*1 EASTERBROOK, Before FLAUM and WILL, Judges, Senior District Judge.* * designation. Illinois, sitting Will, District the Northern The Honorable Hubert L.

EASTERBROOK, Judge. support were minimal. The child’s comes from the mother. The administrative law Schindel, Gary R. Van the son of Bar- judge concluded Gary that C. had not fur- Gary Schindel, bara Dubinski and C. Van Gary nished either R. or Barbara the sort February was bom about 672 support required of by 20 C.F.R. 404.- § months after his father’s death. Barbara 366(a)(2), which “contributing defines married, Gary engaged and C. were be support of”: together did not live after she During pregnant. became the 272 months Contributions must regularly be made Gary conception Gary between R.’s large enough and must be to meet an death, Gary provide regular did not C.’s C. important part your [i.e., the child’s] support financial Barbara. 1980 Bar- ordinary living Ordinary living costs. application Gary bara filed an R.’s be- food, shelter, costs your costs for half for survivor’s benefits under the Social care, routine medical and similar necessi- Act. U.S.C. person ties. If the insured only provides 416(h)(3)(C)(ii),establishing the terms on § gifts or donations once in a while for which an recover on special purposes, they will not be con- parent’s earnings. basis of a deceased your sidered contributions support. judge rejected The administrative law regulation perfect is not a match with claim, concluding Gary pro- C. had not case, ours, such as in which the insured support vided the level of to Barbara and wage earner dies before the child is bom. Gary required by R. governing regula- judge The administrative responded by law tion, 404.366(a)(2). 20 C.F.R. § inquiring only Gary sup- not whether C. ported Gary R. but sup- also whether he In the Gary district court Barbara and R. ported Barbara. The concedes pinned principal hopes their on a constitu appropriate. that this modification is challenge 416(h)(3)(C)(ii), tional and the § before the administrative magistrate recommended that the district judge showed that Barbara had a medi- court declare the statute unconstitutional. cal examination two months preg- into her judge disagreed, district a sub nancy paid but could not sequent recall who case this court sustained the stat examination. ute. Barbara also testified that Imani v. — (7th Cir.), denied, U.S. —, Gary helping way cert. C. “was me out in that (1986). he’d, know, you S.Ct. help buy The con ... me ... argument clothes, stitutional stronger. things context, here is no like that.” “in applies As the statute to this Gary way” suggests R. Gary C. is entitled to survivor’s if occasion, benefits although cash on Barbara did not Gary. living can establish that C. “was with attempt to quantify the donations. The contributing or support appli to the Gary “help” statement that C. would Bar- cant at the time such insured individual “buy bara clothes” could mean that he 416(h)(3)(C)(ii). died.” 42 Gary her, shopping went with but it could also Barbara, living was with so whether he indicate purchas- contributions toward the “contributing support Gary of” meager es. This support evidence of did question. R. becomes the central not convince the judge administrative law Gary “regu- C. had made contributions course,

The difficulty, larly” or that is that it is hard contributions met “an important food, to “contribute to the person part” of” a of Barbara’s costs of yet During born. shelter, care, the 272 months be- medical or other necessities. conception tween R.’s C.’s The district court found this conclusion death, Gary evidence, R. had little “support” supported by need of substantial as do Barbara; apart from even medical needs we. open question leave whether this appeals

Three held that circuit courts shortly follow when the need to dies before af will choose when the father squarely Neither case regulation presented. explic- the child is born should ter issue, itly because in each inquiry in favor of the wheth discussed be discarded failed even to claimant meet er the father made contributions “commen Adams standard. We treat Imani with the needs unborn child surate *3 the Adams using as ar- death”. standard the time of the father’s at Schaefer as Weinberger, 656, (2d guendo, v. shall we. F.2d 660 Cir. 521 v. also Parsons Health and 1975). notwithstanding that the states Schaefer Services, 762 F.2d 1188, (4th 1191 difficulty showing of contributions to the Schweiker, Doran v. Cir.1985); 681 F.2d unborn, “support” tangible “some Cir.1982). (9th opinions Our in 608-09 support required