United States District Court, N.D. Illinois, Eastern Division
August 4, 2004.
DANA L. MALONE on behalf of THEOPLUS RANDOLPH, JR., Plaintiff,
JO ANNE B. BARNHART, Commissioner of Social Security, and SHERRY CHILLIS, on behalf of M.L.H. and M.D.H., Defendants.
The opinion of the court was delivered by: ARLANDER KEYS, Magistrate Judge
MEMORANDUM OPINION AND ORDER
On June 6, 2000, Dana Malone filed an application for Child's
Insurance Benefits on behalf of Theoplus D. Randolph, Jr.
(Theoplus Jr.), her minor son. The application sought benefits on
the account of Lamond Hudson, who died fully insured on January
28, 1999. The Social Security Administration ("SSA") denied Ms.
Malone's application on July 6, 2000, after determining that Ms.
Malone failed to show that Theoplus Jr. was Mr. Hudson's son. Ms.
Malone sought reconsideration, and the initial decision was
affirmed on April 18, 2001. Record at 75-77. Ms. Malone then
requested a hearing, and the case was assigned to Administrative
Law Judge John P. Brundage, who heard the matter on June 11, 2002.*fn1
At the hearing before the ALJ, Ms. Malone appeared, as did her
attorney and Mr. Hudson's mother. The parties submitted documents
to the ALJ, including: (1) a copy of Theoplus Jr.'s birth
certificate, showing that he was born in Chicago on June 12, 1995
and listing "Theoplus D. Randolph" as the father (Record at 80);
(2) a copy of Lamond Hudson's death certificate, issued by the
Indiana State Department of Health, showing that Mr. Hudson died
on January 28, 1999 of hypotension, renal failure and
glucocytosis (Record at 81); (3) a copy of DNA paternity testing
results done by Dr. Charles Strom of Reproductive Genetics
Institute in Chicago on May 26, 2000, indicating that Lamond
Hudson "cannot be excluded from being the father of Theoplus
Randolph"; in fact, the report shows a "combined paternity index"
of 4461274, showing that the "probability of paternity" was
99.9999776% (Record at 82); (4) a statement by Theoplus Randolph,
written on an SSA form, that he knows he is Theoplus Jr.'s
biological father (Record at 83); and (5) an "Order Declaring
Heirship," entered in the Cook County Probate Court on August 3,
2000, and declaring that "Theopolus Randolph" is one of three
heirs of Lamond L. Hudson (Record at 85). The ALJ opened the hearing by questioning Mr. Hudson's mother
about the DNA record she sought to submit:
ALJ: Then there's a paternity testing result dated
April 17, 2000. That brings up the question of what
did they test that's
ATTY: They tested the son. The claimant here.
ALJ: And the deceased, how can you test the deceased?
What did he submit?
ATTY: Ms. Hudson?
WTN: They had his remains because they were doing an
autopsy so the person that did it had reserved it for
a year after his death.
ALJ: The person that did what?
WTN: The autopsy on my son. She had his organs. The
ALJ: Do you know who that was?
WTN: Yes, I do.
ALJ: That should be explained, I would think.
WTN: Do I understand you want me to explain it or you
want her to explain it or
ALJ: I mean, you know, something was submitted I
don't know. You could submit anything and say it was
the remains of your son. I don't know. It's just a
question that should be answered.
Record at 40-41.
The ALJ then turned to other issues, first questioning Ms.
Hudson about the probate proceedings in Cook County, and about
the cause of her son's death, Record at 41-42, and then questioning Ms. Malone. Ms. Malone testified that neither Lamond
Hudson (the alleged father), nor Theoplus Randolph (whose name
appears on Theoplus Jr.'s birth certificate), provided any kind
of support to Theoplus Jr.; indeed, she testified, Randolph
disappeared from the picture when Theoplus Jr. was about eight or
nine months old, and Hudson had never been in the picture at all.
Record at 45-47. She testified that the issue of paternity had
"always been a question mark" to her, and that she "never knew
for sure until I seen Lamont and Theophilus together and of
course, when Ms. Hudson, you know, asked." Record at 47. She
testified that she and Hudson "dated off and on until the day he
died"; that if they had time to see each other they did, but they
both saw other people as well. Record at 50. Finally, she
testified that, after Hudson died, Theoplus Jr. received part of
the proceeds of his estate, which consisted largely, if not
entirely, of life insurance proceeds. Record at 50.
