SSR 79-29c: SECTION 202(d)(6) (42 U.S.C. 402(d)(6)) CHILD'S INSURANCE BENEFITS -- REENTITLEMENT -- MARRIAGE AS A BAR TO REENTITLEMENT -- CONSTITUTIONALITY

20 CFR 404.320(b)

SSR 79-29c

McMAHON v. CALIFANO, 1A Unempl. Ins. Rep. ¶ 16,012 (2nd Circuit 1979)

TIMBERS, Circuit Judge:

On this appeal from an order entered in the Eastern District of New York,

Jack B. Weinstein, District Judge , on remand from the Supreme Court

for further consideration in light of the decision in Califano v.

Jobst , 434 U.S. 47 (1977), the question presented is whether the

Secretary of HEW has properly construed § 202(d)(6) of the Social Security

Act, 42 U.S.C. § 402(d)(6) (1976) (the Act), so as to bar appellant

permanently from reentitlement to child's disability insurance benefits

simply because her spouse, now deceased, was not entitled to receive

social security benefits, and if so construed, whether the statute is

constitutional. For the reasons set forth below, we hold that the district

court properly adopted the Secretary's construction of the statute, and

that the statute as construed is constitutional. We affirm.

I.

Appellant is a 55 year old woman who has been severely and continuously

disabled since before age 18. [1] In October 1961, after a disability determination by the Secretary of HEW,

she was awarded child's disability insurance

benefits [2] based on the account

of her father who was a fully insured wage earner. The benefits

subsequently were converted to surviving child's insurance benefits upon

the death of her father in 1962.

On May 18, 1962, appellant married Peter McMahon. Although McMahon had

been rated 100% disabled by the Veterans Administration based on injuries

and illnesses incurred during his military service in World War II, he had

been denied social security disability benefits because he never had been

able to accumulate a sufficient number of quarters of work coverage to

meet the special earnings requirements of the Act

nt married Peter McMahon. Although McMahon had

been rated 100% disabled by the Veterans Administration based on injuries

and illnesses incurred during his military service in World War II, he had

been denied social security disability benefits because he never had been

able to accumulate a sufficient number of quarters of work coverage to

meet the special earnings requirements of the Act. As a consequence of her

marriage to an individual not entitled to receive social security

benefits, appellant's child's disability insurance benefits were

terminated by the Secretary pursuant to §§

202(d)(1)(D) [3] and (d)(5) of

the Act. [4] Thus, the only

income received by the McMahons during their marriage consisted of Peter

McMahon's veteran's benefits, supplemented by small amounts occasionally

earned by appellant in a sheltered workshop.

After the death of Peter McMahon in 1969, appellant applied to have her

surviving child's insurance benefits reinstated and to be granted wage

earner's disability benefits based on her own wage earning record. The

application for the benefits based on her account was denied in January

1970 on the ground that she had not worked the requisite number of

quarters. The application to be reinstated to benefits derived from her

father's account also was denied in February 1970 on the ground that her

disability was not severe enough to qualify for surviving child's

insurance benefits.

In December 1971, appellant reapplied for reinstatement to benefits based

on her father's account. This second application was heard by an

administrative law judge who ruled in favor of appellant and awarded her

reinstatement to her father's benefits. This award, however, was reversed

by the Social Security Administration Appeals Council on its own motion,

holding that the language of §

202(d)(6) [5] barred

re-entitlement even in situations where the disqualifying marriage has

been terminated.

pplication was heard by an

administrative law judge who ruled in favor of appellant and awarded her

reinstatement to her father's benefits. This award, however, was reversed

by the Social Security Administration Appeals Council on its own motion,

holding that the language of §

202(d)(6) [5] barred

re-entitlement even in situations where the disqualifying marriage has

been terminated.

