679 F.

2d 328

NUNEMAKER, Isabelle, Appellee,

v.
SEC. HEW USA, Patricia Roberts Harris, Secretary of Health,
Education and Welfare, and her successor or
successors in office, Appellant.
No. 81-1282.

United States Court of Appeals,

Third Circuit.
Argued Jan. 13, 1982.
Decided June 3, 1982.

Thomas S. Martin, Acting Asst. Atty. Gen., Washington, D. C., Joseph F.

Cimini, Sp. Asst. to U. S. Atty., Scranton, Pa., Carlene V. McIntyre
(argued), Anthony J. Steinmeyer, Washington, D. C., for appellant.
Jonathan Butterfield (argued), Williamsport, Pa., Peter Brooks Macky,
Sunbury, Pa., for appellee.
Before HUNTER and HIGGINBOTHAM, Circuit Judges, and WEINER,*
District Judge.
OPINION OF THE COURT
JAMES HUNTER, III, Circuit Judge:

INTRODUCTION
1

This appeal is from a judgment of the United States District Court for the
Middle District of Pennsylvania vacating a decision of the Secretary of Health
and Human Services which reduced plaintiff's benefits under the Supplemental
Security Income ("SSI") program of Title XVI of the Social Security Act, 42
U.S.C. 1381-1383c (1976) (the "statute"). The district court held that 20
C.F.R. 416.1125(d) (1980), 1 which includes, as countable unearned income
for purposes of the SSI program, support and maintenance received for less

than fair market value, is inconsistent with the Social Security Act and
unconstitutional as applied to plaintiff. We will reverse.
FACTS
2

In June of 1978, plaintiff Isabelle Nunemaker, a recipient of SSI benefits,

received notice from the Secretary of Health and Human Services ("Secretary")
that her benefits would be reduced by $83.13 per month because she was
receiving unearned, in-kind income in the form of a private rental subsidy.
Nunemaker was living in a mobile home owned by her daughter and son-in-law
for which she paid $50.00 per month rent; the Secretary determined that the
current rental value of the mobile home was $150.00 per month.2 Pursuant to
section 416.1125(d) and other relevant regulations, which count shelter
provided for less than current market value as income to the SSI claimant, the
Secretary determined that Nunemaker received a rental subsidy of $100.00 per
month (i.e., the difference between the current market value and the rent
actually paid for the mobile home). The Secretary did not, however, reduce
Nunemaker's monthly benefits by the amount of $100.00. Rather, because
section 416.1125(d) provides that the value of in-kind support and maintenance
"is presumed to be one-third of the (monthly) payment standard," Nunemaker's
benefits were reduced by $83.13.3

Plaintiff claims that section 416.1125(d) is not a valid implementation of the

Social Security Act for two reasons: a) because it deprives her of the benefit of
a bargain struck for the provision of shelter, and b) because the benefit she
received through her reduced rental is not "actually available" to her. Plaintiff
further argues that the regulation is unconstitutional as applied to her, since by
failing to take account of her actual contribution to rent, it treats her identically
with a claimant in the same position who makes no such contribution,4 and it
arbitrarily and irrationally treats her differently from similarly situated
claimants who, because they live in federally subsidized housing, are exempt
from its operation.

The district court did not discuss plaintiff's first two arguments. With respect to
the third argument, the court did not decide whether the failure to take account
of plaintiff's contribution to her rent was in itself improper. Rather, the court
ruled that the regulation improperly discriminated between plaintiff and other
claimants who contributed nothing to their rent:

5
Based
upon Defendant's determination that the current market value of the premises
rented by Plaintiff was $150.00, (and plaintiff's $50.00 contribution to her rent,)
income of $100.00 was imputed to her. Yet, since the regulations provide that

benefits not be reduced by greater than 331/3%, and $100.00 is greater than 331/3%
of Plaintiff's benefits, Plaintiff is treated in precisely the same manner as would be
an S.S.I. recipient living in similar circumstances who made absolutely no
contribution to her own domicile maintenance. This Court is unable to reconcile this
disparity in the treatment of S.S.I. recipients to whom the unearned income
provisions apply with the purposes of the Act, and therefore concludes that
Defendant's application of 462.1125(d) (sic) in this manner is both invidiously
discriminatory and patently arbitrary.
6

Appendix at 55. Regarding plaintiff's fourth argument, the district court agreed
that there was no rational basis for distinguishing between claimants in
plaintiff's position and those living in federally subsidized housing, whose
rental subsidies are exempt from the operation of the benefit-reducing
regulation. This, the court held, rendered application of the regulation to
plaintiff unconstitutional. Appendix at 54.