At the end of the hearing, the ALJ again raised some concerns
about the DNA testing:
ALJ: . . . The only question remaining in my mind is
the validity of the testing. The testing was done
long after the father was deceased and I think
there's there would have to be some explanation of
what they tested. I mean
ATTY: Well, isn't that before the doesn't the
issue is whether it satisfies the Illinois statute
and it did.
ALJ: Well ATTY: That was before the [INAUDIBLE] of Illinois.
ALJ: Well, that it was uncontested. I'm not quite
sure about the law involved but I don't think I'm
bound by what some judge in Probate Court did based
on a document created almost a year after the
deceased's death. I don't think he or she went into
that question. They accepted it at face value. If
it's a legitimate DNA, well then the man is the
father. There's just no question about it. But what
was it based on?
* * *
ATTY: Well, if you'd like I can contact the attorney
that's involved in that case and ask him to
ALJ: Well, I think that should be done. . . . you
have some time to get that. I would get it as soon as
possible. Whether from the undertaker or the autopsy
person or whoever saved this DNA should explain that.
It's in the file unexplained.
Record at 54-55.
Finally, on questioning from Ms. Malone's attorney, Ms. Hudson
testified that she took the initiative in establishing paternity
after she saw Theoplus Jr. at her son's funeral, saw that he
looked like her son, and then questioned Ms. Malone on the
subject. Id. at 55-56. She testified that she pursued the issue
because she thought it was "the right thing to do." Id. at 56.
Following the hearing, the ALJ immediately closed the record.
It is unclear whether Ms. Hudson, or Ms. Malone or her attorney
ever followed through on any attempt to assuage the ALJ's
concerns and doubts about the DNA testing results. There is
nothing further in the file from any "undertaker or autopsy
person"; nor is there any other documentation independently establishing the legitimacy of the test results. The ALJ's
decision says nothing about any such attempts and does not
otherwise explain what, if anything, transpired on the issue
after the hearing.
The ALJ closed the record on June 11, 2002, and issued his
decision three months later, on September 23, 2002. He found that
Theoplus Jr. did not "meet the relationship requirements
described in the Social Security Act," and was, therefore, not
entitled to benefits. In particular, in response to an argument
from Ms. Malone's counsel that the DNA test results, coupled with
the Order of Heirship issued by the Probate Court of Cook County,
give rise to a presumption of paternity, the ALJ found that:
[t]he report of the DNA testing was not an original
document of the testing and did not contain written
evidence that what was tested belonged to the
deceased. As Lamond Hudson is unable to challenge the
results of the paternity testing and the Order of
Heirship . . . I am not persuaded that there is clear
and convincing evidence to overcome the presumption
Record at 13-14.
The ALJ's decision became the final agency decision when the
Appeals Council denied review on June 27, 2003. See
20 C.F.R. § 416.1481. Ms. Malone then filed this lawsuit, seeking review of
the decision to deny Theoplus Jr. benefits. The parties consented
to proceed before a magistrate judge, and the case was reassigned
to this Court on January 29, 2004. Thereafter, both parties moved for summary judgment.*fn2
An ALJ's decision must be affirmed if it is free of legal error
and supported by substantial evidence, 42 U.S.C. § 405(g);
Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002); that is,
evidence that "a reasonable mind would accept as adequate to
support a conclusion." Binion v. Chater, 108 F.3d 780, 782 (7th
Cir. 1997) (citations omitted). Where, however, "the
Commissioner's decision lacks evidentiary support or is so poorly
articulated as to prevent meaningful review, the case must be
remanded." Steele, 290 F.3d at 940. In the Seventh Circuit, an
ALJ must "build an accurate and logical bridge from the evidence
to [his] conclusions so that [the Court] may afford the claimant
meaningful review of the SSA's ultimate findings." Blakes ex
rel. Wolfe v. Barnhart, 331 F.3d 565, 569 (7th Cir. 2003). It is
not enough that the record contains evidence to support the ALJ's
decision; if the ALJ does not rationally articulate the grounds
for that decision, the Court must remand Steele,
290 F.3d at 941.
Under this standard, Ms. Malone argues, the Commissioner's
decision must be reversed because the ALJ's decision concerning
Theoplus Jr.'s paternity was incorrect under the law and not supported by substantial evidence. The Commissioner disagrees and
asks the Court to affirm the ALJ's decision.