On April 5, 1974, appellant commenced the present action in the district

court for judicial review to have §§ 202(d)(1)(D), (d)(5) and (d)(6)

declared unconstitutional and to obtain an award of child's insurance

benefits retroactive to the date of her marriage to Peter McMahon. Relying

on the district court decision in Jobst v. Richardson , 368 F.Supp.

909 (W.D. Mo.), vacated and remanded , 419 U.S. 811 (1974), aff'd

on remand , No. 20495-1 (W.D. Mo., July 27, 1976), rev'd sub nom.

Califano v. Jobst , 434 U.S. 47 (1977), the district court below

awarded appellant the requested relief, but stayed the judgment pending a

direct appeal by the Secretary to the United States Supreme Court pursuant

to 28 U.S.C. §§ 1252 and 2101 (1976). Also included in this oral ruling of

Jan. 18, 1977 was a statement that should the Supreme Court remand for

further consideration in light of Jobst , the district court would

dismiss appellant's complaint.

While the appeal in the present case was pending, the Supreme Court in Califano v. Jobst, supra , reversed the judgment entered on the

district court decision, sustaining the constitutionality of the statutory

provisions in so far as they provide for the termination of benefits upon

marriage to an individual not entitled to receive social security

benefits. 434 U.S. 47 (1977). The Supreme Court subsequently reversed and

remanded the instant action for further consideration in light of its

decision in Califano v. Jobst

district court decision, sustaining the constitutionality of the statutory

provisions in so far as they provide for the termination of benefits upon

marriage to an individual not entitled to receive social security

benefits. 434 U.S. 47 (1977). The Supreme Court subsequently reversed and

remanded the instant action for further consideration in light of its

decision in Califano v. Jobst . On remand to the district court, a

judgment was entered on March 15, 1978 dismissing appellant's complaint in

accordance with the district court's earlier oral statement on the issue

of a remand in light of Jobst . [6] From that

judgment, the instant appeal has been taken.

II

Turning to the legal issues presented in light of these facts, we first

must determine whether the district court properly affirmed the

Secretary's decision construing the statutory language of § 202(d)(6) to

bar appellant from re- entitlement to child's disability insurance

benefits. We hold that the Secretary's construction of § 202(d)(6) was a

reasonable interpretation and that the district court was correct in

affirming the Secretary's determination to deny appellant re-

entitlement.

Under § 202(d)(1)(B), which establishes the general eligibility

requirements for child's insurance benefits, the applicant must be

"unmarried" at "the time such application was filed." 42 U.S.C. §

402(d)(1)(B) (1976). Once a person satisfies this eligibility requirement

and begins to receive benefits, the statute provides for the termination

of these benefits "in the month in which such child dies or marries." 42

U.S.C. § 402(d)(1)(D). [7] Even

though a person's benefits are terminated, however, he may become

"reentitled" to benefits if he satisfied the requirements of § 202(d)(6),

which provides in pertinent part:

tisfies this eligibility requirement

and begins to receive benefits, the statute provides for the termination

of these benefits "in the month in which such child dies or marries." 42

U.S.C. § 402(d)(1)(D). [7] Even

though a person's benefits are terminated, however, he may become

"reentitled" to benefits if he satisfied the requirements of § 202(d)(6),

which provides in pertinent part:

The parenthetical proviso in § 202(d)(6) referring to paragraph (1)(D) is

the nexus of appellant's present challenge on appeal. The two events

specified in paragraph (1)(D) are the death or marriage of the child.

Thus, when § 202(d)(6) is read in conjunction with the termination section

-- paragraph (1)(D) - - the statute clearly provides that a child may

become re- entitled to benefits only if he has not married or

died.

Appellant, however, would have us construe § 202(d)(6) in consonance with

§ 202(d)(1)(D) so as to require only that a person in her situation who

reapplies for benefits after the death of the ineligible spouse be

"unmarried" at the time of reapplication. She suggests that Congress

sought to terminate benefits to a disabled child only while that

child is married to a non-social security beneficiary, thus permitting re-

entitlement once the intervening marriage to the ineligible spouse has

been terminated. She urges this Court to look behind the "plain meaning"

of the statutory language and to construe § 202(d)(6) so that it comports

with the benevolent purpose of the Act as expressed in the legislative

history.