We cannot accept plaintiff's arguments concerning the applicability of the

Secretary's regulations to her situation. We also cannot agree with the district
court's conclusion that the regulation is unconstitutional. We believe that the
Secretary's regulations validly implement the statute, that the statute and
regulations were properly applied to plaintiff, and that the regulations are
rationally related to a legitimate governmental objective. Therefore, the
judgment of the district court will be reversed.

BACKGROUND
8

The SSI program5 guarantees a minimum, subsistence level income to the aged,
blind and disabled. See S.Rep.No.92-1230, 92d Cong., 2d Sess. 383 (1972);
H.R.Rep.No.92-231, 92d Cong., 1st Sess. 4, reprinted in 1972 U.S.Code Cong.
& Ad.News 4989, 4992. In order to be eligible for payments, a claimant's
income or resources6 may not exceed statutorily prescribed limits. 42 U.S.C.
1382(a). The basic entitlement, a flat rate governed by a statutory formula, is
paid to every eligible claimant, but is reduced by the amount of "countable"
income that the individual receives from other sources. 42 U.S.C. 1381a,
1382a(b). In defining countable income, the statute includes earned and
unearned income, in cash or in kind, although certain narrow categories of
income are excluded. 42 U.S.C. 1382a(a)-(b).

In order to implement the statutory mandate to reduce benefits by the amount of

unearned income in kind received by the claimant, the Secretary has
promulgated regulations which further define income as "the receipt by an
individual of any property or service which he can apply, either directly or by

sale or conversion, to meeting his basic needs for food, clothing, and shelter."
20 C.F.R. 416.1102(a) (1980). Section 416.1120 further provides that in
determining the amount of unearned income, "the amount actually available to
the individual is considered. The gross amount is reduced by any ordinary and
necessary expenses incurred in getting or receiving the unearned income."
(Emphasis added.) Several regulatory provisions govern the calculation of
unearned income received in the form of housing. Section 416.1125(a)
provides:
10
General.
Unearned income includes support and maintenance furnished in cash or in
kind .... Support and maintenance in kind encompasses food, clothing, and shelter or
any portion of any or all of such items. Unless otherwise specified herein, the value
of in-kind support and maintenance refers to its current market value.
11

20 C.F.R. 416.1125(a) (1980). The regulations define precisely how food or

shelter received "in kind" is to be valued in a variety of situations, including the
case of a claimant who lives in his own household or the household of another.
20 C.F.R. 416.1125(d)(1)-(2) (1980). Most importantly, the regulations
provide for the situation reflected in the instant case-the payment by an SSI
claimant of rent in an amount less than fair market value:

12

When an eligible individual ... lives in his own household, including a

commercial establishment, and receives support and maintenance in kind ... the
maximum value of such support and maintenance is presumed to be ... one-third
of the payment standard (i.e., of the monthly benefit payment) .... This
presumption will be applied in determining the benefits payable unless it is
rebutted by the individual's establishing that the current market value of such
support and maintenance, less any payment he makes therefor, is lower than the
presumed value.

13

20 C.F.R. 416.1125(d), (d)(2) (1980). Finally, Congress has exempted from

the operation of section 416.1125(d) unearned income received by SSI
claimants in the form of federally subsidized housing. Housing Authorization
Act of 1976, Pub.L.No.94-375, 2(h), 90 Stat. 1067, 1068 (1976).

DISCUSSION
14

Three federal courts of appeals have considered the question whether 20 C.F.R.
416.1125(d) (1980) is a valid implementation of the Social Security Act, or, if
so, whether its application is unconstitutional. In each case, the regulation was
upheld. Usher v. Schweiker, 666 F.2d 652 (1st Cir. 1981); Kimmes v. Harris,
647 F.2d 1028 (10th Cir.), cert. denied, --- U.S. ----, 102 S.Ct. 400, 70 L.Ed.2d

214 (1981); Antonioli v. Harris, 624 F.2d 78 (9th Cir.1980).7

15

We will focus our discussion on an analysis of the Usher decision, which fully
treats the issues involved here.

Statutory Analysis
16

We turn first to the question whether the regulations validly implement the
statute. The Supreme Court has enunciated the standard by which implementing
regulations must be measured:

17

The question before us is whether this interpretative regulation constitutes a

permissible gloss on the (enabling legislation) by the Secretary, in light of the
(enabling legislation's) language, structure, and legislative history. Our inquiry
is informed by an awareness that the regulation is entitled to deference unless it
can be said not to be a reasoned and supportable interpretation of the (enabling
legislation).