The Social Security Act provides for a "child's insurance
[e]very child . . . of an individual who dies a fully
or currently insured individual, if such child
(A) has filed an application for child's insurance
(B) at the time such application was filed was
unmarried and . . . had not attained the age of 18
. . . and
(C) was dependent upon such individual . . . at the
time of [his] death. . . .
42 U.S.C. § 402(d)(1). In determining whether an applicant is the
child of a fully insured individual, "the Commissioner of Social
Security shall apply such law as would be applied in determining
the devolution of intestate personal property by the courts of
the State in which [the deceased insured individual] was
domiciled at the time of his death. . . ." 42 U.S.C. § 416 (h)
(2) (A). Moreover, "[a]pplicants who according to such law would
have the same status relative to taking intestate personal
property as a child . . . shall be deemed such. Id. And "[a]ny
applicant who is able to show `child' status under Section
416(h)(2)(A) is deemed `dependent' as well and is thus eligible
for child's insurance benefits under Section 402(d)(1)." Hullum
v. Sullivan, 762 F.Supp. 1324, 1326 (N.D. Ill. 1991) (citing
Mathews v. Lucas, 427 U.S. 495
, 499 n. 2 (1976)).
The record shows that Mr. Hudson was domiciled in Illinois when he died, and so, in making his determination as to Theoplus
Jr.'s status, the ALJ properly turned to Illinois law. The
Illinois Probate Act, which in Illinois governs "the devolution
of intestate personal property," provides that "[i]f a decedent
has acknowledged paternity of an illegitimate person or if during
his lifetime or after his death a decedent has been adjudged to
be the father of an illegitimate person, that person is heir of
his father . . ." 755 ILCS 5/2-2. "If during his lifetime the
decedent was adjudged to be the father of an illegitimate person
by a court of competent jurisdiction, an authenticated copy of
the judgment is sufficient proof of the paternity; but in all
other cases paternity must be proved by clear and convincing
evidence." Id. Thus, under Illinois law, Theoplus Jr. was
Hudson's heir he was, in other words, eligible to inherit
Hudson's intestate personal property. But because that Order of
Heirship, the adjudication of paternity, was not entered until
after Hudson's death, paternity would have to have been
established by clear and convincing evidence. Clear and
convincing evidence in this context is "more than a
preponderance" but less than "the degree of proof necessary to
convict a person of a criminal offense." Binion ex rel. Binion
v. Chater, 108 F.3d 780, 783 (7th Cir. 1997).
In addition to the Illinois Probate Act's provisions, the
Illinois Parentage Act provides for a presumption of paternity in
certain circumstances. First, if a man and the child's natural mother are married, either when the child is conceived or when
the child is born, or if they marry after the child is born and
the man is named on the child's birth certificate, a presumption
of paternity arises, and that presumption is rebuttable, but only
with clear and convincing evidence. 750 ILCS 45/5(a)(1), (a)(2),
(b). Additionally, if a man and the child's natural mother have
signed "an acknowledgment of paternity" or "an acknowledgment of
parentage" both specific types of documents defined and
described under Illinois law a presumption of paternity arises,
and that presumption is conclusive, unless the acknowledgment of
parentage is rescinded. 750 ILCS 45/5(a)(3), (a)(4), (b). Hudson
and Ms. Malone never married, Hudson was not named on the birth
certificate, and he never acknowledged paternity or parentage in
the manner required in the Act (or in any manner, for that
matter). Thus, none of the above presumptions would be available
to establish paternity on the part of Lamond Hudson. But, by the
same token, none of the above presumptions would be available to
establish paternity on the part of Theoplus Randolph; although he
was named on the birth certificate, he and Ms. Malone never
married, and there is nothing in the record to show that he ever
acknowledged paternity or parentage in the manner required in the
Illinois Parentage Act.
The ALJ did not specifically reference the Illinois statutes he
was applying. He did speak in terms of "clear and convincing evidence," and he did note both the Order of Heirship and the DNA
testing results, which sort of suggests that he was on the right
track. But he also determined that the DNA test results suspect
in his mind were not sufficient "to overcome the presumption of
paternity." Record at 14. This is problematic for two reasons.
