The Honorable Beverly R. Stites, United States Magistrate

1

Judge for the Western District of Arkansas, to whom the case was

referred for final disposition by consent of the parties pursuant

to 28 U.S.C. § 636(c).

___________

No. 95-3479

___________

Karla Ann Holt, o/b/o Billy D. *

Gipson, *

 * Appeal from the United States

Appellant, * District Court for the

 * Western District of Arkansas.

v. *

 * [UNPUBLISHED]

Shirley S. Chater, Commissioner, *

Social Security Administration, *

 *

Appellee. *

___________

 Submitted: July 25, 1996

 Filed: August 7, 1996

___________

Before BEAM, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________

PER CURIAM.

Karla Ann Holt, on behalf of her minor son, Billy D. Gipson, appeals

the district court's decision affirming the Commissioner's denial of

1

surviving child's benefits under 42 U.S.C. § 402(d). We affirm.

Holt filed an application for surviving child's benefits on behalf

of Billy on the record of the deceased worker, Charles B. Darter, Jr., who

she alleged was Billy's father. Her application was denied initially and

upon reconsideration, on the ground that she had not established that

Darter was Billy's father under either
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Arkansas law or the Social Security Act (the Act). After a hearing, an

administrative law judge (ALJ) concluded that paternity could be

adjudicated before an ALJ, citing Zahradnik v. Sullivan, 966 F.2d 355, 356

(8th Cir. 1992). Based on Holt's testimony and blood test results showing

a 96.32% probability that Darter was Billy's father, the ALJ concluded that

substantial evidence existed that Billy was Darter's son and was entitled

to benefits.

On its own motion, the Appeals Council reviewed the ALJ's decision.

It concluded that Billy was not entitled to benefits because Arkansas had

no law allowing an ALJ to adjudicate paternity in a Social Security

proceeding, and Holt did not meet the Act's alternative requirements for

establishing paternity. Holt subsequently sought judicial review, and the

district court affirmed the Commissioner's decision. 

We review the Commissioner's decision to determine whether it is

supported by substantial evidence on the record as a whole. See 42 U.S.C.

§ 405(g); Robinson v. Shalala, 34 F.3d 665, 668 (8th Cir. 1994); Walker v.

Sullivan, 905 F.2d 1186, 1188 (8th Cir. 1990) (per curiam). 

As relevant to this case, Holt could prove paternity either by

showing that Billy was entitled to take Darter's intestate personal

property under Arkansas law, see 42 U.S.C. § 416(h)(2)(A), or by

demonstrating "by evidence satisfactory to the Commissioner" that Darter

was Billy's father and "was living with or contributing to the support of

the applicant at the time such insured individual died," see 42 U.S.C.

§ 416(h)(3)(C)(ii). See also 20 C.F.R. § 404.355(a) & (d) (1995).

We agree with the Commissioner that the ALJ was not competent to

adjudicate paternity under Arkansas law, because Arkansas does not have a

statute corresponding to the Oregon law which allowed the ALJ to adjudicate

paternity in Zahradnik. The relevant
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Arkansas statute states in part that an illegitimate child may inherit

property from his father provided that "a court of competent jurisdiction

has established the paternity of the child." Ark. Code Ann. § 28-9-

209(d)(1) (Michie 1987). Arkansas Chancery Court was the court of

competent jurisdiction in which Holt should have brought a paternity action

after Darter's death. See In re Estate of F.C., 900 S.W.2d 200, 200-01

(Ark. 1995). Holt has not established paternity in Arkansas court or

otherwise shown that Billy is entitled to inherit Darter's personal

property under Arkansas law.

Substantial evidence supports the Commissioner's decision that Holt

also failed to establish paternity under the Act, because she did not show

that Darter was contributing to Billy's support at the time of Darter's

death. According to the testimony of Holt and her mother, Darter's total

contributions to Billy's support consisted of a remote control car, an

Easter basket, a dollar for a haircut, and--on more than one occasion--$10

for diapers or formula. This level of support does not approach the level

required by the Act. See 20 C.F.R. § 404.366(a) (1995) (insured makes

contributions for support when he gives cash or goods to help meet

important part of ordinary living costs; contributions must be made

regularly, and occasional gifts or donations for special purposes will not

be considered contributions for support); Robinson, 34 F.3d at 668.

Holt argues that Darter's lack of support should be disregarded as

it was due to his drug addiction. This argument is unavailing because,

except for Holt's hearing testimony mentioning Darter's use of drugs, there

is no evidence in the record regarding his alleged addiction. Cf. Steurer,

815 F.2d at 1251 (given lack of competent evidence, ALJ reasonably

concluded that insured was not disabled--and therefore unable to support

child--due to alleged drug addiction).
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Finally, we decline to reach Holt's due process and equal protection

challenge to Ark. Code Ann. § 28-9-209(d), because the issue was not

sufficiently raised below. See Clarke v. Bowen, 843 F.2d 271, 273 (8th

Cir. 1988).

Substantial evidence supports the Commissioner's decision that Holt

has not established Billy's entitlement to surviving child's benefits.

Accordingly, the judgment is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.