justify is an still to award v. Imani and Schaefer 416(h)(3)(C)(ii); of benefits under section a Cir.1986), (7th sympathy indicate some 81 expectation support mere of from the in of Adams. approach the and with Barbara wage enough.” sured earner is not of essen Gary R. claim the benefit Johnson v. Sec also, e.g., F.2d at 86. See tially arguing that because an unborn child retary, Cir.1986). Schae F.2d conception signifi has 2V2 months after no promises marry held to pay that and fer “needs”, support lack of from cant the hospital expenses of the mother did not view, unimportant. On Gary C. is this statutory requirement, although fulfill the Gary support Gary the R. C. all “support opinion suggests the that to cover unjust deny it is needed —none—and to prenatal medical care as costs for well as just Gary request for benefits R.’s because for preparing baby’s costs incurred in his father died there had an before as, purchase example, such for arrival clothing” (id. support. opportunity provide to 86-87) might be of suffi Imani held that occasional support cient. Secretary regula defends enough. is not mother by observing tion that survivor’s benefits Imani spent money in some “apparently on designed replace support by the to lost and and the beer food when [he mother] earner, wage something demise of the together, say ex were these Mathews in Supreme emphasized Court 416(h)(3)(C)(ii) penses satisfy means that Lucas, 96 S.Ct. 427 U.S. support, which, courtship is tantamount (1976), in and we reiterated Act, purposes in of view ... Imani and Schaefer. Gary really If R. had F.2d at cannot be correct.” needs, pros lost was no then what was gifts support, Gary a occasional of cash pect of future time when C.’s perhaps clothing courtship Yet and also are Gary R. need it. is settled support “support” not support. of does rather than Barbara’s prospect a lost savings. from came her own record establish entitlement survivor’s benefits. sufficient, Gary paid not then does show that Bar prospect lost were If a significant though care or donated qualify child could for benefits even bara’s medical parties supplied support amounts of cash. The parent the deceased never find, cited, any and any during parent’s life. The we could not case hold of kind statute, compels ing that so thin an award makes contributions to the which most that could be is support eligibility child’s a condition of of benefits. The said benefits, money Gary saving precludes approach an that dis C. was that could which, support regards support. be used from actual child — expectation perspective, R.’s an is Imani Although did not Schaefer unalloyed form. future regulation’s regular-support endorse therefore they approach The record this case does neither did embrace to benefits gifts, establish an entitlement under support, under which no occasional Imani approach regulation either or an more would be sufficient. Although position Bar- ous having prove that, to the claimants. favorable while fetus, “dependent” Gary R. ask us to remand the bara and his father. they case to the so that enacting It is clear the Social evidence, they did not ask the adduce Congress Act did not consider the relief, district court for this also this, rare such as in which the father suggest do not what additional evidence is of an child dies before the child available, why this evidence would estab- concept “dependency” born. The has benefits, why lish an entitlement virtually assessing no when They did not offer it before. relationship between an unborn child and represented hearing in the administrative biological reality its father. The is that a prosecuted the same firm that has “dependent” fetus is solely on its mother. They every their case in this court. had If prove R. Van Schindel must present reason to at the time administrative law of his father’s he was *4 judge any evidence; actually dependent available bit of on his his claim However, must fail. if they present, likely dependence could the more actual an required, the claims of all children—le- award of benefits. The difference between gitimate illegitimate or are born af- the standard under 20 C.F.R. 404.