APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. CIVIL NO. 78-0522)
Before Seitz, Chief Judge, and Adams and Weis, Circuit Judges.
Three years after he began receiving social security disability benefits, Cloyd E. Brehm and his wife adopted Mark as their son. HEW refused to make child insurance payments for Mark because the Social Security Act required that he have lived with and been dependent on Cloyd for a year before his disability began. Mark argues that he has been denied equal protection because under the Act, afterborn natural children, as well as afteradoptees who are stepchildren or natural children of the wage earner, are eligible for benefits. We conclude that Mark's challenge must fail because the classification in the Act is within the competence of Congress and is not unconstitutional.
Wage earner Cloyd E. Brehm began receiving social security disability payments in 1972. Two years later, 16 year old Mark, who was not related to Cloyd or his wife Joan, began living with them. In 1975, after completing the investigation required by state law, the Court of Common Pleas of Cumberland County, Pennsylvania, decreed that Mark was formally adopted as a son by Cloyd and Joan Brehm. In the following month, Mark applied for social security child insurance benefits. A few weeks later Joan filed for the payments due the wife of a disabled wage earner when she is caring for a child entitled to benefits. 42 U.S.C. § 402(b)(1) (1976 & Supp. II 1978). HEW denied both claims on the ground that the Social Security Act required that afteradopted children live with and receive one-half of their support from the wage earner for one year before the onset of the disability. Since these conditions had not been met, neither Mark nor Joan, whose eligibility was derivative through Mark, was entitled to benefits.
The Brehms appealed to the district court, contending that denying benefits to an adopted but not otherwise related child while granting compensation to afterborn natural children and afteradopted stepchildren was unconstitutional. Finding no dispute on the facts, the district court entered summary judgment for the Secretary.
The claimants attack the statute as violating the fifth amendment's guarantee of equal protection and due process. They argue that since natural children born after the onset of the wage earner's disability are entitled to benefits, as are afteradopted stepchildren, 42 U.S.C. § 402(d)(3), (8)(C) (1976), the exclusion of other afteradopted children who in fact become dependent on the disabled parent lacks a rational basis. The Brehms contend that congressional fear of sham adoptions is unfounded since the court decree here, as would be true in other states, was issued only after thorough investigation of the circumstances and consideration of the child's welfare. See, e. g., Pa.Stat.Ann. tit. 1, §§ 331, 335, 501 (Purdon Supp. 1978).
We begin our discussion with a brief review of the statute's history. After enacting the provisions of the Social Security Act establishing retirement and disability payments to eligible participants, Ch. 836, § 103(a), 70 Stat. 815 (1956); Ch. 531, tit. II, 49 Stat. 622 (1935), Congress responded to the need to provide for the wage earner's dependents. It recognized that when a wage earner retires or is physically unable to continue work, his income is reduced and his dependents consequently suffer a diminution in the amount of their support. To satisfy this need, the Act was amended to provide secondary benefits for a spouse and children. With due allowance for the solvency of the program and the need to prevent abuse, various categories of eligibility were defined and modified by amendments over the years.
In some circumstances the standards governing benefits for dependents of a disabled wage earner differed from those applicable to dependents of a retired worker. For example, children adopted after the wage earner's eligibility for disability benefits had accrued were not required to establish their earlier dependence on the wage earner, unlike afteradopted children of retired wage earners. In 1972, Congress eliminated this disparity and created a single standard. The amendment enacted in that year provided that there would be no payments to a child adopted after a wage earner became entitled to benefits for disability or retirement unless the child:
(1) was the natural child or stepchild of the wage earner, or
(2) was adopted by court decree, and
(a) was living with the wage earner for a year before he became entitled to benefits, and
(b) received at least half support from the ...