Federal Register / Vol. 62, No. 8 / Monday, January 13, 1997 / Notices 1791

5 15 U.S.C. 78q-1(b) (3) (F).

6The staff of the Board of Governors of the

Federal Reserve System has concurred with the

Commission’s granting of accelerated approval.

Telephone conversation between John Rudolph,

Board of Governors of the Federal Reserve System,

and Chris Concannon, Staff Attorney, Division of

Market Regulation, Commission (January 3, 1997). 7 17 CFR 200.30–3(a) (12).

III. Date of Effectiveness of the

Proposed Rule Change and Timing for

Commission Action

Section 17A(b) (3) (F) of the Act 5

requires that the rules of a clearing

agency be designed to promote the

prompt and accurate clearance and

settlement of securities transactions and

to assure the safeguarding of securities

and funds which are in the custody or

control of the clearing agency or for

which it is responsible. The

Commission believes that Philadep’s

proposal relating to its family of

accounts risk monitoring procedures are

consistent with Philadep’s obligations

under Section 17A(b) (3) (F) because the

proposed rule change will establish an

automated risk review system to ensure

that risk management controls are

properly applied to transactions in

omnibus accounts. Additionally, the

Commission believes the proposal is

consistent with Philadep’s obligations

under Section 17A(b) (3) (F) to promote

the prompt and accurate clearance and

settlement of securities transactions

because the proposed rule change will

automate a risk review procedure which

is currently performed manually,

therefore, improving the efficiency of

Philadep’s SDFS system.

Philadep has requested that the

Commission find good cause for

approving the proposed rule change

prior to the thirtieth day after the date

of publication of notice of filing. The

Commission finds good cause for

approving the proposed rule change

prior to the thirtieth day after the date

of publication of notice of filing because

the proposed rule change will allow

Philadep to immediately implement the

family of account risk monitoring

procedures. The Commission believes

that the automation of Philadep’s

manual risk review procedures for

omnibus accounts will reduce the risk

of human error and will increase the

efficiency of Philadep’s SDFS system

with respect to omnibus accounts.6

IV. Solicitation of Comments

Interested persons are invited to

submit written data, views, and

arguments concerning the foregoing.

Persons making written submissions

should file six copies thereof with the

Secretary, Securities and Exchange

Commission, 450 Fifth Street, N.W.,

Washington, DC 20549. Copies of the

submission, all subsequent

amendments, all written statements

with respect to the proposed rule

change that are filed with the

Commission, and all written

communications relating to the

proposed rule change between the

Commission and any person, other than

those that may be withheld from the

public in accordance with the

provisions of 5 U.S.C. 552, will be

available for inspection and copying in

the Commission’s Public Reference

Room, 450 Fifth Street, N.W.,

Washington, D.C. 20549. Copies of such

filing will also be available for

inspection and copying at the principal

office of Philadep. All submissions

should refer to the file number SR–

Philadep–96–22 and should be

submitted by February 3, 1997.

It is therefore ordered, pursuant to

Section 19(b) (2) of the Act, that the

proposed rule change (File No. SR–

Philadep–96–22) be, and hereby is

approved.

For the Commission by the Division of

Market Regulation, pursuant to delegated

authority.7

Margaret H. McFarland,

Deputy Secretary.

[FR Doc. 97–689 Filed 1–10–97; 8:45 am]

BILLING CODE 8010–01–M

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.

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
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