Al-Khaled and Secretary, Department of Social Services (Social services second review)

[2017] AATA 1227

Al-Khaled and Secretary, Department of Social Services (Social services second review) [2017] AATA 1227 (8 August 2017)

Division:GENERAL DIVISION

File Number(s):      2017/0053

Re:Rameh Al-Khaled

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Member

Date:8 August 2017

Place:Sydney

The decision under review is affirmed.

...............[sgd].........................................................

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant qualified for disability support pension – hemiparesis condition – spine condition – mental health condition – whether applicant had a severe impairment – decision affirmed

LEGISLATION

Social Security Act 1994 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) sch 2

SECONDARY MATERIALS

Social Security (Active Participation for Disability Support Pension) Determination 2014

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr I Alexander, Member

8 August 2017

1. On 2 May 2016 Mr Al-Khaled, who is now 44 years old, lodged a claim for Disability Support Pension (DSP) under the Social Security Act 1991 (the Act).

2. The claim was rejected by Centrelink, both initially and on internal review, on the basis that Mr Al-Khaled did not satisfy the requirements of s 94 of the Act. In particular, he did not satisfy s 94(1)(c) of the Act as he had not met the requirements for active participation in a program of support (POS).

3. In a decision dated 5 December 2016, the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the decision to reject Mr Al-Khaled’s claim.

4. AAT1 found that Mr Al-Khaled did not satisfy s 94(1)(c) of the Act on the basis that he did not have “a continuing inability to work” because he did not suffer a “severe impairment” as defined in the Act and had not “actively participated in a program of support” as set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).

5. In this proceeding Mr Al-Khaled seeks review of the AAT1 decision.

6. At the hearing Mr Al-Khaled was self-represented but assisted by an Arabic language interpreter.

   ISSUES

7. In order to qualify for DSP, Mr Al-Khaled must satisfy the requirements of s 94 of the Act as at the date of the claim or within 13 weeks of lodging the claim, in accordance with subclause 4(1) of Schedule 2 to the Social Security (Administration) Act1999, that is, between 2 May 2016 and 1 August 2016 (the claim period).

8. Section 94(1) of the Act provides that a person is qualified for DSP if:

   ·the person has a physical, intellectual or psychiatric impairment (94(1)(a)); and

   ·the person’s impairment is of 20 points or more under the Impairment Tables (94(1)(b)); and

   ·the person has a continuing inability to work as defined by the Act (94(1)(c)(i)).

9. The Respondent concedes, and the Tribunal accepts, that Mr Al-Khaled suffers medical conditions that cause impairment and, therefore, satisfied s 94(1)(a) of the Act.

10. For present purposes, the relevant medical conditions include left sided hemiparesis, a lumbar spine condition and a mental health condition (major depression).

11. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

12. For the purposes of paragraph 6(3)(a), a condition is permanent if it is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and

    ·fully treated (paragraph 6(4)(b)); and

    ·fully stabilised (paragraph 6(4)(c)); and

    ·more likely than not, in light of available evidence, to persist for more than 2 years (paragraph 6(4)(d)).

13. The Introduction to each relevant Table of the Impairment Determination requires that the “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.

14. Also, the Introduction to Table 5 of the Impairment Determination, which is to be used “where a person has a permanent condition resulting in functional impairment due to a mental health condition”, states that the diagnosis of the condition “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”.

15. The Respondent concedes and the Tribunal accepts that, during the claim period, Mr Al-Khaled’s condition of left hemiplegia was permanent for the purposes of the Impairment Determination.

16. The Respondent contends that ratings under the Impairment Tables can be assigned as follows:

    ·Table 1 (Functions requiring Physical Exertion and Stamina) – 5 points

    ·Table 2 (Upper Limb Function) – 5 points

    ·Table 3 (Lower Limb Function) – 10 points

17. The Respondent also concedes and the Tribunal accepts that, during the claim period, the lumbar spine condition was permanent for the purposes of the Impairment Determination and contends that a rating of 10 points under the Impairment Table 4 (Spinal Function) can be assigned.

