[Federal Register Volume 66, Number 223 (Monday, November 19, 2001)]
[Notices]
[Page 58047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-28458]



  Federal Register / Vol. 66, No. 223 / Monday, November 19, 2001 / 
Notices  

[[Page 58047]]


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SOCIAL SECURITY ADMINISTRATION


Rescission of Social Security Acquiescence Ruling 97-2(9)

AGENCY: Social Security Administration.

ACTION: Notice of Rescission of Social Security Acquiescence Ruling 97-
2(9)--Gamble v. Chater, 68 F.3d. 319 (9th Cir. 1995).

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SUMMARY: In accordance with 20 CFR 402.35(b)(2), 404.985(e) and 
416.1485(e), the Commissioner of Social Security gives notice of the 
rescission of Social Security Acquiescence Ruling 97-2(9).

EFFECTIVE DATE: This notice of rescission is effective February 19, 
2002.

FOR FURTHER INFORMATION CONTACT: Wanda D. Mason, Litigation Staff, 
Social Security Administration, 6401 Security Blvd., Baltimore, MD 
21235, (410) 966-5044.

SUPPLEMENTARY INFORMATION: 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 or regulations when the 
Government has decided not to seek further review of the case or is 
unsuccessful on further review.
    As provided by 20 CFR 404.985(e)(4) and 416.1485(e)(4), we may 
rescind a Social Security Acquiescence Ruling as obsolete if we 
subsequently clarify, modify or revoke the regulation or ruling that 
was the subject of the circuit court holding for which the Acquiescence 
Ruling was issued.
    On January 13, 1997, we published Acquiescence Ruling (AR) 97-2(9) 
(62 FR 1791) to reflect the holding in Gamble v. Chater, 68 F.3d 319 
(9th Cir. 1995). In Gamble, the United States Court of Appeals for the 
Ninth Circuit held that a claimant whose leg was amputated at or above 
the tarsal region satisfied current Listing 1.10C if he or she ``is 
unable to use any prosthesis that is reasonably available to him.'' The 
court concluded that a claimant who cannot afford a prosthesis, even if 
he could use one, does not have, as a practical matter, a prosthesis 
reasonably available to him or her.
    The AR applies to cases in which the claimant resides in Alaska, 
Arizona, California, Guam, Hawaii, (including American Samoa), Idaho, 
Montana, Nevada, Northern Mariana Islands, Oregon and Washington at 
time of the determination or decision at any level of administrative 
review.
    In this issue of the Federal Register, we are publishing final 
rules that, among other things, replace current Listing 1.10C with a 
final Listing 1.05B and added section 1.00J of the introductory text. 
Listing 1.05B in the final rules requires that an individual with an 
amputation of one or both lower extremities at or above the tarsal 
region have stump complications that result in the medical inability to 
use a prosthetic device to ambulate effectively, as defined in section 
1.00B2b of the musculoskeletal system listings, which have lasted or 
are expected to last for at least 12 months. Consequently, the final 
rules clarify that the inability to use a prosthetic device to ambulate 
effectively refers to a ``medical'' inability to use a prosthetic 
device as a result of stump complications. The inability to afford a 
prosthetic device does not represent a ``medical'' inability to use a 
prosthetic device to ambulate effectively.
    We also clarify in section 1.00J3 of the final rules that, in 
amputation involving a lower extremity or extremities, it is 
unnecessary to evaluate the individual's ability to walk without the 
prosthesis in place. As we explain the preamble to the final rules, 
this is because we recognize that individuals with the type of lower 
extremity amputation described in final listings 1.05B will have an 
inability to ambulate effectively, as defined in section 1.00B2b, when 
they are not using a prosthesis. This would be true whether they do not 
use a prosthesis because they cannot afford one, because a prosthesis 
has not been prescribed for them, or for other reasons.
    Accordingly, since the rule that was the subject of the Gamble AR 
has now been revised, we are rescinding AR 97-2(9) concurrently with 
the effective date of the final rules. The final rules and this notice 
of rescission restore uniformity to our nationwide system of rules, in 
accordance with our commitment to the goal of administering our 
programs through uniform national standards.

(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; 96.006--
Supplemental Security Income)
    Dated: July 5, 2001.
Larry G. Massanari,
Acting Commissioner of Social Security.
[FR Doc. 01-28458 Filed 11-16-01; 8:45 am]
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