1792 Federal Register / Vol. 62, No. 8 / Monday, January 13, 1997 / Notices

above the tarsal region) and cannot

afford the cost of a prosthesis has an

impairment that meets the requirements

of Regulations 20 CFR Part 404, Subpart

P, Appendix 1, section 1.10C.

Statute/Regulation/Ruling Citation:

Sections 223(d)(1) and 1614(a)(3) of the

Social Security Act (42 U.S.C. 423(d)(1)

and 1382c(a)(3)); 20 CFR 404.1530,

416.930; 20 CFR Part 404, Subpart P,

Appendix 1, section 1.10C; Social

Security Ruling (SSR) 82-59.

Circuit: Ninth (Alaska, Arizona,

California, Guam, Hawaii (including

American Samoa), Idaho, Montana,

Nevada, Northern Mariana Islands,

Oregon, Washington).

Gamble v. Chater, 68 F.3d 319 (9th

Cir. 1995).

Applicability of Ruling: This Ruling

applies to determinations or decisions at

all administrative levels (i.e., initial,

reconsideration, Administrative Law

Judge (ALJ) hearing and Appeals

Council).

Description of Case: The plaintiff,

David Gamble, had his right leg

amputated below the knee in July 1988.

Although he was able to use a

prosthesis, physicians expected that

shrinkage of the stump over the next

two years might require changes in the

prosthesis. In late 1989, the skin on the

stump began to break down. By October

1991, the prosthesis did not fit properly

and could not be satisfactorily adjusted.

Because Mr. Gamble did not have and

could not obtain $3,477.80, the cost of

a replacement prosthesis, his treating

physician concluded that nothing more

could be done and limited him to

walking with a crutch.

Mr. Gamble applied for Supplemental

Security Income benefits based on

disability in April 1991 and Social

Security disability insurance benefits in

May 1991. Following denial of his

claims at both the initial and

reconsideration levels of the

administrative review process, the

plaintiff requested and received a

hearing before an ALJ. In the hearing

decision, the ALJ noted that Mr. Gamble

could not afford a new prosthesis and

found that his condition did not meet or

equal Listing 1.10C in the Listing of

Impairments contained in 20 CFR Part

404, Subpart P, Appendix 1. The

district court upheld SSA’s decision.

Mr. Gamble appealed this decision to

the United States Court of Appeals for

the Ninth Circuit.

Holding: The Ninth Circuit reversed

the decision of the district court. The

Court of Appeals noted that the proper

interpretation of Listing 1.10C was an

issue of first impression in the Ninth

Circuit. After reviewing the principle

upheld by other Circuits that

‘‘[d]isability benefits may not be denied

because of the claimant’s failure to

obtain treatment he cannot obtain for

lack of funds,’’ the Court of Appeals

held that the requirement in Listing

1.10C that a claimant be unable to use

a prosthesis effectively ‘‘means the

inability to use a prosthesis that is

reasonably available to the claimant.’’

Accordingly, the court also held that ‘‘a

person whose leg was amputated at or

above the tarsal region satisfies Listing

§ 1.10 if he is unable to use any

prosthesis that is reasonably available to

him.’’

The court found that an amputee who

is unable to reasonably obtain a

prosthesis should not be treated

differently from any other disabled

person who cannot obtain the treatment,

therapy or medical device needed to

restore the ability to work. In addition,

the court found that claimants who

could obtain prostheses but who simply

choose not to purchase them do not

meet the requirements of Listing 1.10C

and could be found ‘‘not disabled’’

under 20 CFR 404.1530 and 416.930 for

failing to follow prescribed treatment

without good reason. Accordingly, the

court reversed and remanded the case

with instructions for an award of

benefits because Mr. Gamble could not

realistically obtain the prosthesis he

needed.

Statement As To How Gamble Differs

From Social Security Policy

At issue in Gamble is the meaning of

the term ‘‘[i]nability to use a prosthesis

effectively’’ in Listing 1.10C. What

constitutes an ‘‘inability to use a

prosthesis effectively’’ is not defined in

SSA’s regulations. In Listing 1.10C,

‘‘inability’’ means a medical inability,

i.e., a claimant cannot effectively use a

prosthesis because of medical

complications. The intent is to measure

medical severity. The availability of

prosthetic devices and a claimant’s

inability to afford a prosthesis are not

considered for the purpose of

determining disability under the Listing

of Impairments.