A well settled principle of statutory construction is that courts, in an

appropriate case, should resort to an examination of legislative history

to ascertain legislative purpose when dealing with ambiguous statutory

language or language that seems at odds with the Congressional purpose. See, e.g., Train v. Colorado Public Interest Research Group , 426

U.S. 1, 10 (1976); Cass v. United States , 417 U.S. 72, 78-79

f statutory construction is that courts, in an

appropriate case, should resort to an examination of legislative history

to ascertain legislative purpose when dealing with ambiguous statutory

language or language that seems at odds with the Congressional purpose. See, e.g., Train v. Colorado Public Interest Research Group , 426

U.S. 1, 10 (1976); Cass v. United States , 417 U.S. 72, 78-79

(1974); Perry v. Commerce Loan Co. , 383 U.S. 392, 400 (1966); NLRB v. Fruit & Vegetable Packers Local 760 , 377 U.S. 58, 62

(1964); Cox v. Roth , 348 U.S. 207, 209 (1955); United States v.

Rosenblum Truck Lines, Inc. , 315 U.S. 50, 55 (1942). Here, however,

the statutory language not only is sufficiently clear to determine

congressional intent, but the plain meaning of the statute also comports

with the general purpose of the statute. To interpret § 202(d)(6) in the

manner suggested by appellant would render the parenthetical proviso not

only superfluous but also meaningless in light of the other termination

provision. Unless the proviso is "mere surplusage" in so far as it relates

back to paragraph (1)(D), we see no other reason why Congress would

include this proviso in § 202(d)(6) except that it meant to specify that a

person will not qualify under the re-entitlement section once he has

married or died.

Moreover, there is nothing in the legislative history to suggest that

construing the statute in accordance with the plain meaning of its terms

would be contrary to the Congressional purpose. Our Court of course has

recognized that the "Social Security Act is to be accorded a liberal

application in consonance with its remedial and humanitarian aims." Eisenhauer v. Mathews , 535 F.2d 681, 686 (2 Cir. 1976). Accord,

Rosenberg v. Richardson , 538 F.2d 487, 490 (2 Cir. 1976); Adams v.

Weinberger , 521 F.2d 656, 659 (2 Cir. 1975); Gold v. Secretary of

HEW , 463 F.2d 38, 41 (2 Cir. 1972); Haberman v. Finch , 418 F.2d

664, 667 (2 Cir. 1969)

y Act is to be accorded a liberal

application in consonance with its remedial and humanitarian aims." Eisenhauer v. Mathews , 535 F.2d 681, 686 (2 Cir. 1976). Accord,

Rosenberg v. Richardson , 538 F.2d 487, 490 (2 Cir. 1976); Adams v.

Weinberger , 521 F.2d 656, 659 (2 Cir. 1975); Gold v. Secretary of

HEW , 463 F.2d 38, 41 (2 Cir. 1972); Haberman v. Finch , 418 F.2d

664, 667 (2 Cir. 1969). With respect to the question here involved,

however, there is nothing in the legislative history to indicate that

Congress, contrary to the explicit language of § 202(d)(6), intended to

allow re-entitlement in cases where an intervening marriage has occurred.

Indeed, the only reasonable interpretation of this statute is that any

marriage occurring subsequent to a child's initial entitlement to benefits

terminates these benefits and prevents re-entitlement in the future.

The challenged provision is merely part of a general statutory scheme

designed to provide the wage earner and the dependent members of his

family with protection in the form of benefits financed by taxes levied on

the wage earners who are the primary beneficiaries of the fund. See

Califano v. Jobst, supra , 434 U.S. at 50-52. Although there is no

specific mention of the proviso in the re-entitlement section, Congress

reasonably could have concluded that after marriage a child no longer

would be dependent upon his parents, but instead would turn to his spouse

for support. Should the spouse die, it also is rational to assume that the

surviving spouse would rely on savings or benefits derived from the

deceased spouse and not revert to depending on his parents for support.