18. With respect to the condition of major depression, the Respondent contends that, during the claim period, this condition could not be considered permanent for the purposes of the Impairment Determination and that a rating under the Impairment Table 5 (Mental Health Function) cannot be assigned.

19. It follows that, during the claim period, Mr Al-Khaled’s impairment was greater than 20 points and, therefore, satisfied s 94(1)(b) of the Act.

20. The Respondent contends that, during the claim period, Mr Al-Khaled did not have a continuing inability to work and, and therefore did not satisfy s 94(1)(c) of the Act.

21. Section 94(2)(aa) of the Act provides that a person has a continuing inability to work because of an impairment if the Secretary is satisfied that “in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) … the person has actively participated in a POS within the meaning of subsection (3C)”.

22. Subsection 3B provides that a person’s impairment is a severe impairment if the person’s impairment is 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

23. Section 7 of the POS Determination provides, inter alia, that a person has actively participated in a POS if they have participated in the program of support for a period of at least 18 months during the 36 months prior to the date of claim.

24. Centrelink documents indicate that in the three years prior to the date of claim Mr Al-Khaled had not attended any appointments with Jobs Services Australia providers and, therefore, had not actively participated in a POS.

25. It follows that Mr Al-Khaled’s claim for DSP cannot succeed unless he suffered a severe impairment during the claim period. This means that the determinative issue in this matter is whether, during the claim period, Mr Al-Khaled had a rating of 20 points or more under a single Impairment Table.

    LEFT SIDED HEMIPARESIS

    Medical evidence

26. In a report dated 25 June 2010 Dr Harvey-Sutton, occupational physician, described Mr Al-Khaled’s condition as “Left hemiparesis/congenital spasticity of left arm and leg (cerebral palsy)”.

27. Dr Harvey-Sutton noted that Mr Al-Khaled was partially independent in self-care, did some gardening including lawn mowing, and was able to drive a car with automatic transmission by using his right hand for steering. Mr Al-Khaled reported that he had obtained his driver’s licence with the assistance of an interpreter.

28. In a report dated 13 February 2014 Dr Alameddin, general practitioner, stated that Mr Al-Khaled suffered a “significant neurological disorder, left upper limb weakness, left lower limb weakness, hemiparesis and spasticity of the left lower limb due to birth brain injury”.

29. Dr Alameddin provided no assessment with respect to impact on ability to function caused by Mr Al-Khaled’s longstanding hemiparesis.

30. In a Centrelink Medical Report dated 13 January 2015 Dr Hanna, general practitioner, confirmed the diagnosis of left hemiparesis and spasticity but provided no meaningful assessment of the impact of this condition on Mr Al-Khaled’s ability to function.

31. In a Centrelink Medical Report dated 20 April 2015 Dr Alameddin described impact on ability to function as “it affects patient lifestyle significantly” but provided no other details.

32. In a letter dated 1 April 2016 Dr Alameddin again confirmed the diagnosis but provided no meaningful assessment with respect to impact on ability to function.

33. In March 2017, a Conference Registrar of the AAT prepared a letter for Mr Al-Khaled to take to his GP and attached the relevant Impairment Tables for his GP to consider.

34. Subsequently, Dr Alameddin provided a report dated 24 May 2017 which was essentially an exact copy of his letter of 1 April 2016 apart from some additional paragraphs at the end in which he attempted to provide an assessment of functional impact with respect to the relevant Impairment Tables.

35. Mr Al-Khaled also filed a copy of the relevant Tables which were stamped with Dr Alameddin’s address and annotated with ticks adjacent to various descriptors. I presume that the ticks were added by Dr Alameddin.

36. Two descriptors consistent with no functional impact were ticked in Table 1 (Functions requiring Physical Exertion and Stamina).

37. All the descriptors consistent with both moderate and severe functional impact were ticked Table 2 (Upper Limb Function) with a note that indicated that the impact on function was restricted to the left arm.

38. Several descriptors consistent with mild and moderate functional impact were ticked in Table 3 (Lower Limb Function) with a note that the impact on function was restricted to the left leg.

