* Effective March 31, 1995, the functions of the Secr etary of Health

and Human Services in social security cases were tr ansferred to the Commissioner of Social Security. P.L. No. 103-296. Pursuant to Fed. R. App. P. 43(c), Shirley S. Chater, Commissioner of Social Security, is subs tituted for Donna E. Shalala, Secretary of Health and Human Services, as the defe ndant in this action. Although we have substituted the Commissioner for the Secretary in the caption, in the text we continue to refer to the Secretary b ecause she was the appropriate party at the time of the underlying decision. PUBLISH UNITED STATES COURT OF APPEALS Filed 7/31/96 TENTH CIRCUIT

VELMA L. MORNES, on behalf of JESSE L. NORMENT and COLECIA NORMENT, Plaintiff-Appellant,

v. SHIRLEY S. CHATER, Commissioner of Social Security Administration, *

Defendant-Appellee. No. 95-5244

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. No. 90-C-97-M)

Submitted on the briefs: Paul F. McTighe, Jr., Tulsa, Oklahoma, for Plaintif f-Appellant.1 After examining the briefs and appellate record, th is panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral ar gument.

2 The parties consented to disposition of the case by the magistrate judge pursuant to 28 U.S.C. § 636(c). Accordingly, our j urisdiction over this appeal derives from § 636(c)(3) and 28 U.S.C. § 1291. -2- Stephen C. Lewis, United States Attorney, Phil Pinn el, Assistant U.S. Attorney, Joseph B. Liken, Acting Chief Counsel, Social Secur ity Administration, Tina M. Waddell, Acting Deputy Chief Counsel, Social Securi ty Administration, Randall Halford, Assistant Regional Counsel, Office of the General Counsel, Social Security Administration, Dallas, Texas, for Defendant-Appellee.
Before EBEL, BARRETT, and HENRY, Circuit Judges.
HENRY, Circuit Judge.

Plaintiff Velma Mornes, on behalf of her children, claimants Jesse L. Norment and Colecia Norment, appeals 1 the magistrate judge’s decision affirming the Secretary’s ruling denying her request for chil dren’s benefits under the Social Security Act. 2 Claimants’ applications were denied both initiall y and on reconsideration. After a hearing, the administrati ve law judge (ALJ) also denied their request. On appeal, the magistrate judge con cluded additional evidence might be relevant and ordered a remand. A second h earing was held, at which plaintiff and the claimants were represented by cou nsel. The ALJ again denied-3-

benefits, finding that the claimants were not the c hildren of the deceased and were not entitled to surviving children’s benefits becau se the insured was not living with them and was not contributing to their supportat the time of his death. On appeal to the district court, the magistrate judge found that there was evidence the children were the children of the deceased wage ear ner, but affirmed the ALJ’s denial of benefits because there was substantial ev idence supporting the ALJ’s finding the deceased was not living with or support ing the children at the time of his death. Plaintiff appeals this finding. “Our review of the district court’s decision is lim ited to determining whether the record as a whole contains substantial evidence to support the Secretary’s decision and whether the Secretary appl ied the proper legal standards. In child benefit cases, the claimant bears the burd en of proving entitlement as the child of a deceased insured wage earner.” Younger ex rel. Younger v. Shalala , 30 F.3d 1265, 1267 (10th Cir. 1994)(citation omitted). Under the Social Security Act, the unmarried minor child of a deceased individual who was insured under the Act may receiv e survivors’ benefits if he or she was “dependent upon such individual” prior to h is death. 42 U.S.C. § 402(d). Because claimants were unable to satisfy alternativ e statutory criteria for child survivor benefits, claimants were required to meet the criteria of-4-

42 U.S.C. § 416(h)(3)(C)(ii), which provides that achild is deemed to be the child of an insured if: such insured individual is shown by evidence satisf actory to the [Secretary] to have been the mother or father of th e applicant, and such insured individual was living with or contributing to the support of the applicantat the time such insured individual died. (Emphasis supplied). Regulations explain the requi rement that the insured was “contributing to the support of the applicant:” Contributions must be made regularly and must be large enough to meet an important part of [the claimant’s] ordinary living costs. Ordinary living costs are the costs for [the claima nt’s] food, shelter, routine medical care, and similar necessities. If the insured person only provides gifts or donations once in a while fo r special purposes, they will not be considered contributions for [the claimant’s] support. 20 C.F.R. § 404.366(a)(2). “The purpose of the ‘re gular and substantial’ regulation is to prevent the child from reaping a w indfall by virtue of the death of a father whose contribution to the child’s support would not have been as large as that provided by the child’s survivor benefits.” B ennemon ex rel. Williams v. Sullivan , 914 F.2d 987, 990-91 (7th Cir. 1990). Because the insured was not living with the childre n at the time of his death, the claimants were required to show he was c ontributing to their support. Plaintiff stated in her application for benefits th at the insured was not making regular and substantial contributions to the claimants’ support at the time of his death. R. Vol. II at 38. At the initial hearing, plaintiff did not testify or provide-5-

any evidence that the insured had been contributing anything to the children at the time of his death even though she also testified th e insured was employed by Safeway. R. Vol. II at 24. The only evidence plai ntiff presented in support of her assertion that the insured contributed to claimants ’ support was at the second hearing, when she testified that approximately once a month she and her children traveled to where the insured lived for weekend vis its with the insured, as well as her mother and friends. She testified that during these visits the insured would let them stay in his apartment, bought the children foo d and sometimes bought them clothes or gave them $40 or $50. Id . at 96-99. We agree with the magistrate judge that the insured ’s contributions during claimants’ visits “were small, and only occasional, or sporadic [and do] not establish that the claimant children were dependentupon the decedent for their support.” R. Vol. I at 14. These contributions we re in the nature of gifts and were neither regular nor large enough to cover clai mants’ ordinary living expenses. See Robinson ex rel. Virgies v. Shalala , 34 F.3d 665, 668 (8th Cir. 1994)(holding that contributions of $4.00, $50.00, $172, and money to buy shoes and milk insufficient to meet the “regular and subs tantial” test); Jones ex rel.
Carr v. Bowen , 829 F.2d 647, 648 (8th Cir. 1987)(holding that bi monthly gifts of candy during visits was insufficient to meet the “r egular and substantial” test); and Moretti v. Bowen , 806 F.2d 1238, 1240 (5th Cir. 1986)(holding that-6-

contributions of $600 and gift of a stereo, pool cu e and watch worth approximately $300 did not constitute regular and s ubstantial support). We conclude the ALJ’s denial of benefits is supported by substantial evidence. The judgment of the magistrate judge sitting for th e United States District Court for the Northern District of Oklahoma is AFFI RMED.