Even though this basic assumption may not be valid in all cases, Congress

clearly has the power to legislate on the basis of reasonable

general assumptions. Id . at 53.

ouse

for support. Should the spouse die, it also is rational to assume that the

surviving spouse would rely on savings or benefits derived from the

deceased spouse and not revert to depending on his parents for support.

Even though this basic assumption may not be valid in all cases, Congress

clearly has the power to legislate on the basis of reasonable

general assumptions. Id . at 53.

In accordance with this clear statutory language, the Secretary of HEW

has proposed regulations, implementing § 202(d)(1) and (d)(6), which would

expressly provide that an intervening marriage to a non-eligible spouse

would permanently bar re-entitlement to child's insurance benefits,

e.g.:

It also is a well established principle of statutory construction that

"[t]he interpretation of a statute by an agency charged with its

enforcement is a substantial factor to be considered in construing the

statute." Youakim v. Miller , 425 U.S. 231, 235-36 (1976). Accord, Johnson v. Robison , 415 U.S. 361, 367-68 (1974); Udall

v. Tallman , 380 U.S. 1, 16 (1965); Friedman v. Berger , 547 F.2d

724, 731-32 (2 Cir. 1976), cert. denied , 430 U.S. 984 (1977). As

long as the agency's interpretation is reasonable and there are no

"'"compelling indications that it is wrong,"'" the agency's construction

should be given great deference. Beal v. Doe , 432 U.S. 438, 447

(1977); New York State Department of Social Services v. Dublino ,

413 U.S. 405, 421 (1973); Columbia Broadcasting System, Inc. v.

Democratic National Committee , 412 U.S. 94, 121 (1973); Red Lion

Broadcasting co. v. FCC , 395 U.S. 367, 381 (1969).

We find no compelling reasons to indicate that the Secretary's

construction is contrary to the purpose or the intent of the statute. We

therefore hold that the district court properly affirmed the Secretary's

determination to deny appellant re-entitlement to benefits.

III

Democratic National Committee , 412 U.S. 94, 121 (1973); Red Lion

Broadcasting co. v. FCC , 395 U.S. 367, 381 (1969).

We find no compelling reasons to indicate that the Secretary's

construction is contrary to the purpose or the intent of the statute. We

therefore hold that the district court properly affirmed the Secretary's

determination to deny appellant re-entitlement to benefits.

III

Having determined that the Secretary's construction of the re-entitlement

provision of the statute not only is rational, but also is in accordance

with the Congressional purpose, we now turn to the question whether the

statute, as construed, is constitutional. We hold that it is.

To comport with the due process and equal protection principles of the

Fifth Amendment, the classifying criteria used by the Secretary to

distinguish between those individuals who are eligible for child's

insurance benefits and those who are not must bear some rational

relationship to the Congressional purpose behind the statute. United

States Department of Agriculture v. Moreno , 413 U.S. 528, 533 (1973); Jefferson v. Hackney , 406 U.S. 535, 546 (1972); Dandridge v.

Williams , 397 U.S. 471, 485 (1970). In Mathews v. DeCastro , 429

U.S. 181, 185 (1976), however, the Supreme Court stated:

Under the challenged section, the criterion separating those eligible

individuals from ineligible individuals is marriage. Marriage serves as a

terminating event for secondary beneficiaries throughout the Act. See,

e.g. , 42 U.S.C. § 402(e)(1)(A) (1976) (widow's benefits); 42 U.S.C. §

402(f)(1)(A) (1976) (widower's benefits); 42 U.S.C. § 402(g)(1)(A) (1976)

(mother's benefits); 42 U.S.C. § 402(h)(1)(C) (1976) (parent's benefits);