First, it is not clear what presumption he was actually applying,
making it impossible for the Court to review his ultimate
conclusion. And, second, under the circumstances presented,
Illinois law does not support a presumption based on anything
other than the DNA test results, which was quite clearly not the
presumption applied by the ALJ. To the extent the ALJ presumed
Theoplus Randolph to be the father, and then required Ms. Malone
to overcome that presumption by clear and convincing evidence
which seems to be the case his decision is wrong as a matter of
law. The ALJ emphasized that Theoplus Randolph signed the birth
certificate and that he was unwilling to deny paternity. But that
would have mattered under Illinois law only if he and Ms. Malone
had married, or if he had signed "an acknowledgment of paternity"
or "an acknowledgment of parentage." And none of those things
happened here. As explained above, based on the record, Illinois
law would not permit any presumption to be made with respect to
Theoplus Randolph; certainly no presumption arises from the mere
fact that he signed the birth certificate.
The Commissioner argues that the ALJ "properly relied upon the instructions concerning Illinois state law contained in the POMS,
the operating manual through which the Agency gives instructions
to its decisionmakers," see Defendant-Commissioner's Memorandum
in Support of Motion for Summary Judgment and Response to
Plaintiff's Motion for Summary Judgment, p. 7. But those
instructions are, at best, ambiguous on the question of what an
ALJ should do, in a case like this, where paternity has been
proven, albeit in probate court, by clear and convincing
evidence. According to the POMS, which the Commissioner attached
to her brief, under Illinois law, "a child acquires the status of
child, and a father acquires the status of parent if: . . .
following the father's death paternity is proven by clear and
convincing evidence." It seems unlikely that the SSA meant to
suggest, through the POMS, that proof of paternity by clear and
convincing evidence in a probate proceeding compels a finding in
Social Security proceedings that a parent-child relationship has
been established. But the POMS, as written, certainly allows for
that interpretation. In this case, as evidenced by the Order of
Heirship, paternity was proven by clear and convincing
evidence. And, indeed, not only could Theoplus Jr. take
Hudson's property under the Illinois law governing the devolution
of intestate personal property, he did take Hudson's property
under that law. This fact would seem to suggest that Theoplus Jr.
is entitled to "child" status. See 42 U.S.C. § 416(h) (2) (A).
And the POMS does not explicitly undermine this conclusion. Moreover, even under the plain language of the POMS,
the applicable presumption here would seem to have been the
presumption that, based on the paternity test results, Hudson was
Theoplus Jr.'s father.
Also troubling is the fact that the ALJ, who presumably lacks
the scientific expertise necessary to interpret DNA test results
in a manner other than that described in the POMS (i.e., doing
more than simply assessing whether the combined paternity index
is at least 500 to 1), took it upon himself to question the
validity of the DNA test results, but then never developed the
record as to any attempts made to validate or authenticate the
test results. In fact, the ALJ invited counsel to provide
additional information, but then he immediately closed the record
and issued his decision, seemingly without providing counsel with
the opportunity to satisfy his concerns. As the ALJ acknowledged,
if the DNA test report is valid, there can be no question that
Hudson was Theoplus Jr.'s father. The additional probate records,
which were introduced in this Court but were not included in the
record before the ALJ possibly because the ALJ closed the
record prematurely may shed some additional light on the
subject. Those records, which cannot be considered by this Court
in the first instance, would seem to show that an Illinois court,
applying the very law the ALJ is supposed to be applying, decided
that, in fact, the paternity test constituted clear and
convincing evidence of paternity. Implicit in that decision is a finding that the chain of custody and
authentication concerns, to the extent they existed, were
satisfied. See 750 ILCS 45/11 (the section of the Illinois
Parentage Act requiring chain of custody documentation for blood
or tissue samples tested, or some form of certification to
validate DNA tests). In light of this, it would seem to make
sense, in the interests of fairness and justice, to remand the
case to the ALJ to see whether any doubts still remain about the
validity of the DNA test results, and whether such remaining
doubts can be resolved once and for all.
For the reasons set forth above, the Court grants Ms. Malone's
motion for summary judgment and denies the Commissioner's motion.
The case is remanded for further proceedings consistent with this