Appeal from an order, on remand from the Supreme Court for further consideration in light of the Court's decision in Califano v. Jobst, 434 U.S. 47, 54 L. Ed. 2d 228, 98 S. Ct. 95 (1977), entered in the Eastern District of New York, Jack B. Weinstein, District Judge, holding that § 202(d)(6) of the Social Security Act, 42 U.S.C. § 402(d)(6) (1976), is constitutional; that the Secretary of HEW properly denied plaintiff's application for re-entitlement to child's insurance benefits; and accordingly dismissing the complaint. Affirmed.
Before Moore, Timbers and Van Graafeiland, Circuit Judges.
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 its decision in Califano v. Jobst, 434 U.S. 47, 54 L. Ed. 2d 228, 98 S. Ct. 95 (1977), the question presented is whether the Secretary of HEW has construed properly § 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 re-entitlement 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.
Appellant is a 55 year old woman who has been severely and continuously disabled since before age 18.*fn1 In October 1961, after a disability determination by the Secretary of HEW, she was awarded child's disability insurance benefits*fn2 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. 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)*fn3 and (d)(5) of the Act.*fn4 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 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)*fn5 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, 54 L. Ed. 2d 228, 98 S. Ct. 95 (1977), the district court below on January 18, 1977 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 the district court's ruling 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 instant case was pending, the Supreme Court in Califano v. Jobst, supra, reversed the judgment entered on the district court decision and sustained 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, 98 S/ Ct. 95, 54 L. Ed. 2d 288 (1977). The Supreme Court subsequently reversed and remanded the instant case for further consideration in light of Califano v. Jobst. On remand, the district court entered a judgment on March 15, 1978 dismissing appellant's complaint in accordance with the district court's earlier statement anticipating a remand in light of Jobst.*fn6 From that judgment, the instant appeal has been taken.
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).*fn7 Even though a person's benefits are terminated, however, he may become re-entitled to benefits if he satisfies the requirements of § 202(d)(6), 42 U.S.C. § 402(d) (6) (1976), which provides in pertinent part:
"(6) A child whose entitlement to child's insurance benefits on the basis of the wages and self-employment income of an insured individual terminated with the month preceding the month in which such child attained the age of 18, or with a subsequent month, may again become entitled to such benefits ( Provided ...