42 U.S.C. § 402(b)(1)(C) (1976) (divorced wife collecting benefits on her

ex-husband's account). Congress rationally assumed that once an individual

marries, he leaves his original family, starts his own family, and,

consequently, no longer is dependent upon his parents for support

; 42 U.S.C. § 402(g)(1)(A) (1976)

(mother's benefits); 42 U.S.C. § 402(h)(1)(C) (1976) (parent's benefits);

42 U.S.C. § 402(b)(1)(C) (1976) (divorced wife collecting benefits on her

ex-husband's account). Congress rationally assumed that once an individual

marries, he leaves his original family, starts his own family, and,

consequently, no longer is dependent upon his parents for support.

Instead, he looks to his spouse for support; when that spouse dies or when

the marriage is terminated by reason of divorce or separation, the

dependent spouse logically looks for support not to his parents,

but to his former spouse -- by way of inheritance, support decrees or

other financial arrangements. Thus, by having marriage serve as a

terminating point for benefits received through one's parents, Congress

chose a classifying criterion that not only is rational but is based on

common experience.

As appellant points out, there will be situations where this rationale

does not apply. An individualized determination of need perhaps might

better indicate those persons who should be eligible for child's insurance

benefits. [8] Although the

Supreme Court in Califano v. Jobst was not confronted with the

constitutionality of the re-entitlement provision, the reasoning employed

by the Court in upholding the constitutionality of the termination

provision and its exception is applicable here. The Court in Jobst was faced with a claim similar to that raised here -- namely, whether it

was constitutional to deny benefits to two disabled individuals who

married each other simply because one of the individuals was not eligible

for social security benefits

ing employed

by the Court in upholding the constitutionality of the termination

provision and its exception is applicable here. The Court in Jobst was faced with a claim similar to that raised here -- namely, whether it

was constitutional to deny benefits to two disabled individuals who

married each other simply because one of the individuals was not eligible

for social security benefits. The plaintiff in Jobst argued that

the statute discriminated irrationally between two groups who were both

equally in need, basing his claim on the fact that child's insurance

beneficiaries who marry other disabled social security beneficiaries,

under the statute, would continue to receive benefits while he and his

wife would have their benefits terminated simply because she was not

eligible.

In first passing on the constitutionality of the termination provision,

the Court noted that Congress may prescribe general rules based on certain

factual assumptions rather than require a case by case determination of

dependency: "General rules are essential if a fund of this magnitude is to

be administered with a modicum of efficiency, even though such rules

inevitably produce seemingly arbitrary consequences in some individual

cases." Califano v. Jobst, supra , 434 U.S. at 53. Although the

general rule may not refer to irrational criteria such as religion or

race, marriage is not an irrational ground of classification.

In holding that the exception to the general termination provision also

was constitutional, the Court reasoned that the exception to the general

termination rule permitting the continuation of benefits when two social

security beneficiaries marry, like the general termination provision

itself, was easy to apply and provided a generally reliable indicator of

dependency:

f classification.

In holding that the exception to the general termination provision also

was constitutional, the Court reasoned that the exception to the general

termination rule permitting the continuation of benefits when two social

security beneficiaries marry, like the general termination provision

itself, was easy to apply and provided a generally reliable indicator of

dependency:

With respect to the statute involved in the instant case, the ease of

administering a general rule also may well have led to the choice of

marriage as the factor distinguishing between persons eligible for

re-entitlement to benefits and those individuals who would be less likely

to need such benefits. Although some individuals who have married and lost

benefits may be in as great a need after the death of their spouses as

those beneficiaries who never have married, an overwhelming number of the

former group can expect to receive some support from their spouses. In the

absence of a general rule, each applicant for re-entitlement would have to

demonstrate dependency. Although there are some individuals who may reap

the benefits of the different rules applicable to those persons who apply

initially under the entitlement section and those who reapply for benefits

under the re-entitlement section, extending benefits to those individuals

has no adverse impact on

appellant. [9] As the Court

stated in a footnote to Jobst :

