discretion to determine whether concern is
’special’ so as to require appointment of a
guardian ad litem." See deMontigny v. deMontigny,
233 N.W.2d 463 (1975)./7 Thus, the appellant
attempts to pigeonhole this case within the
limited categories of Wis. Stat. sec.
767.045(1)(a)(1) (where the court has reason for
special concern for the welfare of the child),

-- 11 of 15 --

and Wis. Stat. sec. 803.01(3) (where the
interests of the minor are adverse to that of the
general guardian).
In support of the notion that Sheryl’s
interests conflicted with that of the children,
appellant suggests that Sheryl had motivation to
maintain that the children were the product of
artificial insemination, in order to keep Clay
from divorcing her./8 Taken at face value, this
assertion would only be relevant to the statement
contained within the separation decree that
Charles was not the son of Clay. Since a guardian
was not appointed for those separation
proceedings, it is clear that the statement
contained in the decree is not a binding
declaration of Charles’ paternity. "It is well
established that an infant is not bound by a
judgment unless he is represented by a guardian
ad litem at the time of its entry." In re Will of
Brandstedter, 224 N.W. at 736. Thus, Charles
would be free to litigate the issue of paternity,
as provided by Wisconsin law. However, that
failure to appoint a guardian, in an unrelated
procedure over 20 years ago, does not require
reversal of the Commissioner’s decision in this
matter. That Sheryl may have had a motivation to
prevaricate in 1980 goes to the credibility of
the statement in the separation decree, and does
not show that Sheryl’s interests conflicted with
that of her children during the proceedings
before the ALJ. The statement contained in the
separation agreement is not being employed as a
conclusively binding declaration of paternity,
but rather as one of a number of reasons for
rebutting the presumption that Clay is Charles’
natural father. While there was a possible
conflict of interest during the separation
proceedings, that conflict (and the failure to
appoint a guardian ad litem) in that instance
works only to cast doubt on the credibility of
the statement contained in the agreement. But, as
we have stated numerous times in this opinion, we
will not review the Commissioner’s credibility
determinations. Williams, 179 F.3d 1071-72.
In the proceedings before the ALJ, Sheryl had
no motivation--other than to tell the truth--to
suggest that Mandeville was the children’s
biological father. At that point, Clay was
deceased and the stability of their marriage
moot. As the Commissioner correctly points out,
at that time, Sheryl’s interests were squarely in
line with those of her children. The only way by
which Sheryl could obtain mother’s benefits would
be if the children were determined to be entitled
to child’s benefits. In fact, since it was
uncontested that Sheryl would be entitled to her
mother’s benefits if the children were entitled
to their benefits, in reality, the only interest

-- 12 of 15 --

Sheryl was representing at the hearing was that
of the children. Therefore, even assuming that
appellant’s guardian ad litem argument was raised
below, we find no conflict that would have
necessitated the appointment of a guardian ad
litem./9
Finally we note that throughout appellant’s
brief, there is also a suggestion of legal error
in that the Commissioner did not create a
complete factual record. To the extent that
appellant articulates this argument fully, it
appears to be based on the failure of the
Commissioner to conduct paternity tests. As we
have noted above, while we believe that DNA or
blood tests could resolve the paternity issue
conclusively, it has been and continues to be
within Sheryl Schoenfeld’s power, as guardian of
those children, to have those tests carried out.
While tests were not requested by the
Commissioner, even appellant notes that it is
questionable whether such requests would have to
be honored. Appellant has failed to point to any
specific evidence that the Commissioner excluded,
or explain how appellant was prejudiced by the
record that was created. "Mere conjecture or
speculation that additional evidence might have
been obtained in the case is insufficient to
warrant a remand." Binion v. Shalala, 13 F.3d
243, 246 (7th Cir. 1994). Thus, we hold that the
Commissioner developed a fair and complete
record.
III. CONCLUSION
We agree with the district court that the
Commissioner’s findings are supported by
substantial evidence and that the Commissioner
correctly applied Wisconsin law.
For the foregoing reasons, we Affirm the decision
of the district court.
/1 The decision of Appeals Council is considered the
final decision by the Commissioner of Social
Security and subject to judicial review pursuant
to 42 U.S.C. sec. 405(g).
/2 Because the Commissioner has delegated the
authority to make final decision to the Appeals
Council, reviewing courts must defer to the
Appeals Council’s decision. White v. Sullivan,
965 F.2d 133, 136 (7th Cir. 1992). Hence, when
the ALJ’s decision is reversed by the Appeals
Council, it is the Appeal’s Council decision
which constitutes the Commissioner’s final
decision for purposes of judicial review under 42
U.S.C. sec. 405(g). See also 20 C.F.R. sec.sec.

