[Federal Register Volume 62, Number 8 (Monday, January 13, 1997)]
[Notices]
[Pages 1791-1792]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-668]


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SOCIAL SECURITY ADMINISTRATION

[Social Security Acquiescence Ruling 97-2(9)]


Gamble v. Chater; Amputation of a Lower Extremity--When the 
Inability to Afford the Cost of a Prosthesis Meets the Requirements of 
Section 1.10C of the Listing of Impairments--Titles II and XVI of the 
Social Security Act

AGENCY: Social Security Administration.

ACTION: Notice of Social Security Acquiescence Ruling.

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SUMMARY: In accordance with 20 CFR 422.406(b)(2), the Commissioner of 
Social Security gives notice of Social Security Acquiescence Ruling 97-
2(9).

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 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 Ninth 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 
October 12, 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) or 
416.1485(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    If this Social Security Acquiescence Ruling is later rescinded as 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) and 416.1485(e). If we 
decide to relitigate the issue covered by this Social Security 
Acquiescence Ruling as provided for by 20 CFR 404.985(c) and 
416.1485(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 Program Nos. 96.001 Social 
Security - Disability Insurance; 96.002 Social Security - Retirement 
Insurance; 96.004 Social Security - Survivors Insurance; 96.005 
Special Benefits for Disabled Coal Miners; 96.006 Supplemental 
Security Income.)

    Dated: October 15, 1996.
Shirley S. Chater,
Commissioner of Social Security.

Acquiescence Ruling 97-2(9)

    Gamble v. Chater, 68 F.3d 319 (9th Cir. 1995)--Amputation of a 
Lower Extremity--When the Inability to Afford the Cost of a Prosthesis 
Meets the Requirements of Section 1.10C of the Listing of Impairments--
Titles II and XVI of the Social Security Act.
    Issue: Whether a claimant for disability insurance benefits or for 
Supplemental Security Income benefits based on disability who has an 
amputation of a lower extremity (at or

[[Page 1792]]

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 Sec. 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 Sec. 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