- § —who ter the death of their father must also 366(a)(2) fail. and that of Adams does not affect present evidence, claimant’s incentive to denying Rather than survivor’s benefits accordingly and there is give no reason to any child born after his or her father’s the claimants here evidentiary another death, Security the Social Administration hearing. assumes that parents a fetus whose were married, 402(d)(3), see 42 U.S.C. or whose § Affirmed living mother, father was with its see id. at 416(h)(3), or whose support- father was § FLAUM, Judge, dissenting. mother, (1968), ing its SSR 68-22 was “de- pendent” on the father Security provides The Social at the time of his Act that ev- death. The fact that the ery parent Security child whose Social is insured provides Administration benefits to Security System Social these “shall be entitled to actually children—who were if, “depend- a child’s insurance benefit” at the time ent” on their fathers at the time of their parent’s death, of the insured the child was suggests “dependent” must “dependent” parent. on the 42 U.S.C. deaths — given special meaning applied be when 402(d) (1982 Supp.). & 1985 Under the § a fetus. Weinberger, Jimenez v. 417 Act, legitimate all children are “deemed Cf. 628, 634-35, 2496, 2500-01, U.S. 94 S.Ct. 41 dependent” parent. on the insured (The (1974) availability L.Ed.2d 363 of dis- 402(d)(3). addition, In those ille- § ability legitimate benefits to children born gitimate parentage children whose is estab- parents’ disability after their demonstrates lished par- before the death of the insured “dependents” does not mean dependent.” ent are also “deemed Id. support.”). those who lost “actual However, illegitimate children whose in- parent establishing par- sured dies without determining what it means for a fetus entage “dependent” considered if “dependent” 416(h)(3) have under § that, they demonstrate at the time of their because its father to” its “contribut[ed] death, parent’s parent insured was “liv- “support,” give “depend- we should seek to ing “contributing “sup- with” or to” their ent” a that best harmonizes this 416(h)(3). port.” at Id. Because C. provision provisions with the other died six Van Schindel months before his Security Supreme Social Act. The Court born, illegitimate child was he had no prove has made clear children meaningful opportunity pater- to establish dependent merely by were assert- result, that, nity. ing death, As a in order to obtain parents’ surviv- because of their benefits, placed or’s his son is “potential the curi- lost a source of lifetime Lucas, 495, approach prevent This seeks support.” Mathews v. U.S. “claims n. n. 96 S.Ct. 2763-64 from children who have no financial inter- added). (1976)(emphasis This est their father’s deaths but for the apply the unborn. certainly should Con- possible windfall benefits that the Social sequently, possibility the mere had Security upon Act would bestow them.” lived, have might the father Adams, 521 F.2d at 659-60. At the same support to the fetus after its birth is not time, keeping presump- with the broad that his unborn sufficient to demonstrate Security tions that the Social Act extends time, “dependent.” child was At the same children, gives illegitimate to most it chil- Adminis- the fact that Social dren after the death born of their fathers if, “dependent” tration will deem a fetus benefit doubt. parents the time of its father’s its majority suggests that while we married, living together, or if its expressed support for the Adams mother, supporting its is also father was yet adopted Supra, we have not it. provide significant. parental These actions disagree. Heckler, strong begun that the father had (7th Cir.1986), F.2d 81 we evaluated the in a that makes it reasonable to act manner plaintiff’s claim for survivor’s benefits us presume actually that he would have ing the Adams standard. id. at 86-87. In a supported the child once was born. In Imani v. 797 F.2d 508 manner, determining whether similar when Cir.1986), further, stating we went unam “dependent” fetus be- biguously applicant that “when the is an “contributing” to its cause its father was *5 alleged his born after fa Security support, the Social Administration ther ... dies ... the should con should determine whether the while alleged sider whether the aid is commensu alive, pro- had taken concrete actions that rate with the needs of the unborn child at that, significant a indication but for vide time of the father’s demise.” the Id. at 513 death, untimely his he would have assumed (citing Schaefer). It is true that in both appropriate responsibility for his child after cases we concluded that even under the its birth. Adams standard the claimants were not Realizing special in- the considerations sense, In entitled to benefits. the strictest illegitimates,” with “afterborn sev- volved therefore, in our comments Schaefer adopted circuits have a test that seeks eral Imani could be dismissed as dicta. To do determine whether the father’s actions to so, however, be, view, my in