The Gamble court held that a

claimant ‘‘whose leg was amputated at

or above the tarsal region satisfies

Listing § 1.10 if he is unable to use any

prosthesis that is reasonably available to

him.’’ As a practical matter, the court

concluded that a claimant who cannot

afford a prosthesis, even if he could use

one, does not have a prosthesis

reasonably available to him and thus, is

unable to use a prosthesis.

Explanation of How SSA Will Apply

The Gamble Decision Within The

Circuit

This Ruling applies only where the

claimant resides in Alaska, Arizona,

California, Guam, Hawaii (including

American Samoa), Idaho, Montana,

Nevada, Northern Mariana Islands,

Oregon or Washington at the time of the

determination or decision at any

administrative level, i.e., initial,

reconsideration, ALJ hearing or Appeals

Council.

A claimant whose lower extremity is

amputated at or above the tarsal region

and is unable to use any prosthesis that

is reasonably available to him will be

considered to have satisfied the

requirements of Listing 1.10C. When

determining the reasonable availability

of prosthetic devices, adjudicators must

consider evidence of an inability to

afford the cost of the prosthesis.

Adjudicators must evaluate all such

evidence and consider the claimant’s

economic circumstances in determining

whether the claimant can or cannot

afford the prosthesis.

[FR Doc. 97–668 Filed 1-10-97; 8:45 am]

BILLING CODE 4190-29-F

[Social Security Acquiescence Ruling 97-

1(1)]

Parisi By Cooney v. Chater; Reduction

of Benefits Under the Family Maximum

In Cases Involving Dual Entitlement—

Title II of the Social Security Act

AGENCY: Social Security Administration.

ACTION: Notice of Social Security

Acquiescence Ruling.

SUMMARY: In accordance with 20 CFR

422.406(b)(2), the Commissioner of

Social Security gives notice of Social

Security Acquiescence Ruling 97-1(1).

EFFECTIVE DATE: January 13, 1997.

FOR FURTHER INFORMATION CONTACT:

Gary Sargent, Litigation Staff, Social

Security Administration, 6401 Security

Boulevard, Baltimore, MD 21235, (410)

965-1695.

SUPPLEMENTARY INFORMATION: Although

not required to do so pursuant to 5

U.S.C. 552(a)(1) and (a)(2), we are

publishing this Social Security

Acquiescence Ruling in accordance

with 20 CFR 422.406(b)(2).

A Social Security Acquiescence

Ruling explains how we will apply a

holding in a decision of a United States

Court of Appeals that we determine

conflicts with our interpretation of a

provision of the Social Security Act (the

Act) or regulations when the

Government has decided not to seek
Federal Register / Vol. 62, No. 8 / Monday, January 13, 1997 / Notices 1793

1 The First Circuit’s reasoning differed from the

district court’s analysis that distinguished between

‘‘effective’’ and ‘‘conditional’’ entitlements. The

court held that this distinction had ‘‘no roots in the

statutory language.’’

further review of that decision or is

unsuccessful on further review.

We will apply the holding of the

Court of Appeals decision as explained

in this Social Security Acquiescence

Ruling to claims at all levels of

administrative adjudication within the

First Circuit. This Social Security

Acquiescence Ruling will apply to all

determinations and decisions made on

or after January 13, 1997. If we made a

determination or decision on your

application for benefits between

November 8, 1995, the date of the Court

of Appeals decision, and January 13,

1997, the effective date of this Social

Security Acquiescence Ruling, you may

request application of the Ruling to your

claim if you first demonstrate, pursuant

to 20 CFR 404.985(b), that application of

the Ruling could change our prior

determination or decision.

If this Social Security Acquiescence

Ruling is later rescinded as obsolete, we

will publish a notice in the Federal

Register to that effect as provided for in

20 CFR 404.985(e). If we decide to

relitigate the issue covered by this

Social Security Acquiescence Ruling as

provided for by 20 CFR 404.985(c), we

will publish a notice in the Federal

Register stating that we will apply our

interpretation of the Act or regulations

involved and explaining why we have

decided to relitigate the issue.