18

Whirlpool Corp. v. Marshall, 445 U.S. 1, 11, 100 S.Ct. 883, 890, 63 L.Ed.2d
154 (1980).

19

In Usher v. Schweiker, 666 F.2d 652 (1st Cir. 1981), the First Circuit upheld
the application of the statute and regulations in what it termed the "reducedrental" situation. 666 F.2d at 654. As in Kimmes, Antonioli, and the instant
case, each of the five claimants in Usher lived in a dwelling, owned by his or
her relative, for which he or she paid less than the fair market rental value. The
Secretary charged each with the receipt of unearned income in kind, and
benefits were reduced in accordance with 20 C.F.R. 416.1125(d).

20

Considering cross-motions for summary judgment, the district court in Usher

ruled 1) that the regulation at issue is authorized by statute, but 2) that it
unconstitutionally discriminated between those in the plaintiffs' circumstances
and others who either have formal leases8 or who live in federally subsidized
housing. The court of appeals agreed with the lower court's first conclusion and
disagreed with the second; it therefore reversed the decision and upheld the
Secretary's actions.

21

Before section 416.1125(d) was promulgated, a House conference report

evidenced Congress's understanding of the reduced-rental practice:

Under the SSI program for the aged, blind and disabled, all forms of income22

including room and board furnished for less than cost-are used to reduce the amount
of benefits payable.
23

H.R.Conf.Rep.No.93-1407, 93d Cong., 2d Sess. 3, reprinted in 1974 U.S.Code

Cong. & Ad.News 5992, 5995, 5996 (emphasis added). After the regulation
was promulgated, a House report again recognized the Secretary's practice
without criticism. H.R.Rep.No.94-1091, 94th Cong., 2d Sess. 21 (1976). Most
significantly, Congress created a specific exemption from the operation of the
regulation for rental subsidies received through federal housing assistance
programs. Housing Authorization Act of 1976, Pub.L.No.94-375, 2(h), 90
Stat. 1067, 1068 (1976). 9 In the same year, the implementing statute, 42 U.S.C.
1382a(a)(2)(A), was twice amended, and the Secretary's interpretation of
countable income was left undisturbed. Act of June 30, 1976, Pub.L.No.94-331,
4(a), 90 Stat. 781, 782 (1976); Act of October 4, 1976, Pub.L.No.94-455,
2125, 90 Stat. 1920 (1976); Usher, 666 F.2d at 658. Finally, the Secretary's
counting as unearned income the receipt of shelter for less than market value
was mentioned without criticism in a 1977 Senate report. Staff of Senate
Comm. on Finance, 95th Cong., 1st Sess., Staff Report on the Supplemental
Security Income Program 72-75 (Comm.Print.1977). The Usher court
concluded:Even if the statute were less clear, the fact that this consistent
administrative interpretation has been specifically and repeatedly recognized
without criticism by Congresses that have amended and revised the Act in other
ways provides evidence that the Secretary's interpretation is correct. NLRB v.
Bell Aerospace Co., 416 U.S. 267, 274-75 (94 S.Ct. 1757, 1761-62, 40 L.Ed.2d
134) (1974). Thus, we join the other courts which have considered this issue
and hold that the regulation is authorized by statute.
666 F.2d at 658. 10

24

Discussing the applicability of the income in kind provisions to the reducedrental situation, the court faced the "actually available" argument also decided
in Kimmes. In Kimmes, Usher, and in the instant case, the plaintiffs asserted
that income in the form of a rental subsidy was not "actually available" to them,
as required by 20 C.F.R. 416.1120. In an analysis which paralleled that of the
Kimmes court, the First Circuit rejected the argument:

25

Plaintiffs' argument is unsound, however, for income in kind can be "actually

available" to a person without being convertible into cash. When one receives
food, or clothing, or shelter, one receives an actual benefit whether or not there
is a market in which one might sell that benefit. Indeed, in the very statute at
issue, Congress referred to one form of "in-kind" income-the provision of
shelter in the home of a relative-that is ordinarily not convertible into cash. 42

U.S.C. 1382a(a)(2)(A). The Secretary has embodied the ordinary English

meaning of the term "actually available" when he defines "income" as the
receipt of "any property or services" which the recipient can "apply either
directly or by sale or conversion" to meet "basic need for food, clothing, and
shelter." 20 C.F.R. 416.1102. (Emphasis added.) In this case, plaintiffs
received the income "directly."
26

666 F.2d at 656. This analysis applies with equal force to the instant case. We
therefore hold that the receipt of housing for less than market value constituted
income in kind which was actually available to plaintiff.

