*2 Hamilton.3 of Mr. KEITH, Before ENGEL and Circuit request Appellant’s hearing, After for a PHILLIPS, Judges, Senior Judge (ALJ) Law con- an Administrative Judge. 3. These lows: dren, James relationship about gust od, The birthdates It dies a ance benefits 216(e) of Section such APPLICABLE of such 402(d)), as ^[******] Mrs. (A) (C) “(1) Every appears (ii) n all twenty (20) years. child- H. was if has filed requirements are as follows: ^[******] fully whom were fathered Boyland such death Hamilton, 202(d) of this with from dependent or pertinent respectively. individual title) currently ... STATUTORY Mrs. Nannie Lou alleged the record ... of an individual who lived (as June the Act upon here, she bore five During had insured defined in 27, for child’s insur- such by died, provides a PROVISIONS this time 1959 and Au- the deceased. common-law individual, Boyland (42 individual- at the deceased, (5) section as fol- U.S.C. peri- chil- if vides: (42 efit such individual tributing father and such cause the father of the been other individual adopted Section (1)(C) evidence time such insured tribute court order such insured individual “A uting U.S.C. (B) shall (A) (III) (ii) (II) child shall be deemed ...” insured such the father of the such child has been had been decreed such child is neither of this had been ordered ... at the be entitled 202(d)(3) child of satisfactory applicant acknowledgment, 402(d)(3)), insured individual was made before subsection, unless, applicant, individual, was not such time to a child’s insurance ben- individual'died.” was as individual, specified or by a court or applicant, his son or of such here dependent living by applicant court decree pertinent, pro- legitimate applicant is shown with or at such child or or paragraph daughter, and such to be the by death upon contrib- to con- to have at the and— some time, con- Act nor be- by or the case de novo and on October At argument sidered oral court, before this Ap denying pellant Boyland rendered a decision the sur separate raised a issue for viving child’s insurance benefits. In the first time: is the proper time for mak ing ALJ, the evidence failed to determination of view contributing that either of the children was the to the support establish *3 the children the time wage earner of the wage “child” of the deceased within earner’s death, as has been assumed meaning throughout of the Act.4 The Appeals the the litigation, or at the time wage the judgment the of the ALJ Council himself became entitled to Social Security which became the final decision of the Sec benefits?6 Because we viewed this ques retary of Education and Welfare on tion as one impression, of first both parties February received additional time to brief the issue. Appellant then filed suit the district Appellant urges this court adopt to the judicial court to review of the obtain Secre vesting theory of entitlement. This theory tary’s Although final decision. the District asserts that proper the moment to deter- Secretary’s finding Court held that the mine whether the father of a child born out wage the deceased earner was not the fa of wedlock contributed to the support of the unsupported ther of the two children was ehild(ren) is when wage the earner himself record, by substantial in the evidence the became entitled to the bene- granted summary judgment Court for the fits.7 early This “vesting” would eliminate Secretary. The District ruling Court’s any examination into the nature of the the deceased Hamilton was the father of wage earners’ contributions to his children’s the two children would entitle the claimants support just before his except death when question to the benefits in providing the wage the earner dies before he becomes wage earner was also found to be entitled to benefits. Such would be the contributing with or of the case, argues the appellant, even though the children at the of his death. 42 U.S.C. child did apply not for benefits until after 416(h)(3)(C)(ii). By granting summary the earner died. judgment Secretary, for the the district court found substantial evidence that the government argues that contribution contributing deceased was not to the sup should be determined at the time of the port of the children at the time of his wage earner’s death because to do other- death.5 wise conflicts with plain the meaning of the 3, supra. 