(Catalog of Federal Domestic Assistance

Programs Nos. 96.001 Social Security -

Disability Insurance; 96.002 Social Security -

Retirement Insurance; 96.004 Social Security

- Survivors Insurance.)

Dated: September 19, 1996.

Shirley S. Chater,

Commissioner of Social Security.

Acquiescence Ruling 97-1(1)

Parisi By Cooney v. Chater, 69 F.3d

614 (1st Cir. 1995)—Reduction of

Benefits Under the Family Maximum In

Cases Involving Dual Entitlement—Title

II of the Social Security Act.

Issue: Whether, in determining the

amount of benefit reduction under the

maximum family benefits provision in

section 203(a) of the Social Security Act

(the Act) in cases where a beneficiary is

entitled to benefits on more than one

earnings record, only those monthly

benefits payable on the worker’s

earnings record after application of the

simultaneous benefit provisions are

included in calculating the total

monthly benefits payable on that record.

Statute/Regulation/Ruling Citation:

Sections 202(k)(3)(A), 202(r) and 203(a)

of the Social Security Act (42 U.S.C.

402(k)(3)(A), 402(r) and 403(a)); 20 CFR

404.304(d), 404.403, 404.404,

404.407(a), 404.623; Social Security

Ruling 62-7.

Circuit: First (Maine, New Hampshire,

Massachusetts, Rhode Island, Puerto

Rico).

Parisi By Cooney v. Chater, 69 F.3d

614 (1st Cir. 1995).

Applicability of Ruling: This Ruling

applies to determinations or decisions at

all administrative levels (i.e., initial,

reconsideration, Administrative Law

Judge (ALJ) hearing or Appeals

Council).

Description of Case: Anthony Parisi,

the worker, became disabled in

February 1988. He and Anthony Parisi

II, his dependent child and the plaintiff

in this case, began receiving Social

Security benefits on Anthony Parisi’s

earnings record. In 1991, Adriana Parisi,

the worker’s spouse, became entitled to

retirement benefits (old-age benefits)

based on her own earnings record.

Under section 202(r) of the Act, Adriana

was deemed also to have applied for

and become entitled to wife’s benefits

based on the worker’s earnings record.

The Social Security Administration

(SSA) determined under section

202(k)(3)(A) of the Act that because the

monthly retirement benefits that

Adriana was entitled to receive on her

own record exceeded the amount of her

monthly wife’s benefits on Anthony

Parisi’s earnings record, she could only

receive payment for the retirement

benefits payable on her own earnings

record.

SSA counted the wife’s benefits to

which Adriana was entitled, but which

were not actually paid to her, toward

the monthly maximum amount of

benefits payable on Anthony Parisi’s

earnings record under section 203(a) of

the Act (the family maximum). Because

the total monthly amount of Anthony’s

disability benefits, the plaintiff’s child’s

benefits, and Adriana’s wife’s benefits

exceeded the monthly family maximum

limit, SSA reduced the amount of the

plaintiff’s and the wife’s monthly

benefits.

The plaintiff’s request for

reconsideration of the benefit reduction

was denied, and he requested a hearing

before an ALJ. The ALJ found that

Adriana’s wife’s benefits should not be

counted toward the family maximum.

However, the Appeals Council reversed

the ALJ’s decision and the plaintiff

appealed to the district court. The

district court found that the family

maximum limit on monthly benefits

was meant to include only ‘‘effective

entitlements’’ that result in actual

payment of benefits. Because Adriana’s

entitlement to wife’s benefits was only

‘‘conditional’’ upon her not being

entitled to a greater amount of monthly

benefits on her own earnings record, the

district court concluded that Adriana’s

wife’s benefits should not be counted

toward the family maximum. SSA

appealed and the United States Court of

Appeals for the First Circuit, while

offering somewhat different reasoning,

found that the district court correctly

reversed the Appeals Council’s

decision.

