Al Shamri; Secretary, Department of Social Services and (Social services second review)

[2016] AATA 566

Al Shamri; Secretary, Department of Social Services and (Social services second review) [2016] AATA 566 (2 August 2016)

Division	GENERAL DIVISION
File Number(s)	2015/5384
Re	Secretary, Department of Social Services
APPLICANT
And	Ali Al Shamri
RESPONDENT

DECISION

Tribunal	Dr I Alexander, Member
Date	2 August 2016
Place	Sydney

The decision under review is set aside and substituted with a decision that on 30 April 2015 the Respondent did not have an impairment rating of 20 points or more under the Impairment Tables so that he did not satisfy s 94(1)(b) of the Social Security Act 1991 (Cth) and did not qualify for Disability Support Pension.

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

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation of payment – time of cancellation – whether medical conditions were fully diagnosed, treated and stabilised – impairment rating of less than 20 points – decision under review set aside and substituted

LEGISLATION

Social Security Act 1991 (Cth), s 94(1)

Social Security (Administration) Act 1999 (Cth), ss 80, 118(13)

SECONDARY MATERIALS

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

REASONS FOR DECISION

Dr I Alexander, Member

2 August 2016

1. Mr Al Shamri, who is now 34 years old, was granted Disability Support Pension (DSP) from 23 September 2008 on the basis that he suffered severe impairment because of a mental health condition, namely schizophrenia.

2. On 8 December 2014 Mr Al Shamri was selected for review of his ongoing DSP entitlement and was asked to provide a Medical Review DSP form.

3. In a Medical Review DSP form dated 14 February 2015 Dr Emin, GP, noted that Mr Al Shamri suffered impairment arising from the conditions of “depression/schizophrenia” and “back pain & L shoulder pain”.

4. In a Job Capacity Assessment Report (JCA) submitted on 9 April 2015, the assessor considered that Mr Al Shamri’s medical conditions were not fully diagnosed, treated and stabilised so that a rating under the Impairment Tables, included in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination), could not be applied.

5. On 30 April 2015 Centrelink wrote to Mr Al Shamri to inform him that his DSP had been cancelled because he did not have a rating of 20 points or more under the Impairment Tables.

6. On 5 May 2015, on internal review, an Authorised Review Officer (ARO) affirmed the earlier Centrelink decision.

7. On 10 September 2015 the Social Services & Child Support Division (SSCSD) of the Administrative Appeals Tribunal set aside the ARO’s decision and found that Mr Al Shamri’s “schizophrenia” was fully diagnosed, treated and stabilised, had a rating of 20 points under the Impairment Tables and that he therefore qualified for DSP.

8. In these proceedings the Secretary seeks review of the SSCSD’s decision.

9. At the hearing Mr Al Shamri, who was self-represented, was assisted by an interpreter of the Arabic language.

   ISSUES

10. The power to cancel Mr Al Shamri’s DSP is provided by section 80 of the Social Security (Administration) Act 1999 (the Administration Act) which provides that if the Secretary is satisfied that a social security payment is being paid to a person who is not qualified for the payment “the Secretary is to determine that the payment is to be cancelled or suspended”.

11. The decision to cancel Mr Al Shamri’s DSP is an “adverse determination” within the meaning of s 118(13) of the Administration Act which provides that such a decision takes effect “on the day on which it is made”.

12. It follows that in order to qualify for DSP Mr Al Shamri must satisfy the requirements of s 94 of the Social Security Act 1991 (the Act) as at 30 April 2015, which was the date on which Centrelink cancelled his DSP (time of cancellation).

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

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

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

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

14. It is agreed that, at the time of cancellation, Mr Al Shamri suffered medical conditions that caused impairment and he therefore satisfied s 94(1)(a) of the Act.

15. The relevant medical conditions are “schizophrenia/depression” and “back and shoulder pain”.

16. 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)).

17. 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

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

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

19. 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)”.

20. The Secretary contends that, at the time of cancellation, none of Mr Al Shamri’s impairments were permanent for the purposes of the Impairment Determination so that a rating under the Impairment Tables could not be assigned and, therefore, he did not satisfy s 94(1)(b) of the Act.

21. In particular, the Secretary contends that the mental health condition, although fully diagnosed, was not fully treated and not fully stabilised so that a rating under Impairment Table 5 could not be assigned.

22. It follows that the determinative issue in this review is whether, at the time of cancellation, Mr Al Shamri suffered an impairment of 20 points or more under the Impairment Tables and, if so, whether he had a “continuing inability to work”.