4. See n. answered as of the time the earner be- came entitled age to benefits or reached the 1975, following departure In March of the first, whichever came in accordance with 42 decedent, plaintiff application the stated her 416(h)(3)(A)(ii). (2) for those benefits that “the other two chil- [Marilyn Knight] dren and Lorenzo live with Appellant Richardson, relies on Florio v. [plaintiff Boyland] me Nannie Lou and Mr. vesting theory. (2d his 469 F.2d 803 contributing sup- Hamilton was not to their Florio, 1972). Cir. appellants, In unlike the port.” coupled testimony This admission stepchild had filed an (that was re- Hamilton withdrew what little aid he was ceiving stepfather’s benefits under his giving being account. 1972 after around convinced that attempted After he plaintiffs marry stepchild’s to terminate decision to someone else actually pre-existing relationship) benefits so that severed their his natural child would have constituted the substantial the full evidence. amount of the benefits. The Second stepchild ruled that could not be 6. Teresa Ann CCH Unem- divested of subsequent benefits because of 15,709 ployment Reports, (E.D.Cal. Insurance disqualified events which step- would have 10, 1978), Jan. was the first district court deci- child had the followed rather than holding illegitimate sion that where an preceded However, the divorce. the Florio applies upon for child’s benefits based the earn- repeated court makes reference to the situation ings parent record the deceased who had application.” “at g., id., the time of See e. already old-age become entitled to benefits the 806-7. question of whether or not the deceased was contributing of the child is be to interpret is that However we decline to While it true the intro- applicable statute.8 phrase 416(h)(3)(C)(i) stat allegedly applicable ductory “in heading of the case, “In 416(h)(3)(C)(ii), states ute, of a applying deceased individual” as 42 U.S.C. § individual”, ques only prior a deceased age where the insured died the case intended an Congress whether prior eligibility remains tion benefits.10 There upon vesting based moment of earlier qualifying are no such words in the statute earner where date of eligibility excluding those deceased individuals who ato determi prior died wage earner has eligible they benefits before died.11 eligibility. nation conclude, Consequently we from word- statute, Congress ing provided II. opportunities for applying “child” two opinion We are of One, earner, benefits: him- *4 by claimant determines the application self, eligible becomes for benefits and the or 42 416(h)(3)(C)(ii) 42 § whether U.S.C. other, wage earner dies. Unless In other 416(h)(3)(A)(ii) controls. application an has been filed the by child or filing the words, vesting by occurs any behalf, rights its may exist, on whatever the provisions of Other application.9 the inchoate. We remain conclude that the example For conclusion. support Act this government is correct on this issue and we a to 402(d)(1)(A) requires 42 § U.S.C. must make an overall examination of the to before entitlement file an wage earner’s contributions to children “vests.” We benefits insurance child’s he before died. to an intended create Congress that think a determine whether time to alternative III. wage earner “contributed” deceased universally There is no accepted test wage the the while support of claimant determining what constitutes “contributing filed an plaintiff Had the was alive. eamer the applicant,” to the prior to Hamil under Mr. benefits 416(h)(3)(C)(ii) of Act. death, controlling statutory provi majority the A § the ton’s sup apply regular either courts a and that “contribution substan- sions indicate “support “regular test” may be shown at the tial or a and the children” contin- port of approaches earner. uous test.”12 eligibility the Both time of 6, 416(h)(3)(C)(ii). particular 42 at U.S.C. time. Id. at 100 S.Ct. 900 added). (emphasis 8, supra. 9. See n. See 4 Id. also n. the court in Jo- understand that district Lalli, 259, 10. We 518, Lalli v. 439 U.S. 99 S.Ct. 58 seph supra, the view has v. Lucas, (1978); L.Ed.2d 503 Mathews v. 427 rejected by explicitly this on facts 49, 495, 2755, U.S. 96 S.Ct. 49 L.Ed.2d 651 presented. We that in factual note (1976). pattern the indicate(d) Kennedy (insured) Board, that F.Supp. “evidence Carey 62 v. liquor in white store owner a black applied regular was a (W.D.Ky.1945), first 458 Kentucky plaintiff’s community and that twenty-five holding test that and substantial year-old at the was a black female mother 13 expenses percent the child’s total satisfied bastardy conception. plaintiffs No cases, subsequent the critical In the standard. Kennedy brought against because action portion of the to be what continued factor