Holding: After reviewing the statutory

language in sections 203(a) and

202(k)(3)(A) of the Act, the legislative

history, SSA’s regulations and policy

considerations, the Court of Appeals

held that ‘‘Adriana’s non-payable

spousal benefits d[id] not count toward

the section [2]03(a) ‘family maximum’ .

. . [because] section [2]03(a) operates to

limit the total amount of benefits

actually payable on a single worker’s

record, not the amount of entitlements

theoretically available.’’ The court

further held that because Adriana’s

deemed entitlement to wife’s benefits

resulted in ‘‘zero payable benefits’’

under section 202(k)(3)(A) of the Act,

none of her benefits should be included

in the family maximum computation

required under section 203(a).

Without reviewing SSA’s definition of

‘‘entitlement,’’ the court reasoned that,

if SSA was correct in arguing that

section 203(a) of the Act places a limit

on entitlements, it would be

contradictory and impossible to enforce

compliance with the family maximum

cap by reducing payable benefits. The

court held that section 203(a) of the Act

requires SSA to consider the actual

amount of benefits payable under the

relevant benefits provisions (read as a

whole), not purely theoretical

entitlements, in calculating the total

monthly benefits payable on the

worker’s earnings record. The court

noted that its conclusion did not

undermine SSA’s definition of

‘‘entitlement’’ and that Adriana had

entitlement, in an abstract way, to wife’s

benefits under section 202(b)(1) of the

Act.1

The court also held that the statutory

language requires that monthly benefits

be reduced under the family maximum

only as much ‘‘as necessary’’ to enforce

compliance and that, because the

reduction in Parisi’s case depended

on the calculation of Adriana’s wife’s

benefits, which amounted to zero due to

her simultaneous entitlement to a higher

benefit on her own earnings record, a

reduction was not necessary.

Accordingly, the court concluded that
1794 Federal Register / Vol. 62, No. 8 / Monday, January 13, 1997 / Notices

the total amount of benefits payable on

the worker’s record did not exceed the

family maximum and that Anthony’s

child’s benefits should not be reduced.

Statement As To How Parisi Differs

From Social Security Policy

Section 203(a) of the Act establishes

a limit, derived from the worker’s

primary insurance amount, on the total

monthly benefits to which dependents

or survivors may be entitled on the basis

of one worker’s earnings record (the

family maximum). Under SSA’s

regulations implementing section 203(a)

of the Act (20 CFR 404.403 and

404.404), the benefits of each claimant

entitled on a worker’s earnings record

are reduced proportionately so that the

total benefits of those entitled on the

record in one month do not exceed the

family maximum. In calculating total

monthly benefits, SSA includes all

benefits of the claimants who are

entitled on the worker’s record without

considering whether the benefits are

actually due or payable.

The Parisi court held that, when

computing a reduction under the family

maximum pursuant to section 203(a) of

the Act, SSA should not include the

monthly benefit that would otherwise

be payable to the spouse if payment of

that spouse’s benefit is precluded by

section 202(k)(3)(A) of the Act due to

the spouse’s simultaneous entitlement

to a higher benefit on the spouse’s own

earnings record.

Explanation of How SSA Will Apply

The Parisi Decision Within The Circuit

This Ruling applies only to cases

involving claimants whose benefits are

reduced because of the family maximum

and who reside in Maine, New

Hampshire, Massachusetts, Rhode

Island or Puerto Rico at the time of the

determination or decision at any

administrative level, i.e., initial,

reconsideration, ALJ hearing or Appeals

Council.

When the total benefits due or

payable for any month on the earnings

record of a worker exceed the maximum

amount under section 203(a) of the Act

(the family maximum applies) and a

person entitled on the worker’s earnings

record is simultaneously entitled to

benefits on another earnings record,

SSA will consider only the amount of

monthly dependent’s or survivor’s

benefits actually due or payable to the

simultaneously-entitled person when

determining the amount of the benefit

reduction because of the family

maximum. Adjudicators will continue

to apply SSA’s other policies for

applying and calculating the family

maximum reduction.