39. Dr Alameddin provided no additional information with regard to the meaning of the ticks.

    Other evidence

40. In a Job Capacity Assessment (JCA) Report JCA report submitted on 1 July 2016, the assessor noted, inter alia, the following:

    The client reported that he always experiences some level of headache and exacerbation 2-3 times per week for about 3 hours during which time he sleeps … when he is not experiencing exacerbation he is able to undertake light household duties and go fishing with his friends.

    …

    The client reported that he can walk for 7-8 minutes and can walk for another 7-8 minutes after a short break. He reported that he can stand for 10 minutes with his weight mostly on his right leg. He reported difficulty with stairs and can climb a maximum of 10 steps. He reported that he is able to drive for 30-60 minutes

    …

    he was able to travel to Lebanon 12 months ago prior to the assessment and travel independently for 7 months. Client reported he required some assistance to alight from the aircraft.

    …

    During the assessment on 17/6/16 the client was observed by the assessor to be able to turn the door handle of the interview room door with his right hand with nil difficulties or assistance required, was observed to hold a folder with a minimum of 10 documents inside with his right hand and was observed to turn multiple pages of a book with his right hand.

41. Centrelink records indicate that Mr Al-Khaled was overseas from 8 July 2015 to 15 February 2016. At the hearing Mr Al-Khaled confirmed that he had travelled independently. The records also indicate that Mr Al-Khaled had travelled overseas at least once every year between 2011 and 2015.

42. In the decision of AAT1, the Member stated, inter alia, the following:

    Mr Al Khaled’s evidence at the hearing was that he is able to walk around a supermarket with rests and walks from a carpark close to the entrance of the supermarket into the supermarket. Mr Al Khaled stated that he would not use public transport, predominantly because he does not speak English and stated that he is able to fold and put away washing.

    …

    Mr Al Khaled advised the tribunal that he handles, carries and moves items with his right hand.

43. In a Home and Independent Living Assessment Report dated 18 October 2016 Fida Hajaj, occupational therapist, stated inter alia the following:

    Mr Al-Khaled is independent in all mobility around his home and local community. He is unable to walk long distances (100m+) due to poor strength, balance and endurance.

    …

    is able to independently transfer in and out of his bed at times

    …

    is independent to transfer on/off the toilet with use of rail

    …

    is independent in showering when at his brother’s home as they have a hob less shower recess … Overall Mr Al-Khaled requires minimal assistance in showering and dressing.

    LUMBAR SPINE CONDITION

    Medical evidence

44. In her report of 25 June 2010 Dr Harvey-Sutton noted that that Mr Al-Khaled said that he “has had back pain for a long time” and that when he was in Lebanon in 2008 he had “very bad back pain and could not walk because of the pain”. An operation was performed on his back which “improved the pain and he can now walk”. Mr Al-Khaled said that if he “walks for long periods or stands for prolonged or sits for prolonged periods, there is aggravation of the pains”.

45. In his report of 13 February 2014 Dr Alameddin stated that Mr Al-Khaled suffered “discopathy of L5/S1, laminectomy” which causes “chronic back pain”. He noted that Mr Al-Khaled “goes walking as his physical daily activity”.

46. In his report 13 January 2015 Dr Hanna stated Mr Al-Khaled suffers chronic lower back pain because of multi-level lumbar disc abnormalities. He noted impact on ability to function as “The pt is rendered disadvantage and is not possible to maintain performance of job task due to increasing severity of”. [sic]

47. Dr Hanna did not provide any other details which would assist in an assessment under the Impairment Tables.

48. In his report of 20 April 2015 Dr Alameddin lists “discopathy L5/S1” as a medical condition that is generally well managed and causes minimal or limited impact on ability to function.

49. In his report of 1 April 2016 Dr Alameddin stated that Mr Al-Khaled reported that “his neck pain and lower back pain over the last few months have been building up progressively and that are affecting the course of his duty as a Labourer” and that the lower back pain was a “major problem in his daily living”. [emphasis added]

50. Dr Alameddin did not provide any other details which would assist in an assessment under the Impairment Tables

51. At the hearing Mr Al-Khaled was unable to explain Dr Alameddin’s reference to “duty as a Labourer”.

52. In the copy of Impairment Table 4 (Spinal Function) annotated by Dr Alameddin all the descriptors for “no functional impact”, two of the descriptors for “mild functional impact” and one of the descriptors for “moderate functional impact” were ticked with no additional explanation.