repercussions might have of the racial support was from the contribu- child’s derived town; action, if suc- in the such an Califano, arisen Unemploy- Miller v. CCH See tion. cessful, dispute avoided the un- would have 15,370 (E.D.La. Reporter, # ment Insurance 416(h)(3)(A)(i) or section der the terms of “regular 1971). continuous” standard and 416(h)(3)(C)(i). Id. 2199-65. response propounded to claim where a Vietnam, position father, casualty ample on had contrib- for our find 11. We Clark, 445 v. habiliments. question. United States and some infant this See uted six dollars 895, (1980). sporadic 63 171 L.Ed.2d “contributions” 100 S.Ct. found such The court Richardson, insignificant. Norton Moreover, and F.Supp. Congress demonstrated (D.Md.1972), and remand- vacated legislation knows it other social welfare ed, Weinberger, 418 U.S. Norton v. eligible sub nom. bene- how restrict the class of to on remand 41 L.Ed.2d 94 S.Ct. at a to those [individuals] ficiaries gave are in- ous occasions contributions to “sporadic” $5.00-$10.00 his chil stress that vis-á-vis analytical purposes (living mother) dren with their or to significant for others physical them, Act, because the presumably bought them clothing and by gave child is not enhanced being presents, money them lunch well and al precisely This is stay them sporadic contributions. lowed in his home for weeks at argument, In its Secretary’s position. a time. We ignore cannot the obvious im earner Secretary portance concedes of these contributions to Marilyn contributions, were .... “(t)hey made some Knight.15 Lou and Lorenzo stopped probably had not continuous The lack of well-being economic or regu- Hamilton’s before altogether sometime lar income does statutory not eliminate the contributions, therefore, death. Hamilton’s However, requirement of “contribution.” either as sufficient under qualify cannot where resources of the earner are Assuming, as the main- test.”13 scarce and the contributions to his children tains, are Hamilton’s contributions that Mr. them, important statutory require- test,” we find the inadequate under “either can be emphasize ments satisfied. We circum- inappropriate under these tests periodic contributions were made to the stances. wage earner’s own children albeit born out of wedlock. The regular children should not Obviously, continuously be denied benefits just because is a standard substantial contributions *5 only irregular payments. could afford small regular is when earner’s income But where the income of a and substantial. Accordingly, we that the find decision of substan continuity lacks and Henry that James Hamilton tiality contributions are nevertheless and was not contributing of his ap criterion should be given, a different children, Mary two Lou and Lorenzo poor and plied. earner is Where Knight, unsupported by is substantial evi- income, it is ludicrous to irregular earns an This dence. case is reversed and remanded and require regular payments substantial for an award of benefits. or out of wedlock not. his children born is him wage-earner barely supporting ENGEL, Judge, concurring Instead, focused self. attention should be part dissenting part. and contributions that were on whether I agree majority with the that the time support of made to the his children determining whether the decedent con- important given their needs to them tributed to the Marilynn and earner’s economic circumstances Knight Lorenzo time of his support.14 place ability Certain facts death. I would affirm the denial of bene- category. this case within above fits, however, agree because I with United Mr. James Judge conclusion, At the time his death District States Morton’s Henry a retired stone mason which he personal Hamilton reached with admitted regret, with a income. Two of his chil minimum substantial evidence supported findings dren lived him. Two others lived with Secretary. In my opin- mother, Boyland, their Mrs. Nannie Lou ion it is not the role of our court to substi- alternatively pub on judgment who worked or relied tute its of the Secretary. put, additional De support. Simply lic assistance for is the majority what spite poverty, Mr. Hamilton on numer- done here. F.Supp. regulations 390 affirmed sub nom. Norton v. 15. Even the recognize “support” 427 U.S. 96 49 S.Ct. Administration in- cash, food, L.Ed.2d things cludes addition to such as shelter, clothing ordinary and other and cus- Appellee 13. Brief of at 17. tomary person items for the maintenance of the supported. 404.350(c). C.F.R. Matthews, F.Supp. Santiago (E.D.N.Y.1977).