for the omissions of Johnny name from Clifton's birth certificate and the divorce decree. Sandra explained that she made these omissions because she did not want to be bothered with Johnny and did not want him to know that Clifton was his son. (R. 51, 54.) In a September 1991 report to the state agency, she submitted a signed statement indicating that she did not tell Johnny that Clifton was his son until 1990. (R. 122-23.) That signed statement, however, conflicts with the testimony of her husband's brother, who said that Johnny told him Clifton was his son sometime between 1978 and 1981, or at least nine years before Sandra allegedly "told" her husband that he was Clifton's father. (R. 71.) Further, her statement also conflicts with the testimony and signed statement of Johnny Binion's sister that Johnny told her that Clifton was his son right after he was born -- some fourteen years before Sandra said she "told" Johnny he was Clifton's father. (R. 78, 122-23.)
Because the statements of Johnny's brother and sister directly undermine Sandra's explanation of the documentary omissions in the record, the ALJ reasonably found that Sandra's testimony on this crucial point was not credible. Willis, 214 Ill. App. 3d 683, 574 N.E.2d 172, 158 Ill. Dec. 378 (The factfinder is in the best position to weigh the evidence and consider the credibility of witnesses.); Imani ex. rel. Hayes v. Heckler, 797 F.2d 508, 512 (7th Cir.), cert. denied, 479 U.S. 988, 93 L. Ed. 2d 583, 107 S. Ct. 580 (1986) (The ALJ's credibility findings should be affirmed unless patently wrong.). The ALJ was reasonable in finding that the omissions of Johnny's name from Clifton's birth certificate and of Clifton's name from the divorce decree, in addition to the inconsistent statements about when Sandra and Johnny separated, and Sandra's and Johnny's contemporaneous signed statements that they were separated at the time Clifton was conceived, constitute substantial evidence to support the ALJ's conclusion that the presumption that Johnny was Clifton's father was rebutted by clear and convincing evidence. This Court can not reweigh the evidence and substitute its judgment for that of the ALJ. See Delgado, 782 F.2d at 82. A review of the record in the instant case reveals that a reasonable mind would find the relevant evidence adequate to support the ALJ's conclusion. See Richardson, 91 S. Ct. at 1427.
In addition, Plaintiff claims that the ALJ's failure to order blood tests to confirm that Johnny Binion was not Clifton's father breached his duty to fully develop the record. In addition, Plaintiff claims that the ALJ's "reliance" on ex parte post hearing communication between the ALJ and hematologist denied due process to Plaintiff. This issue was not addressed by the Magistrate Judge in the R&R.
The ALJ attempted to arrange blood tests after the hearing. (R. 139.) The ALJ contacted a hematologist who explained that there would be no point in obtaining blood tests if the alleged father could not be tested. (R. 139.) The ALJ noted that he informed Plaintiff's counsel regarding the substance of his telephone conversation with the hematologist, Dr. Bertran, and Plaintiff's counsel indicated that he might call the hematologist himself. (R. 129.) At the end of his opinion, the ALJ explained his conversation with the hematologist, but he did not discuss the lack of blood tests as evidence in the case. (R. 27.) The ALJ did not draw an adverse inference from the absence of the blood tests because the hematologist's statements regarding the efficacy of performing blood tests in this case was not "evidence," but an explanation for the impossibility of obtaining evidence without a living father. In the October 22, 1993 decision by the Appeals Council denying review, the Appeals Council explained that neither the ALJ nor the Appeals Council had the authority to "order" that blood tests be performed. (R. 2.)
The Illinois statute states that a court "shall order or direct the mother, child, and alleged father to submit to appropriate tests." 750 ILCS 45/11 (West 1993 & Supp. 1995); (R. 137.) The current version of the law also provides for DNA testing but retains the requirement that the alleged father be tested. 750 ILCS 45/11(a) (West Supp. 1995). Although the Illinois statute provides that the alleged father be tested, the statute makes no provision on what testing shall or can be ordered when the alleged father is deceased. 750 ILCS 45/11 (West 1993 & Supp. 1995). See Schultz v. Peeler, 10 Ill. App. 3d 937, 295 N.E.2d 252 (1973) (finding that the death of the child prevented the taking of blood tests under the Illinois Act on Blood Tests to Determine Paternity of 1971 and that the suit should be treated as if the results of such tests were inconclusive and inadmissible).
