[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If this Social Security Acquiescence Ruling is later rescinded as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