    MENTAL HEALTH CONDITION

    Medical evidence

53. In her letter of 25 June 2010 Dr Harvey-Sutton lists “Depression” as one of Mr Al-Khaled’s medical conditions but provides no other relevant details.

54. In his report of 13 February 2014 Dr Alameddin noted that Mr Al-Khaled reported that he was “becoming depressed” and attributed his depressed state to the physical restrictions caused by his “spastic hemiplegia” and chronic pain. He added that Mr Al-Khaled’s depression had “become chronic without period of remission and has gradually worsened overtime” [sic] and had been particularly bad “over the last six months”.

55. Dr Alameddin stated that Mr Al-Khaled suffered from “major depression” and that his medications included “Escitolopran 20mg”, an antidepressant. He did not indicate who made the diagnosis, when the diagnosis was made, who had prescribed the medication or how long Mr Al–Khaled had been taking this medication.

56. In his report of 13 January 2015 Dr Hanna listed “mild to moderate depression” as a medical condition that was generally well managed and that causes minimal or limited impact on ability to function. He added “counselling to be attempted” but provided no other relevant details.

57. In his report of 20 April 2015 Dr Alameddin listed “major depression” as a medical condition with significant functional impact. He stated that current treatment included counselling, cognitive behaviour therapy and Escitolopran 20 mg but did not indicate when any of the treatments were commenced, who provided the treatment or for how long the treatment had been undertaken.

58. In his report of 1 April 2016 Dr Alameddin stated that Mr Al-Khaled suffers from “Major Depression” but also noted that Mr Al-Khaled “recently reports becoming very depressed and anxious particularly when his pain is not relieved by any medication”. [emphasis added]

59. Dr Alameddin noted that treatment included counselling, anxiolytic tablets and Escitolopran 20 mg. He also stated that “patient went under care of a psychologist and psychiatrist for further treatment and counselling” but provided no relevant details.

60. In a relatively brief letter dated 19 September 2016 Dr Abu-Arab stated that Mr Al-Khaled had been referred on a Mental Health Care Plan and had been involved in a Cognitive Behavioural Program during six consultations.

61. Dr Abu-Arab expressed the opinion that Mr Al-Khaled suffers from Major Depression but, in my view, did not provide convincing reasons to support that diagnosis. Also, he did not indicate when the six consultations occurred and provided no meaningful assessment of the impact on ability to function because of this condition. He added, however, that Mr Al-Khaled was “keen to participate in treatment”.

62. In a letter dated 24 November 2016, which was essentially the same as the earlier letter, Dr Abu-Arab noted that he had seen Mr Al-Khaled for ten consultations.

63. In his report of 24 May 2017, which as noted above was essentially the same the earlier report in 2016, Dr Alameddin confirmed the diagnosis of “Major Depression”. He again stated that “patient went under care of a psychologist and psychiatrist for further treatment and counselling” but provided no other details.

    CONSIDERATION

64. It is clear from the available evidence that Mr Al-Khaled has suffered significant impairment because of his congenital left-sided hemiparesis and lumbar spine condition. What is not so clear is the level of severity of the functional impact of these conditions at the date of claim and during the claim period.

65. The weight of the evidence, which is largely dependent on Mr Al-Khaled’s self-report of symptoms, suggests a mild to moderate impact on ability to function during the claim period.

66. This would be consistent with the fact that Mr Al-Khaled was able to independently travel to Lebanon on 8 July 2015 and more than seven months later independently return to Australia on 15 February 2016, about two and a half months prior to the date of claim.

67. Furthermore, the corroborative evidence on which Mr Al-Khaled relies is, in my view, incomplete, somewhat inconsistent and does not adequately address the descriptors in the relevant Impairment Tables.

68. Notwithstanding the difficulties with the corroborative evidence, I accept that, for present purposes, the ratings under the relevant Impairment Tables submitted by the Respondent could be considered as reasonably consistent with the available evidence.

