Vernoff

I. Background

Vernoff and the insured, Bruce Vernoff, were married for five years when Bruce died of accidental causes in July 1995. Shortly after his death, Vernoff directed a physician to extract five vials of Bruce’s semen. The couple had no children, and there is no evidence to suggest that Bruce consented to the procedure or had ever contemplated having a child postmor- tem. In June 1998, Vernoff underwent in vitro fertilization using Bruce’s sperm and Brandalynn was born March 17, 1999.

In October 1999, Vernoff filed her initial claim for child survivor benefits with the Social Security Administration, on behalf of both Brandalynn and herself, as the mother of a sur- viving child. Her claim was denied both by the SSA and on appeal before an Administrative Law Judge (“ALJ”) before she appealed to the district court. While her appeal was pend- ing, this court decided Gillett-Netting v. Barnhart, 371 F.3d 593 (9th Cir. 2004), and the SSA subsequently issued an Acquiescence Ruling to the decision on September 22, 2005. See Social Security Acquiescence Ruling 05-1(9) (“SSAR”), 70 Fed. Reg. 55,656 (Sept. 22, 2005). The district court remanded the case to the SSA for further…