Unpublished Disposition, 930 F.2d 28 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 930 F.2d 28 (9th Cir. 1989)

No. 90-55190.

United States Court of Appeals, Ninth Circuit.

Before KOZINSKI and O'SCANNLAIN, Circuit Judges, and McNAMEE,**  District Judge.

MEMORANDUM*** 

We must decide whether substantial evidence supported the Secretary's decision that George L. Diaz, Jr., was not the "child" of the deceased wage earner under 42 U.S.C. § 402.

* When George Diaz died in an automobile accident on November 10, 1979, he left behind a pregnant widow, who posthumously bore him a daughter. Diaz was also survived by Cynthia Lopez, with whom he enjoyed intimate relations. Unbeknownst to either, Lopez too was pregnant. She gave birth to George L. Diaz, Jr., on July 11, 1980.

Lopez originally filed an application with the Department of Health and Human Services for social security child's insurance benefits in July 1980. She alleged that her son was the child of deceased wage earner George Diaz. The application was denied initially and on reconsideration. In August 1987, following our decision in Smith v. Heckler, 820 F.2d 1093 (9th Cir. 1987), Lopez filed a second application on behalf of her son. This application was rejected initially and on reconsideration by the Social Security Administration, then by an administrative law judge after a hearing, and again by the Appeals Council.

Lopez and George, Jr. then brought this action in the federal district court pursuant to 42 U.S.C. § 405(g). On December 15, 1989, the district court granted summary judgment to the Secretary, holding that substantial evidence supported the denial of benefits.1  This appeal followed.

We review the grant of summary judgment de novo. Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). As did the district court, we search for substantial evidence supporting the Secretary's decision. Id. at 847-48.

II

Under the Social Security Act, an illegitimate child may be deemed legitimate and thus entitled to social security child's insurance benefits if the "insured individual is shown by evidence satisfactory to the Secretary to have been the ... father of the applicant, and such insured individual 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); see also id. Sec. 402(d) (3) (defining eligible children by reference to section 416(h) (3)). Lopez contends that decedent Diaz was contributing to her support, and by extension to their unborn child's support, at the time of his death.2 

Lopez testified before the administrative law judge that Diaz had contributed to her support in the months before his demise. At that time, Lopez lived with her parents. She was earning $1,000 per month at her job, and her expenses were $800 per month. She indicated that Diaz provided her with about thirty dollars per week, which she spent on lunches, in addition to paying for meals they ate together, covering the cost of motel rooms on their occasional weekends together, reimbursing Lopez's parents for the cost of his meals taken there, once saving her money by driving her to work, and twice buying her groceries.

While some of these payments could not be considered support, the purchase of groceries and weekly meal-money might so qualify, if established. See Smith, 820 F.2d at 1094 (describing level of support); Doran, 681 F.2d at 606 (same).3  The Appeals Council held that they had not been established. [CAR 10] We agree. Lopez offered no documentation or testimony verifying the payments, other than her own word. Significantly, Lopez did not mention any such payments in her earlier application for benefits, and only thought to offer such testimony some eight years after Diaz's death (but only weeks after publication of our Smith decision, of which she was aware). Lopez also did not explain why such payments would have been made, since her needs were provided for at home, she made more money than she spent, and Diaz did not know that she was pregnant.

It is apparent that neither the administrative law judge, nor the Appeals Council, believed Lopez's assertions regarding the payments, at least in the absence of documentary evidence. Questions of witness credibility are resolved by the Secretary. See Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989); Hudson v. Bowen, 849 F.2d 433, 434-35 (9th Cir. 1988). The Secretary gave sound reasons for his interpretation of the evidence. We cannot say that the denial of the application was not grounded in substantial evidence.

III

We conclude that the district court was correct in holding that substantial evidence supported the Secretary's decision . Therefore, Lopez's request for an award of attorney fees under 28 U.S.C. § 2412(d) (3) must be denied.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit R. 34-4

 **

The Honorable Stephen M. McNamee, United States District Judge for the District of Arizona, sitting by designation

 ***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit R. 36-3

 1

The parties agreed to proceed before a magistrate. United States Magistrate Joseph Reichmann wrote an opinion and entered judgment for the Secretary

 2

The applicable test is "whether the father's support 'was commensurate with the needs of the unborn child at the time of the father's death.' " Doran v. Schweiker, 681 F.2d 605, 608 (9th Cir. 1982) (quoting Adams v. Weinberger, 521 F.2d 656, 660 (2d Cir. 1975)). Particularly in the early stages of the mother's pregnancy, a focus on the father's support of the mother (rather than on the father's intent to support the child) is appropriate. See Smith, 820 F.2d at 1095-96

 3

Reimbursement of expenses incurred by Lopez or her family in order to feed or entertain Diaz could not be considered payments for Lopez's support. The motel room expenses were not incurred for Lopez's support, but in order to obtain some privacy