This observation applies with equal force to the present case. Were we to

invalidate the re-entitlement provision in order to extend to appellant

those benefits received by children who never have married or who do not

apply initially for benefits until after the death of their spouses, we

would be required to establish judicially some other standard to determine

the dependency of individuals applying for re-entitlement under the

statute. We think that is the responsibility of Congress, not the

courts.

der to extend to appellant

those benefits received by children who never have married or who do not

apply initially for benefits until after the death of their spouses, we

would be required to establish judicially some other standard to determine

the dependency of individuals applying for re-entitlement under the

statute. We think that is the responsibility of Congress, not the

courts.

Mindful of the impact of a remand from the Supreme Court in light of an

intervening decision of that Court, see, e.g., Board of Trustees of

Keene State College v. Sweeney , 47 U.S.L.W. 3330, 3331 (U.S. November

13, 1978) (Stevens, J., dissenting), we hold that the criterion in this

case -- marriage -- is neither irrational nor contrary to the purpose of

the Act. Although some inequities may occur, such individual cases surely

do not require that the entire statutory provision be declared

unconstitutional.

Affirmed.

[1] Plaintiff suffers from

severe and permanent disabilities arising from serious birth defects. Her

disabilities include a congenital cleft palate, a severe speech defect,

congenital cataracts and glaucoma that have left her partially blind, a

Laurence-Moon-Biedl syndrome marked by obesity and mental retardation, and

a subnormal I.Q.

[2] 42 U.S.C. § 402(d)(1) (1976)

defines the eligibility requirements for child's insurance benefits as

follows:

"(d) (1) Every child (as defined in section 416(e) of this title) of an

individual entitled to old age or disability insurance benefits or of an

individual who dies a fully or currently insured individual, if such child

--

shall be entitled to a child's insurance benefit for each month,

beginning with the first month after August 1950 in which such child

becomes so entitled to such insurance benefits and ending with the month

preceding whichever of the following first occurs --

[3] Id .

[4] 42 U.S.C. § 402(d)(5) (1976)

provides:

"(5) In the case of a child who has attained the age of eighteen and who

marries --

entitled to a child's insurance benefit for each month,

beginning with the first month after August 1950 in which such child

becomes so entitled to such insurance benefits and ending with the month

preceding whichever of the following first occurs --

[3] Id .

[4] 42 U.S.C. § 402(d)(5) (1976)

provides:

"(5) In the case of a child who has attained the age of eighteen and who

marries --

such child's entitlement to benefits under this subsection shall,

notwithstanding the provisions of paragraph (1) of this subsection but

subject to subsection (s) of this section, not be terminated by reason of

such marriage; except that, in the case of such marriage to a male

individual entitled to benefits under section 423(a) of this title or

subsection, the preceding provisions of this paragraph shall not apply

with respect to benefits for months after the last month for which such

individual is entitled to such benefits under section 423(a) of this title

or this subsection unless (i) he ceases to be so entitled by reason of his

death, or (ii) in the case of an individual who was entitled to benefits

under section 423(a) of this title, he is entitled, for the month

following such last month, to benefits under subsection (a) of this

section."

[5] See text at page _____, infra .

[6] In her original action in

the district court, appellant in the instant action raised claims similar

to those raised in Jobst -- namely, that she was entitled to

benefits extending to the date of her marriage, since her benefits should

not have been terminated at all. When the Supreme Court's decision in Jobst , however, foreclosed any possibility of succeeding on this

