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"),
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,
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
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
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
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.
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
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
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
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
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),
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
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.
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)
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.