27

Given the Whirlpool standard, we agree with the First, Ninth, and Tenth
Circuits that the language and legislative history of the statute support the
Secretary's reduction of benefits in the rental subsidy case. We also agree that
the reduced rental constitutes unearned income which is "actually available" to
plaintiff. We hold that the Secretary's regulations properly implement the
enabling legislation, and that these regulations were appropriately applied to
plaintiff's situation.

Constitutional Arguments
28

Because we hold that the Secretary's regulations validly implement the statute,
and are applicable to plaintiff's situation, we must decide the constitutional
questions raised by plaintiff. Plaintiff challenges the regulations on equal
protection grounds. In order to prevail, she must show that the classifications
created by the regulations are not rationally related to a legitimate governmental
objective:

29

Unless a statute employs a classification that is inherently invidious or that

impinges on fundamental rights, areas in which the judiciary then has a duty to
intervene in the democratic process, this Court properly exercises only a limited
review power over Congress, the appropriate representative body through
which the public makes democratic choices among alternative solutions to
social and economic problems. See San Antonio School District v. Rodriguez,
411 U.S. 1 (93 S.Ct. 1278, 36 L.Ed.2d 16) (1973). At the minimum level, this
Court consistently has required that legislation classify the persons it affects in
a manner rationally related to legitimate governmental objectives. See, e.g.
Dandridge v. Williams, 397 U.S. 471 (90 S.Ct. 1153, 25 L.Ed.2d 491) (1970);
Mathews v. deCastro, 429 U.S. 181 (97 S.Ct. 431, 50 L.Ed.2d 389) (1976).

30

Schweiker v. Wilson, 450 U.S. 221, 230, 101 S.Ct. 1074, 1080, 67 L.Ed.2d 186

(1981). We turn therefore to an analysis of plaintiff's equal protection claims

under the rational basis standard.11
A. Contribution to Rent
31

Plaintiff argued below that the regulation arbitrarily and irrationally failed to
take account of her actual contribution to rent. Because plaintiff paid $50 each
month for housing worth $150, the Secretary charged her with the receipt of
$100 in unearned income in kind each month. However, since section
416.1125(d) places upon this income a presumed maximum value ("PMV") of
one-third of monthly benefits, and since the $100 in unearned income exceeds
the PMV, plaintiff's benefits were reduced by approximately $80. Plaintiff
notes, correctly, that she would suffer the same $80 reduction if she made no
contribution to rent. Thus, she argues, she had $50 less to spend on non-housing
items per month than she would if she made no rental payment. Plaintiff asserts
that her $80 reduction in benefits should itself be reduced by $50 to reflect her
actual contribution to rent.

32

The district court ruled that the regulation improperly discriminated between
plaintiff and other claimants who contribute nothing to their rent. Thus, the
district court did not rule that the regulation treated similarly situated claimants
unequally; rather, it ruled that the regulation treated differently situated
claimants uniformly.

33

We cannot agree that the Secretary's uniform application of section

416.1125(d) constitutes an equal protection violation. Following the
congressional mandate expressed in the enabling statute, the Secretary
promulgated a regulation which tends to equalize claimants who do and those
who do not receive unearned income in kind. Unfortunately, this equalizing
step has the effect of high-lighting inequalities among claimants who receive
such income.12 However, section 416.1125(d) is clearly "rationally related to
(the) legitimate governmental objective( )"13 of equalizing SSI claimants who
receive in-kind incomes with those who do not. We hold that the Secretary's
failure further to classify among claimants who receive in-kind income does not
constitute an equal protection violation.
B. Exemption of Federal Housing Assistance

34

The Usher court also decided the question raised by plaintiff Nunemaker's
second equal protection claim: whether Congress's exemption of reduced-rental
income received by federal housing assistance recipients from the operation of

the "income in kind" provision constitutes an equal protection violation. The

Usher court concluded, and we agree, that it does not.
35

In raising her claim, plaintiff purportedly attacks the Secretary's actions in

applying the income in kind provisions to her, while not applying them to
unearned income in the form of federal housing assistance. In fact, however,
the exemption of this income was brought about by act of Congress in the face
of the Secretary's uniform application of the income in kind provisions to all
SSI recipients. In 1976, Congress amended the United States Housing Act of
1937, which provided low-income assistance known as "Section 8 housing."
The amendment provided:

36

Notwithstanding any other provision of law, the value of any assistance paid
with respect to a dwelling unit under (federal housing assistance programs) ...
may not be considered as income or a resource for the purpose of determining
... the amount of the benefits payable to ... (an SSI recipient).

