Plaintiff-Appellant Nannie Lou Boyland, et al., appeals from a summary judgment of the United States District Court for the Middle District of Tennessee, affirming the final decision of the Secretary of Health, Education and Welfare that Ms. Boyland's minor claimants, Marilynn and Lorenzo Knight, are not entitled to surviving child's benefits under the Social Security Act §§ 1 et seq., 42 U.S.C. §§ 301 et seq. We reverse and remand for payments of benefits.

On December 15, 1975, plaintiff filed an application for surviving child's insurance benefits on behalf of Marilynn Lou and Lorenzo Knight1 based on the Social Security earnings record of James Henry Hamilton, who died February 26, 1975. The plaintiff claimed that Mr. Hamilton was the father of the two children.2 The Social Security Administration determined that the two children failed to satisfy the requirements for entitlement as the children of Mr. Hamilton.3

After Appellant's request for a hearing, an Administrative Law Judge (ALJ) considered the case de novo and on October 29, 1976, rendered a decision denying the surviving child's insurance benefits. In the view of the ALJ, the evidence failed to establish that either of the children was the "child" of the deceased wage earner within the meaning of the Act.4 The Appeals Council adopted the judgment of the ALJ which became the final decision of the Secretary of Health, Education and Welfare on February 9, 1977.

Appellant then filed suit in the district court to obtain judicial review of the Secretary's final decision. Although the District Court held that the Secretary's finding that the deceased wage earner was not the father of the two children was unsupported by substantial evidence in the record, the Court granted summary judgment for the Secretary. The District Court's ruling that the deceased Hamilton was the father of the two children would entitle the claimants to the benefits in question providing the wage earner was also found to be living with or contributing to the support of the children at the time of his death. 42 U.S.C. § 416(h)(3)(C)(ii). By granting summary judgment for the Secretary, the district court found substantial evidence that the deceased was not contributing to the support of the children at the time of his death.5

At oral argument before this court, Appellant Boyland raised a separate issue for the first time: is the proper time for making the determination of when the wage earner was contributing to the support of the children the time of the wage earner's death, as has been assumed throughout the litigation, or at the time the wage earner himself became entitled to Social Security benefits?6 Because we viewed this question as one of first impression, both parties received additional time to brief the issue.

Appellant urges this court to adopt the vesting theory of entitlement. This theory asserts that the proper moment to determine whether the father of a child born out of wedlock contributed to the support of the child(ren) is when the wage earner himself became entitled to the Social Security benefits.7 This early "vesting" would eliminate any examination into the nature of the wage earners' contributions to his children's support just before his death except when the wage earner dies before he becomes entitled to benefits. Such would be the case, argues the appellant, even though the child did not apply for benefits until after the wage earner died.

The government argues that contribution should be determined at the time of the wage earner's death because to do otherwise conflicts with the plain meaning of the applicable statute.8 While it is true that the heading of the allegedly applicable statute, 42 U.S.C. § 416(h)(3)(C)(ii), states "In the case of a deceased individual", the question remains whether Congress intended an earlier moment of vesting based upon the eligibility date of the wage earner where the wage earner has died prior to a determination of eligibility.

We are of the opinion that the application by the claimant determines whether 42 U.S.C. § 416(h)(3)(C)(ii) or 42 U.S.C. § 416(h)(3)(A)(ii) controls. In other words, any vesting occurs by the filing of the application.9 Other provisions of the Act support this conclusion. For example 42 U.S.C. § 402(d) (1)(A) requires a child to file an application before entitlement to child's insurance benefits "vests." We think that Congress intended to create an alternative time to determine whether a deceased wage earner "contributed" to the support of the claimant while the wage-earner was alive. Had the plaintiff filed an application for benefits prior to Mr. Hamilton's death, the controlling statutory provisions indicate that "contribution to the support of the children" may be shown at the time of the eligibility of the wage earner. However we decline to interpret the introductory phrase of § 416(h)(3)(C)(i) "in the case of a deceased individual" as applying only where the insured died prior to age 65 and prior to eligibility for benefits.10 There are no such qualifying words in the statute excluding those deceased individuals who were eligible for benefits before they died.11 Consequently we conclude, from the wording of the statute, that Congress provided a "child" two opportunities for applying for benefits: One, when the wage earner, himself, becomes eligible for benefits and the other, when the wage earner dies. Unless an application has been filed by the child or on its behalf, whatever rights may exist, remain inchoate. We conclude that the government is correct on this issue and we must make an overall examination of the wage earner's contributions to his children before he died.

There is no universally accepted test for determining what constitutes "contributing to the support of the applicant," under § 416(h)(3)(C)(ii) of the Act. A majority of courts apply either a regular and substantial "support test" or a "regular and continuous support test."12 Both approaches stress that "sporadic" contributions are insignificant for analytical purposes vis-Ea-vis the Act, presumably because the physical well being of the child is not enhanced by sporadic contributions. This is precisely the Secretary's position. In its argument, the Secretary concedes that the wage earner made some contributions, "(t)hey were .... not continuous and probably had stopped altogether sometime before Hamilton's death. Hamilton's contributions, therefore, cannot qualify as sufficient under either test."13 Assuming, as the Secretary maintains, that Mr. Hamilton's contributions are inadequate under "either test," we find the tests inappropriate under these circumstances.

Obviously, continuously regular and substantial contributions is a just standard when the wage earner's income is regular and substantial. But where the income of a wage earner lacks continuity and substantiality and contributions are nevertheless given, a different criterion should be applied. Where a wage earner is poor and earns an irregular income, it is ludicrous to require regular and substantial payments to his children born out of wedlock or not. The wage-earner is barely supporting himself. Instead, attention should be focused on whether the contributions that were made to the support of his children were important to them given their needs and the wage earner's economic circumstances and ability to support.14 Certain facts place this case within the above category.

At the time of his death Mr. James Henry Hamilton was a retired stone mason with a minimum income. Two of his children lived with him. Two others lived with Mrs. Nannie Lou Boyland, their mother, who alternatively worked or relied on public assistance for additional support. Despite his poverty, Mr. Hamilton on numerous occasions gave $5.00-$10.00 to his children (living with their mother) or to others for them, bought them clothing and presents, gave them lunch money and allowed them to stay in his home for weeks at a time. We cannot ignore the obvious importance of these contributions to Marilyn Lou and Lorenzo Knight.15

The lack of economic well-being or regular income does not eliminate the statutory requirement of "contribution." However, where the resources of the wage earner are scarce and the contributions to his children important to them, the statutory requirements can be satisfied. We emphasize that the periodic contributions were made to the wage earner's own children albeit born out of wedlock. The children should not be denied benefits because the wage earner could only afford small irregular payments.

Accordingly, we find that the decision of the Secretary that James Henry Hamilton was not contributing to the support of his two children, Mary Lou and Lorenzo Knight, is unsupported by substantial evidence. This case is reversed and remanded for an award of benefits.

ENGEL, Circuit Judge, concurring in part and dissenting in part.

I agree with the majority that the time for determining whether the decedent contributed to the support of Marilynn and Lorenzo Knight was at the time of his death. I would affirm the denial of benefits, however, because I agree with United States District Judge Morton's conclusion, which he reached with admitted personal regret, that substantial evidence supported the findings of the Secretary. In my opinion it is not the role of our court to substitute its judgment for that of the Secretary. Simply put, that is what the majority has done here.