Plaintiff has failed to submit any evidence or authority as to the accuracy of blood tests based on the alleged father's medical records, or based on the blood tests of the mother, the child, and the other sibling of the presumed father without tests of the presumed father himself. Plaintiff was represented by counsel throughout these proceedings. Plaintiff could have submitted any evidence obtained after the hearing to the ALJ prior to his decision, to the Appeals Council in conjunction with her request for review of the ALJ's decision, to the ALJ or Appeals Council pursuant to 20 CFR 404.988 and 404.989 prior to September 13, 1995 as provided by the Appeals Council's decision denying review, and to this Court with a request for remand pursuant to 42 U.S.C. § 405(g). Despite these opportunities, Plaintiff has not submitted the blood tests as evidence, nor has Plaintiff offered evidence that the Court should order blood tests pursuant to 750 ILCS 45/11 (West 1993 & Supp. 1995) even though the father is no longer living.
In sum, although Plaintiff challenges the suggestion that blood tests without the father being available for testing are insufficient to prove paternity, Plaintiff does not offer, nor has this Court found, any authority or evidence to the contrary. Accordingly, the Court finds that the ALJ adequately developed the record.
Plaintiff asserts, citing Lonzollo v. Weinberger, 534 F.2d 712 (7th Cir. 1976) and Oyen v. Shalala, 865 F. Supp. 497 (N.D. Ill. 1994), that the ALJ's failure to obtain the blood tests discussed at the hearing denied her due process. The cases cited by Plaintiff are distinguishable from the instant case where the ALJ did not rely on the lack of blood test results in reaching his decision.
In Lonzollo, the Appeals Council relied on the report of a physician who examined the claimant after the ALJ had issued a decision to award benefits. Lonzollo, 534 F.2d at 714. Plaintiff claimed that he was denied his right to a hearing when the Appeals Council reversed the ALJ's decision, basing its findings on the physician's report, because the report was not presented at the hearing and the plaintiff was not given an opportunity to present evidence to rebut the report. Id. The case was remanded for further administrative hearing because the Appeals Council based its fact-finding on evidence not introduced at the hearing. Id.
In Oyen, the court found that the ALJ's failure to permit cross examination of the physician who presented post-hearing evidence regarding the plaintiff's functional capacity violated the plaintiff's right to due process. Oyen, 865 F. Supp. at 509. The ALJ in Oyen had accorded "great weight" to the post-hearing evidence, and the court stated that "if the ALJ's decision had not looked at [the physician's conclusions] at all . . ., the due process and other violations as to that piece of evidence might have been of no moment." Id. In the instant case the ALJ drew no adverse inference from the absence of blood test evidence. Because the ALJ did not rely on the absence of the blood test evidence to support his finding that Clifton was not Johnny Binion's child, and because no authority required the ALJ to obtain blood tests, the ALJ's decision not to order blood tests did not violate Plaintiff's constitutional right to due process.
For the reasons stated above, the Court does not accept the Magistrate Judge's Report and Recommendation Accordingly, the Court affirms the Social Security Administration's denial of Plaintiff's application for Child's Insurance Benefits on behalf of her son, Clifton Binion. Defendant's Motion for Summary Judgment is granted and Plaintiff's Motion for summary Judgment is denied.
JOHN A. NORDBERG
United States District Judge
DATED: March 20, 1996
JUDGMENT IN A CIVIL CASE
Decision by Court.
IT IS ORDERED AND ADJUDGED for the reasons stated above, the Court does not accept the Magistrate Judge's Report and Recommendation. Accordingly, the Court affirms the Social Security Adminstration's denial of Plaintiff's application for Child's Insurance Benefits on behalf of her son, Clifton Binion. Defendant's Motion for Summary Judgment is granted and Plaintiff's Motion for Summary Judgment is denied.
March 20, 1996