37

Housing Authorization Act of 1976, Pub.L.No.94-375, 2(h), 90 Stat. 1067,

1068 (1976). A House report clearly shows that Congress understood the
Secretary's application of the income in kind provisions when it created this
exemption:

38 SSI program) establishes the requirement, as interpreted by HEW, that in-kind

(The
assistance to SSI recipients such as Section 8 housing assistance will be counted as
"unearned income", requiring a compensating reduction in SSI assistance payments.
By HEW regulation, until the actual amount of housing assistance is documented, a
reduction of one-third of the monthly SSI payment will be made in each individual
case.
39

This means that an SSI recipient residing in Section 8 housing will suffer a
reduction in SSI payments of one-third and then be charged a rental fee of not
more than 25% of his remaining income. No other group of low-income
persons, on or off public assistance rolls, suffer this extreme cost for accepting
Federal Housing assistance. Although SSI recipients are among the lowest of
income levels, and in greatest of need, they are effectively denied use of the
Section 8 program because of this regulation. All others receiving Section 8
assistance pay rents not to exceed 25% of income.

40

H.R.Rep.No.94-1091, 94th Cong., 2d Sess. 21 (1976).

41

Given this background, the Usher court rejected the claim raised by plaintiff

here:
42 difference in treatment at issue here reflects a rational effort by Congress to
(T)he
achieve a legitimate legislative objective. As the House Report explicitly states,
Congress feared that the "income in kind" provisions discouraged SSI recipients
from taking advantage of Section 8 housing. Moreover, it felt that those provisions
were unfair as between those Section 8 housing recipients who did receive SSI
assistance and those Section 8 housing recipients who did not receive SSI assistance.
Congress passed the exemption in order to make Section 8 housing more attractive
to SSI recipients and to produce greater fairness as among all Section 8 housing
recipients. We cannot say that this legislative judgment is unreasonable.
43

666 F.2d at 661. As the court then noted, the exemption, when viewed from the
perspective of all SSI recipients rather than all Section 8 recipients, does give
some advantage to those who benefit from both programs. But, the Usher court
held, "it was not irrational, given the Section 8 housing objectives, to create
that advantage." Id.14

44

We agree with this conclusion. As the court noted, if Congress is faced with a
constitutional requirement that it cannot "offer intended beneficiaries of
Program A any special advantage unless it also offers it to those who are
outside Program A, it might simply choose not to offer the special benefit-a
result that would work to no one's advantage." 666 F.2d 661. Congress's
express intent in enacting the exempting amendment was to make it easier for
SSI claimants to enter federally subsidized housing. There is no reason why
Congress should be constitutionally required at the same time to make it easier
for SSI claimants to enter into subsidized rental arrangements with private
parties. Nor is it incumbent upon Congress to explain why it is not extending
exemption to all other categories of SSI claimants. Congress expressed a
rational basis for exempting Section 8 SSI claimants, and explicitly provided a
justification for distinguishing those exempted from other SSI claimants, such
as plaintiff. Given Congress's broad discretion in legislating in this area, as we
have outlined, we cannot say that the statute, or the Secretary's actions
implementing it, violates plaintiff's right to equal protection.

45

For the foregoing reasons, the judgment of the district court will be reversed.

Honorable Charles R. Weiner, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation

Section 416.1125(d) provides in part:

(d) Valuation of support and maintenance for individuals in household

situations. When an eligible individual ... lives in a household (i.e., is not in an
institution), ... any support and maintenance received in kind but not received in
lieu of cash wages ... is unearned income. In such cases effective with payments
for December 1974, the maximum value of such support and maintenance is
presumed to be that amount which, for an individual or a couple with no other
income, would result in payment at two-thirds of the applicable payment
standard; i.e., the value is presumed to be one-third of the payment standard ....
This presumption will be applied in determining the benefits payable unless it
is rebutted by the individual's establishing that the current market value of such
support and maintenance, less any payment he makes therefor, is lower than the
presumed value. This rule will apply in the following circumstances:
(2) When an eligible individual ... lives in his own household, including a
commercial establishment, and receives support and maintenance in kind.
2

Plaintiff conceded below that this valuation was based on substantial evidence.
Appendix at 48

At the time, the presumed maximum value was computed by taking one-third
of Nunemaker's monthly benefit rate of $189.40, or $63.13, and adding $20.00
to reach $83.13. The $20.00 is added pursuant to a statutory section not relevant
to the instant case. 42 U.S.C. 1382a(b)(2)(A)
The one-third presumed maximum value places only a ceiling on the reduction
of benefits. A claimant is given the opportunity to show that the actual value of
in-kind support and maintenance is less than one-third of the applicable
monthly payment standard. 20 C.F.R. 416.1125(d) (1980).

