Barbara Dubinski for Gary R. Van Schindel v. Otis R. Bowen, Secretary of Health and Human Services , 808 F.2d 611 ( 1986 )

EASTERBROOK, Circuit Judge.

Gary R. Van Schindel, the son of Barbara Dubinski and Gary C. Van Schindel, was bom in February 1971, about 672 months after his father’s death. Barbara and Gary C. were engaged to be married, but they did not live together after she became pregnant. During the 272 months between Gary R.’s conception and Gary C.’s death, Gary C. did not provide regular financial support to Barbara. In 1980 Barbara filed an application on Gary R.’s behalf for survivor’s benefits under the Social Security Act. See 42 U.S.C. § 416(h)(3)(C)(ii), establishing the terms on which an illegitimate child may recover on the basis of a deceased parent’s earnings. The administrative law judge rejected the claim, concluding that Gary C. had not provided the level of support to Barbara and Gary R. required by the governing regulation, 20 C.F.R. § 404.366(a)(2).

In the district court Barbara and Gary R. pinned their principal hopes on a constitutional challenge to § 416(h)(3)(C)(ii), and the magistrate recommended that the district court declare the statute unconstitutional. The district judge disagreed, and in a subsequent case this court sustained the statute. Imani v. Heckler, 797 F.2d 508, 513 (7th Cir.), cert. denied, — U.S. —, 107 S.Ct. 580, 93 L.Ed.2d 583 (1986). The constitutional argument here is no stronger. As the statute applies to this case, Gary R. is entitled to survivor’s benefits only if he can establish that Gary. C. “was living with or contributing to the support of the applicant at the time such insured individual died.” 42 U.S.C. § 416(h)(3)(C)(ii). Gary C. was not living with Barbara, so whether he was “contributing to the support of” Gary R. becomes the central question.

The difficulty, of course, is that it is hard to “contribute to the support of” a person not yet born. During the 272 months between Gary R.’s conception and Gary C.’s death, Gary R. had little need of “support” apart from Barbara; even medical needs were minimal. The child’s support comes from the mother. The administrative law judge concluded that Gary C. had not furnished either Gary R. or Barbara the sort of support required by 20 C.F.R. § 404.-366(a)(2), which defines “contributing to the support of”:

Contributions must be made regularly and must be large enough to meet an important part of your [i.e., the child’s] ordinary living costs. Ordinary living costs are the costs for your food, shelter, routine medical care, and similar necessities. If the insured person only provides gifts or donations once in a while for special purposes, they will not be considered contributions for your support.

The regulation is not a perfect match with a case, such as ours, in which the insured wage earner dies before the child is bom. The administrative law judge responded by inquiring not only whether Gary C. supported Gary R. but also whether he supported Barbara. The Secretary concedes that this modification is appropriate.

The evidence before the administrative law judge showed that Barbara had a medical examination two months into her pregnancy but could not recall who paid for the examination. Barbara also testified that Gary C. “was helping me out in that way ... he’d, you know, help me ... buy clothes, things like that.” In context, “in that way” suggests that Gary C. provided cash on occasion, although Barbara did not attempt to quantify the donations. The statement that Gary C. would “help” Barbara “buy clothes” could mean only that he went shopping with her, but it could also indicate contributions toward the purchases. This meager evidence of support did not convince the administrative law judge that Gary C. had made contributions “regularly” or that the contributions met “an important part” of Barbara’s costs of food, shelter, medical care, or other necessities. The district court found this conclusion supported by substantial evidence, as do we.

Three courts of appeals have held that when the father dies before or shortly after the child is born the regulation should be discarded in favor of the inquiry whether the father made contributions “commensurate with the needs of the unborn child at the time of the father’s death”. Adams v. Weinberger, 521 F.2d 656, 660 (2d Cir.1975). See also Parsons v. Health and Human Services, 762 F.2d 1188, 1191 (4th Cir.1985); Doran v. Schweiker, 681 F.2d 605, 608-09 (9th Cir.1982). Our opinions in Imani and Schaefer v. Heckler, 792 F.2d 81 (7th Cir.1986), indicate some sympathy with the approach of Adams. Barbara and Gary R. claim the benefit of Adams, essentially arguing that because an unborn child 2V2 months after conception has no significant “needs”, the lack of support from Gary C. is unimportant. On this view, Gary C. provided all the support Gary R. needed — none—and it is unjust to deny Gary R.’s request for benefits just because his father died before there had been an opportunity to provide support.

The Secretary defends the regulation by observing that survivor’s benefits are designed to replace support lost by the demise of the wage earner, something the Supreme Court emphasized in Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976), and we reiterated in Imani and Schaefer. If Gary R. really had no needs, then what was lost was the prospect of future support, at a time when Gary R. would need it. Yet it is settled that a lost prospect of support does not establish entitlement to survivor’s benefits. If a lost prospect were sufficient, then a child could qualify for benefits even though the deceased parent never supplied support of any kind during the parent’s life. The statute, which makes contributions to the child’s support a condition of eligibility for benefits, precludes an approach that disregards actual support.

Although Imani and Schaefer did not endorse the regulation’s regular-support test, neither did they embrace an approach under which no support, or occasional gifts, would be sufficient. Imani and Schaefer leave open the question whether this circuit will follow Adams when the need to choose is squarely presented. Neither case explicitly discussed the issue, because in each case the claimant failed even to meet the Adams standard. We treat Imani and Schaefer as using the Adams standard arguendo, as shall we.

Schaefer states that notwithstanding the difficulty of showing contributions to the “support” of the unborn, “some tangible support is still required to justify an award of benefits under section 416(h)(3)(C)(ii); a mere expectation of support from the insured wage earner is not enough.” 792 F.2d at 86. See also, e.g., Johnson v. Secretary, 801 F.2d 797 (6th Cir.1986). Schaefer held that promises to marry and pay hospital expenses of the mother did not fulfill the statutory requirement, although the opinion suggests that “support to cover medical costs for prenatal care as well as costs incurred in preparing for the baby’s arrival such as, for example, the purchase of clothing” (id. at 86-87) might be sufficient. Imani held that occasional support for the mother is not enough. The father in Imani “apparently spent some money on beer and food when [he and the mother] were together, but to say that these expenses satisfy § 416(h)(3)(C)(ii) means that courtship is tantamount to support, which, in view of the purposes of the Act, ... cannot be correct.” 797 F.2d at 513.

Gary C.’s occasional gifts of cash and perhaps clothing also are courtship rather than support. Barbara’s “support” came from her own savings. The record does not show that Gary C. paid for Barbara’s medical care or donated significant amounts of cash. The parties have not cited, and we could not find, any case holding that evidence so thin compels an award of benefits. The most that could be said is that Gary C. was saving money that could be used to support the child — which, from Gary R.’s perspective, is an expectation of future support in unalloyed form.

The record in this case therefore does not establish an entitlement to benefits under either the regulation or an approach more favorable to the claimants. Although Barbara and Gary R. ask us to remand the case to the Secretary so that they may adduce more evidence, they did not ask the district court for this relief, and they also do not suggest what additional evidence is available, why this evidence would establish an entitlement to benefits, and why they did not offer it before. They were represented in the administrative hearing by the same law firm that has prosecuted their case in this court. They had every reason to present to the administrative law judge any available bit of evidence; the more they could present, the more likely an award of benefits. The difference between the standard under 20 C.F.R. § 404.-366(a)(2) and that of Adams does not affect a claimant’s incentive to present evidence, and there is accordingly no reason to give the claimants here another evidentiary hearing.

Affirmed