69. The threshold question, however, is whether there is evidence to support a conclusion that at the date of claim or during the claim period Mr Al-Khaled suffered “severe” functional impairment in accordance with Impairment Tables 1, 2 or 3.

70. The only evidence to support such a conclusion is the annotated copy of Impairment Table 2 provided by Dr Alameddin.

71. Dr Alameddin has placed a tick against all of the descriptors in the severe functional impact rating with reference to the left arm. It would appear that Dr Alameddin has not understood that the question, as to whether there has been a severe functional impact on activities using hands and arms, applies “to the person” and not to a single upper limb.

1. He has also ignored the fact that Mr Al-Khaled’s dominant right limb appears to function normally and that the evidence clearly indicates that Mr Al-Khaled has successfully managed many activities with his right arm and hand.

2. I find Dr Alameddin’s approach of annotating the Tables with ticks, without explanation, to be dismissive and demonstrates, in my view, a lack of appreciation of the importance of a proper assessment of impact on ability to function in the support of a claim for DSP.

3. I have decided to place little weight on this aspect of Dr Alameddin’s evidence.

4. After consideration of all the available evidence I am satisfied there is no reliable evidence to support a conclusion that, at the date of claim or during the claim period, Mr Al-Khaled suffered a “severe” impairment within the meaning of the Act, under Impairment Tables 1,2 or 3.

5. The issue with respect to the diagnosis and treatment of Mr Al-Khaled’s claimed condition of “Major Depression” is, in my view, problematic. The medical evidence with respect to this condition can at best be described as incomplete and confused.

6. In his report of 13 February 2014 Dr Alameddin stated that Mr Al-Khaled suffers from “Major Depression” but provides no information with regard to diagnosis or treatment apart from the fact that he has been taking antidepressant medication for some time.

7. In his report of 13 January 2015 Dr Hanna stated that that Mr Al-Khaled suffered “mild to moderate depression” and noted that counselling is “to be attempted”.

8. In two essentially identical reports dated 1 April 2016 and 24 May 2017 Dr Alameddin stated that Mr Al-Khaled suffered from “Major Depression” and “went under care of a psychologist and psychiatrist for further treatment and counselling” but provides no relevant details.

9. Dr Abu-Arab in his letter dated 19 September 2016 confirmed a diagnosis of “Major Depression” and indicated that he saw Mr Al-Khaled for six consultations but did not indicate when these consultations started. In his almost identical letter of 24 November 2016, three months after the end of the claim period, Dr Abu-Arab stated that he had seen Mr Al-Khaled for ten consultations clearly suggesting that treatment had started recently and was ongoing.

10. Therefore, on consideration of the available evidence I am not persuaded that that the diagnosis of “Major Depression” was confirmed by a psychiatrist or clinical psychologist, in accordance with the requirements of Impairment Table 5, prior to the date of claim. It is possible that the diagnosis of the condition was confirmed by Dr Abu-Arab during the claim period.

11. Furthermore, it appears that for several years the only treatment received by Mr Al-Khaled was an unchanged dose of the same antidepressant medication. There is no evidence that his treatment was reviewed or supervised by a clinical psychologist or psychiatrist prior to the date of the claim.

12. On the available evidence I am not persuaded that Mr Al-Khaled’s claimed mental health condition was fully treated and fully stabilised before the date of claim or during the claim period.

13. Therefore, I am satisfied that, during the claim period, Mr Al-Khaled did not have a “severe impairment” within the meaning of the Act. This means a rating of 20 points under a single Impairment Table cannot be assigned and, as Mr Al-Khaled had not actively participated in a POS, he did not satisfy s 94(1)(c) of the Act and did not qualify for DSP.

    DECISION

14. For reasons set out above, the Tribunal is satisfied that, during the claim period, Mr Al-Khaled did not satisfy s 94(1)(c) of the Act and did not qualify DSP.

15. The decision under review is affirmed.

I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

...............[sgd].........................................................

Associate

Dated: 8 August 2017

Date(s) of hearing:	21 July 2017
Applicant:	In person
Solicitors for the Respondent:	Ms B Salaji, Department of Human Services