### The Honorable Beverly R. Stites, United States Magistrat e 1 

### Judge fo r the Western District of Arkansas, to whom the case wa s 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 v. * * [UNPUBLISHED] Shirley S. Chater, Commissioner, * Social Security Administration, * * Appellee.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 min or son, Billy D. Gipson, appeals th e district court's decision affirming the Commissioner's denial o f 1 surviving child's benefits under 42 U.S.C. § 402(d). We affirm.

Holt filed an application for surviving child's benefits on behal f of Billy on the record of the deceased worker, C harles B. Darter, Jr., who she alleged was Billy 's father. Her application was denied initially and upon re consideration, on the ground that she had not established tha t Darter was Billy's father under either

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Arkansa s law or the Social Security Act (the Act). After a hearing, a n admini strative law judge (ALJ) concluded that paternity could b e adjudicated before an ALJ, citing Zahradnik v. S ullivan , 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 tha t 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 Bil ly was not entitled to benefits because Arkansas had
no law al lowing an ALJ to adjudicate paternity in a Social Securit y proceeding, and Holt did not meet the Act's alternative requirements for establishing paternity. Holt subsequently sough t judicial review, and the district court affirmed the Commissioner's decision.

We review the Commissioner's decision to determine whether it i s 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 rel evant to this case, Holt could prove paternity either by showin g that Billy was entitled to take Darter's intestate persona l pr opertyunder 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 an d "was living with or contributing to the support of the a pplicant 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 agr ee with the Commissioner that the ALJ was not competent t o adjudicate paternity under Arkansas law, because Arkansas does not have a statute corresponding to the Oregon law which allowed the ALJ to adjudicat e paternity in Zahradnik . The relevant

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Arkansas statute states in part that an illegitimate child may inheri t property from his fat her provided that "a court of competent jurisdiction has es tablished the paternity of the child." Ark. Code Ann. § 28-9

- 209(d)(1 ) (Michie 1987). Arkansas Chancery Court was the court o f competent jurisdiction in which Holt should have brought a paternity actio n after D arter's death. See In re Estate of F.C. , 900 S.W.2d 200, 200-0 1 (Ark. 1995 ). Holt has not established paternity in Arkansas court o r otherw ise shown that Billy is entitled to inherit Darter's persona l property under Arkansas law.
Substanti al 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, a n Easter basket, a dollar for a haircut, and--on m ore than one occasion--$10 for diapers or formula. This level of support d oes not approach the level requiredby the Act. See 20 C.F.R. § 404.366(a) (1995) (insured make s con tributions for support when he gives cash or goods to help mee t import ant part of ordinary living costs; contributions must be mad e regularly, and occasional gifts or donations for special purposes will not be considered contributions for support); Robinson , 34 F.3d at 668.

Holt arg ues that Darter's lack of support should be disregarded a s it was du e to his drug addiction. This argument is unavailing because , except for Holt's hearing testimony mentioning Darter's use of drugs, ther e is no evidence in the record regarding his alleged addiction. Cf. Steurer , 815 F.2d at 1251 (given lack of competent evidence, ALJ reasonabl y concludedthat insured was not disabled--and therefore unable to support child--due to alleged drug addiction).

### -4- Finally, we decline to reach Holt's due process and equal protection chal lenge to Ark. Code Ann. § 28-9-209(d), because the issue was no t sufficien tlyraised below. See Clarke v. Bowen , 843 F.2d 271, 273 (8t h Cir. 1988).
Substanti al 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.