Plaintiff argued in the court below that the regulation is arbitrary and irrational
solely because it failed to take account of her contribution to rent. Appendix at
49. While not deciding this precise issue, the district court held that the
regulation is arbitrary and irrational insofar as it treated plaintiff identically to
others who made no contribution to rent. Appendix at 35

42 U.S.C. 1381-1383c (1976)

"Resources" are defined to include most assets; property essential to selfsupport, including an individual's home, is exempted from the statutory
compilation. 42 U.S.C. 1382b

Section 416.1125(d) has also been upheld in several district court decisions.
See Herndon v. Harris, No. S-79-462 (E.D.Cal. Dec. 8, 1980); Young v.
Califano, No. S-79-225 (E.D.Cal. Dec. 8, 1980); Styles v. Harris, 503 F.Supp.

125 (D.Md.1980); Wynn v. Harris, 494 F.Supp. 878 (W.D.Tenn.1980); Jackson

v. Harris, 86 F.R.D. 452 (N.D.Ind.1980); Buschmann v. Harris, No. 78-622
(D.Ore. Mar. 11, 1980). But see Kimmes v. Califano, 472 F.Supp. 474
(D.Colo.1979), rev'd, 647 F.2d 1028 (10th Cir. 1981); Usher v. Califano, 506
F.Supp. 1230 (D.Mass.), rev'd, 666 F.2d 652 (1st Cir. 1981)
8

The Usher court faced the question whether the regulations impermissibly
discriminated between claimants who did and those who did not have formal
leases for their dwellings. 666 F.2d at 660. This issue is not relevant to the
instant case

In fact, Congress's exemption of federal housing assistance recipients provides

the basis for plaintiff Nunemaker's equal protection claim, discussed infra

10

Both the Antonioli and Kimmes courts held that the Secretary's regulations
validly implemented the statute. Kimmes, 647 F.2d at 1033; Antonioli, 624
F.2d at 81. The Antonioli decision squarely confronted a claim presented by
plaintiff Nunemaker in the instant case:
Appellant argues that applying a fair market value standard deprives him of the
benefit of his bargain in acquiring inexpensive housing. But such a bargain
cannot be assumed in a father-son relationship. Unearned income presumably
would not arise, however, as a consequence of an SSI recipient's having
negotiated rent at less than market value in an arm's length transaction.
624 F.2d at 80 n.3. We agree that the Secretary's regulation does not improperly
deprive plaintiff of the "benefit of (her) bargain."

11

In her brief, plaintiff generally acknowledges that the rational-basis standard

applies here. Appellee's Brief at 15-20. However, she contends that since the
regulation at issue interferes with a fundamental right by "imping(ing) on
personal choices in the realm of family living arrangements," heightened
scrutiny should be applied. Appellee's Brief at 22. Heightened scrutiny might
be applicable if the regulation impermissibly impinged on family living
arrangements. See, e.g., Moore v. East Cleveland, 431 U.S. 494, 97 S.Ct. 1932,
52 L.Ed.2d 531 (1977). We agree with the Usher court, however, that no such
impingement exists here. See Usher, 666 F.2d at 658 n.15

12

In a thorough discussion, the Usher court accurately illustrates how varying

contributions from relatives combine with the PMV to produce widely differing
economic positions among claimants. Usher, 666 F.2d at 659-60

13

Wilson, 450 U.S. at 230, 101 S.Ct. at 1080. See also Dandridge v. Williams,
397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970)

14

This conclusion is supported by the Supreme Court's decision in Schweiker v.

Wilson, 450 U.S. 221, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981). Wilson involved
an equal protection challenge to a statute which distinguished among SSI
claimants living in public institutions by conditioning the receipt of certain SSI
benefits upon the receipt of Medicaid by the claimant. The congressional
preference of Medicaid recipients was upheld by the Court. The legislative
history and the effect of the statute in Wilson parallel that of the Section 8
exemption in the instant case