claim, see note 7 infra , appellant, on remand to the district

court, abandoned her request for benefits retroactive to her marriage in

1962; instead, she moved for summary judgment declaring that she was

entitled to reinstatement of benefits commencing on the death of her

husband -- a claim not raised in Jobst

ecision in Jobst , however, foreclosed any possibility of succeeding on this

claim, see note 7 infra , appellant, on remand to the district

court, abandoned her request for benefits retroactive to her marriage in

1962; instead, she moved for summary judgment declaring that she was

entitled to reinstatement of benefits commencing on the death of her

husband -- a claim not raised in Jobst . The district court, in its

original oral ruling on January 18, 1977, stated that, if the Supreme

Court subsequently remanded the case for further consideration in light of

its decision in Jobst , the district court would dismiss appellant's

complaint since it saw no substantial difference between appellant's case

and the Jobst case. Thus, despite the fact that appellant abandoned

those claims specifically ruled on by the Supreme Court in Jobst ,

the district court dismissed her complaint in its entirety.

[7] An exception to this rule of

termination was added by the 1958 amendment to the Act, 42 U.S.C. §

402(d)(5), which provides that benefits are not terminated by the

beneficiary's marriage to an individual who himself is entitled to social

security benefits. See note 4, supra . The constitutionality of

these provisions was upheld in Califano v. Jobst, supra .

[8] Appellant points to three

categories of individuals who are similarly situated, but who are treated

differently depending upon whether they are applying for initial

entitlement or for re- entitlement. First, those individuals who marry

non-social security beneficiaries and who later apply for the first time

for child's insurance benefits after the death of their spouses, unlike

appellant, are qualified to receive benefits under § 202(d)(1)(B). Second,

if an individual who has been receiving benefits based on the account of

one parent has those benefits terminated because of marriage, he may

apply, after the death of the spouse, under § 202(d)(1)(B) for benefits

based on the account of the other parent

insurance benefits after the death of their spouses, unlike

appellant, are qualified to receive benefits under § 202(d)(1)(B). Second,

if an individual who has been receiving benefits based on the account of

one parent has those benefits terminated because of marriage, he may

apply, after the death of the spouse, under § 202(d)(1)(B) for benefits

based on the account of the other parent. Third, individuals whose

benefits were terminated because of their marriage to a non-eligible

spouse may become reinstated to those benefits if their marriage is

terminated by reason of the voiding or annulment of the marriage when no

grant of permanent alimony is made and the annulling court does not retain

jurisdiction.

At first blush these categories may appear indistinguishable for purposes

of determining need. Closer examination, however, of the factors

distinguishing the categories indicates a rational basis for awarding

benefits to these groups and not to appellant. When a marriage has been

terminated by voiding or annulment without an award of support, it is

rational to assume that the former beneficiary will turn to his parents

for support. On the other hand, when the spouse dies or support is awarded

during a divorce, the dependent spouse generally will look to any

inheritance or support awards rather than to his parents.

In distinguishing between those individuals who apply initially for

benefits under § 202(d)(1)(B) and those who apply for reinstatement for

benefits under the re-entitlement provision, § 202(d)(6), the timing of

the marriage and the application is the distinguishing factor. The timing

of the marriage is not an irrational criterion for distinguishing between

groups and provides an easy standard for distinguishing between persons

most likely to be in need of benefits. Most children who apply initially

for benefits will be in need of support if they are not married

ision, § 202(d)(6), the timing of

the marriage and the application is the distinguishing factor. The timing

of the marriage is not an irrational criterion for distinguishing between

groups and provides an easy standard for distinguishing between persons

most likely to be in need of benefits. Most children who apply initially

for benefits will be in need of support if they are not married. Requiring

that they be "unmarried", therefore, at the time of the initial

application is a reasonable requirement in light of this assumption. If a

child who has once received benefits marries, however, Congress rationally

assumed that they no longer would require parental support. Thus, marriage

serves as a bar to re-entitlement. The Group that benefits from this

assumption are those individuals who have two wage-earning parents and can

apply initially after their marriage even though they once received

benefits based on the other parent's record. This alone does not render

the statute unconstitutional. Califano v. Jobst, supra , 434 U.S. at

57-58.

[9] See note 8, supra .