that, provide sufficient evidence had death excess of formalism. The relevant fact is intervened, his he would have fulfilled that in both cases we utilized the Adams inter- responsibilities. These courts have reaching test our decision. We have also preted requirement the father Secretary of directed the Health and Hu support” of the “contribut[ed] to do so in man Services future cases. Id. child to mean that the father must have Reopening question this can lead to “commensurate with made contributions additional, uncertainty litiga needless child at the time of the need of the unborn tion. the father’s death.” Adams v. Wein- (2d Cir.1975). berger, 521 F.2d majority While the does not consider it- pragmatically test looks at the Adams by give bound do self Adams point in father’s resources and the However, I some consideration to it. be- rec- pregnancy at which he died. test fully lieve that have not considered by poor ognizes that a small contribution a in this specific facts at issue case. The pregnancy a suffi- early man can be majority suggests that C. Van Schin- that, lived, he he cient indicator had would del, father, supplied support, no either responsibility his child. have taken 613, or, best, gifts made supra at mother, “courtship” Barbara Dubin- to test mirrors the overall bal- ski, These Security supra that the Social Act strikes. at 613. assertions do not ance $8,000 significant year efforts that Ms. earned and died address several when his alleges fetus, that Mr. Van Schindel Dubinski child was a five month old made opinion of the Administrative made. The regular weekend visits to the mother and dispute Judge Law indicates that he did gave pay her to for transportation $50 Specifically, these claims. Ms. Dubinski Here, again, costs to the doctor. the court alleges encouraged Mr. Van Schindel held this to be sufficient meet the Ad- her a doctor to determine whether to see standard.2 ams he her pregnant; accompanied she was that, given I believe Mr. Van Schindel’s office; he the doctor’s continued work resources, limited financial very began money steadily; to save stage early pregnancy in the at which he baby; an effort to a mar- he made secure died, he made contributions “commensu- license; riage he travelled from the town in rate with the needs of the unborn child at spend which he worked to each weekend the time of death.” [his] Dubinski; occasionally and he with Ms. that, at 660. His actions indicate but for or other cash assistance.1 untimely death, his he would have fulfilled concerning Mr. Van Schin- The evidence responsibilities his son. Consequent- to his parental acceptance impending del’s of his ly, support,” his “contribution] greater responsibility is far than the evi- 416(c)(3), Gary R. Van Schindel dence in either or Imani. son “dependent” was sufficient to make his Schaefer, the father’s efforts were his on him within the of the Social vague “promise marry promise and his would, therefore, reverse, Act. expenses.” pay hospital Schaefer, judgment enter the appellant. Imani, F.2d at 86. clear his had time of indi- conduct cated his that he would not take necessary Imani, responsibility. See

797 F.2d at 513. Schindel’s were also C. Van efforts than extensive that of the father *6 Henry HALE, Plaintiff-Appellant, H. Schweiker, (9th Doran v. F.2d v. Cir.1982). Schindel, Like Van MARSH, impoverished father in was an John O. as of the Army, Defendant-Appellee. worker who died when his was a three child Despite month old fetus. the fact that his No. 85-2942. transport “contributions” were to United of Appeals, States Court belongings mother’s to a cabin and to re- Seventh Circuit. roof, turn on one occasion to fix court held that his efforts sufficient Submitted 1986. Nov. to meet the Adams Mr. standard. Van Decided Dec. 1986. comparable Schindel’s efforts are at least to those father in Parsons Health Services, F.2d

Cir.1985). In that who 1. I find it ironic that if Mr. Van Schindel had C. Van Schindel's contributions were not Dubinski, quit job, great as his moved in with Ms. as case, those of the father in Adams. In that relief, gone $400 their son would have auto- contributed the mother eligible Security, matically see 42 apart- for Social and allowed her to live rent free in his However, 416(h)(3), opportunity that because re- ment. the father’s greater save mained in town so he could mon- was far that case. another The father ey, operator his is to be denied benefits. cannot was the of a Manhattan restaurant who Congress pregnancy. would sanction so absurd until the seventh believe lived month a result. 521 F.2d at 660.