-- 13 of 15 --

404.979, 404.981.
/3 Throughout the course of this opinion, we use
"Sheryl" and "appellant" when referring to Ms.
Schoenfeld. These terms are not used
interchangeably. The use of the term "appellant"
is confined to referencing Sheryl Schoenfeld, as
she appears in this suit, for herself and on
behalf of her children. All uses of "Sheryl"
denote Ms. Schoenfeld as the individual actor.
/4 Before the Appeals Council and the district
court, appellant alternatively argued that even
if the Mandeville children were not considered
Clay’s natural children, they should be
considered his stepchildren. This argument was
founded in the assumption that the renewal of
wedding vows in 1990 between Sheryl and Clay
Schoenfeld acted as a marriage (or would have
been a marriage but for legal impediment),
thereby making the children eligible for benefits
under the law. See 42 U.S.C. sec. 416(h)(2)(B)
("You may be eligible for benefits as the
insured’s stepchild if, after your birth, your
natural or adopting parent married the
insured."). This argument was rejected by the
Appeals Council as well as the district court,
and is not before us on appeal. Therefore, our
inquiry is confined to examining whether the
children should be considered the natural
children of the wage earner.
/5 We are troubled by the fact that appellant’s
arguments as to why the Appeals Council decision
should be overturned rest largely on the
innuendo, contained in appellant’s brief, that
appellant Sheryl Schoenfeld concocted the entire
Mandeville saga. Additionally, we find it
disingenuous for Sheryl to suggest that the lack
of DNA tests to establish paternity somehow
precludes rebuttal of the presumption that Clay
is Charles’ natural father (as well as the
natural father of Kathleen and Jocelyn). Given
that as their guardian, it has always been and
continues to be within Sheryl’s power to have
those tests conducted, and to enlist the aid of
the Wisconsin courts in determining the
children’s paternity, we do not believe it is
appropriate for Sheryl to benefit from the shadow
of doubt that she has created. Were this a
situation where Sheryl had not passively waited
for the ALJ to gather the evidence and make her
case for her, but instead had attempted, and been
unsuccessful at having paternity tests conducted,
perhaps the Commissioner would have viewed this
case differently. However, we fail to understand
how the appellant can claim that the "critical
determination" of paternity, under Wisconsin law
"must be made," while at the same time (1) never
attempt to have that determination made; and (2)

-- 14 of 15 --

state "that whether ordering DNA or blood tests
would have been allowable in the instant case is
not at issue."
/6 It is unclear whether the requirement of applying
state intestacy law directs that we follow state
rules regarding the appointment of a guardian ad
litem, or are limited to more substantive aspects
of the determination under state intestacy laws.
In Bennemon ex rel. Williams v. Sullivan, we
noted that the determination of intestate
succession as applied in benefits cases requires
the "following [of] a specific state-law
procedure, as opposed to merely satisfying a
substantive criterion of law." 914 F.2d 987, 992
(7th Cir. 1990). For purposes of this appeal, we
assume arguendo that guardian ad litem
appointments in Social Security benefits cases
are governed by state law.
/7 While on the one hand appellant recognizes that
outside of limited circumstances, appointment of
a guardian ad litem is discretionary, appellant
also broadly suggests that a guardian ad litem
must be appointed on all issues even tangentially
related to paternity.
/8 This unsupported allegation appears for the first
time in appellant’s reply brief.
/9 We note in passing that appellant’s complaint
regarding the failure to appoint a guardian ad
litem is directed to the ALJ hearing. It was at
that hearing, when the children were, according
to the appellant, not adequately represented,
that they received a favorable determination.

-- 15 of 15 --