AR 97-2(9) (Rescinded 2/19/2002)
EFFECTIVE/PUBLICATION DATE: 01/13/97
Acquiescence Ruling 97-2(9)
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 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.
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.
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).
This Ruling applies to determinations or decisions at all administrative levels (i.e., initial, reconsideration, Administrative Law Judge (ALJ) hearing and Appeals Council).
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.
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.
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.
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.
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