[FR Doc. 97–667 Filed 1-10-97; 8:45 am]

BILLING CODE 4190-29-F

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

Noise Exposure Map Notice; Receipt of

Noise Compatibility Program and

Request for Review, Washington

National Airport, Washington, DC

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Notice.

SUMMARY: The Federal Aviation

Administration (FAA) announces its

determination that the noise exposure

maps submitted by the Metropolitan

Washington Airport Authority (MWAA)

for the Washington National Airport

(DCA) under the provisions of Title I of

the Aviation Safety and Noise

Abatement Act of 1979 (Public Law 96–

193) and 14 CFR part 150 are in

compliance with applicable

requirements. The FAA also announces

that it is reviewing a proposed noise

compatibility program that was

submitted for DCA under part 150 in

conjunction with the noise exposure

maps and that this program will be

approved or disapproved on or before

July 3, 1997.

EFFECTIVE DATE: The effective date of

FAA’s determination on the noise

exposure maps and of the start of its

review of the associated noise

compatibility program is January 3,

1997. The public comment period ends

March 3, 1997.

FOR FURTHER INFORMATION CONTACT:

Frank Squeglia, Environmental

Specialist, FAA Eastern Regional Office,

Airports Division, AEA–610, Fitzgerald

Building, JFK International Airport,

Jamaica, NY 11430; (718) 553–3325.

Comments on the proposed noise

compatibility program should also be

submitted to the above office.

SUPPLEMENTARY INFORMATION: This

notice announces that the FAA finds

that the noise exposure maps submitted

for DCA are in compliance with

applicable requirements of Part 150,

effective January 3, 1997. Further, FAA

is reviewing a proposed noise

compatibility program for that airport

which will be approved or disapproved

on or before July 3, 1997. This notice

also announces the availability of this

program for public review and

comment.

Under Section 103 to Title I of the

Aviation Safety and Noise Abatement

Act of 1979 (hereinafter referred to as

‘‘the Act’’), an airport operator may

submit to the FAA noise exposure maps

which meet applicable regulations and

which depict noncompatible land uses

as of the date of submission of such

maps, a description of projected aircraft

operations, and the way in which such

operations will affect such maps. The

Act requires such maps to be developed

in consultation with interested and

affected parties in the local community,

government agencies, and persons using

the airport.

An airport operator who has

submitted noise exposure maps that are

found by FAA to be in compliance with

the requirements of Federal Aviation

Regulations (FAR) Part 150,

promulgated pursuant to Title I of the

Act, may submit a noise compatibility

program for FAA approval which sets

forth the measures the operator has

taken or proposes for the reduction of

existing noncompatible uses and for the

prevention of the introduction of

additional noncompatible uses.

The MWAA submitted to the FAA on

October 9, 1990, noise exposure maps,

description and other documentation

which were produced during an airport

noise compatibility planning study from

1985 to 1990. The original document

was dated August 1990. It was requested

that the FAA review this material as the

noise exposure maps, as described in

Section 103(a)(1) of the act, and that the

noise mitigation measures, to be

implemented jointly by the airport and

surrounding communities, be approved

as a noise compatibility program under

Section 104(b) of the Act. FAA’s

preliminary review of the Study in

accordance with 14 CFR Part 150.31

required changes to the Study.

On March 30, 1994, MWAA

submitted its revised Part 150 Noise

Compatibility Program (NCP), dated

December 1993, to the FAA. The FAA’s

preliminary review of the revised NCP

raised concerns about the use of the

1989 Noise Exposure Map (NEM) as the

base case NEM and use of the ‘‘1994

Noise Exposure Map: Improved Fleet

Mix and Enhanced Compliance,’’ shown

in the revised document as Figure V–3,

as the ‘‘five-year’’ NEM. FAA and

Authority staff have discussed this

matter and recommend the use of this

1994 NEM as the base case NEM, and

the use of the ‘‘All Stage 3 Operations’’

NEM, shown in Attachment 1 of the

document as Figure 8, for the five-year

forecast NEM. These uses of the 1994

NEM and the ‘‘All Stage 3 Operations’’

NEM are consistent with the guidelines

set forth in 14 CFR Part 150.21 (a) and

(a)(1). MWAA has presented an

Addendum, dated November 22, 1996,