    MENTAL HEALTH CONDITION

23. Mr Al Shamri told the Tribunal that he had suffered from his mental health condition for many years but was unable to remember when it was first diagnosed. He said that, initially, he was treated with prescribed medication but decided to stop taking this medication because it was not helping his symptoms. Instead, he had self-medicated for several years with regular ice (methamphetamine) and marijuana use, which he claimed helped to control his symptoms. More recently he has stopped taking these illicit drugs because of strong advice from his current treating psychiatrist, Dr Chaudhary, and an ultimatum from his wife. He said that he has not used ice for more than six months and marijuana for about three months.

24. Mr Al Shamri conceded that he had not taken any prescribed medication between September 2008 and December 2014, as confirmed by his Medicare PBS database records.  Medication was restarted by his GP on 31 December 2014 after Mr Al Shamri was notified that he had been selected for medical review. He also conceded that between June 2009 and April 2015 he had not been seen by a psychiatrist or had any psychological treatment, also confirmed by his Medicare attendance history.

    MEDICAL EVIDENCE

25. In a Centrelink Medical Report dated 12 September 2008 Dr Attia-Soliman, GP, notes that Mr Al Shamri has a long history of chronic schizophrenia and chronic depression and that he is “usually compliant” with current medication “Invega (paliperidone) and Efexor”.

26. In a Centrelink Medical Review DSP form dated 14 February 2015 Dr Emin, GP, lists “depression/ schizophrenia” as a medical condition with most impact, notes past treatment as “nil” and current treatment as “Efexor 150mg, Epilim 500mg and Zyprexa 5mg”.

27. In an undated Centrelink Medical Report, received on 23 July 2015, Dr Chaudhary, psychiatrist, states that Mr Al Shamri has been his patient since 15 April 2015 and lists “schizo-affective disorder” and “depression” as medical conditions with most impact.  Past treatment is described as “nil known” and current treatment as “Zyprexa 10mg tds, Efexor 150mg bd, psychotherapy, CBT and counselling” all of which were commenced on 15 April 2015.

28. In a letter dated 14 December 2015 Dr Chaudhary confirms diagnoses of “schizophrenia probably drug induced” and “depression” and states that the conditions are fully diagnosed, treated and stabilised.

29. Dr Chaudhary attended the hearing by telephone and told the Tribunal that since 15 April 2015 Mr Al Shamri has been attending regularly and is now compliant with increased doses of medication. In response to a question from the Tribunal, Dr Chaudhary explained that his stated opinion that the conditions are now fully treated and stabilised refers to the current situation and not to the period prior to 15 April 2015. He agreed that, during the period when Mr Al Shamri was self-medicating with illicit drugs, his mental health conditions could not be seen as being fully treated and fully stabilised. He also agreed that the illicit drugs probably had an adverse effect on the conditions.

30. In a fairly comprehensive report dated 9 March 2016 Dr Abeya, psychiatrist, expresses the opinion that as at 30 April 2015 Mr Al Shamri did have a mental health condition with the best descriptor with reference to DSM-5, being “schizoaffective disorder”.

31. In response to a schedule of questions Dr Abeya notes, inter alia, the following:

    “Mr Al Shamri has seen a psychiatrist since around 2006 when he was initially diagnosed and was commenced on an antipsychotic (Zyprexa), antidepressant (venlafaxine) and mood stabiliser (sodium valproate). He was then changed to a different antipsychotic paliperidone. Yet his compliance appears to have been poor and he had then been entirely off medication between 2010 and 2014 with no evidence of follow-up at that time…Given Mr Al Shamri’s history and all available evidence it does not appear that he has been fully compliant with recommended treatment. His previous psychiatrist’s report too indicates that he is “usually compliant” rather than very compliant. Mr Al Shamri himself was quite honest in stating that he was entirely off medication from his assertion between 2010 and 2014 …his initial psychiatrist appears to have treated him optimally ….Yet the issue appears to have been his compliance as well as his use of cannabis and amphetamines which would have perpetuated any existing symptoms. In addition his lack of any treatment between 2010 and 2014 would further indicate that all  appropriate and reasonable treatment had not been undertaken……it is undeniable that both cannabis and amphetamines may have had a role in either causing or possibly perpetuating his psychotic symptoms and further contributing to his mood-related symptoms…..I do believe the condition had been fully diagnosed. I find it difficult to state that it had been fully treated and fully stabilised as at 30 April 2015 considering he had been entirely off medication between 2010 and 2014 and had filled just one prescription of medication in December 2014 prior to his DSP being withdrawn in April 2015…”

    CONSIDERATION

32. I am satisfied that the evidence before the Tribunal supports a conclusion that at the time of cancellation of DSP, Mr Al Shamri’s mental health condition of “schizophrenia/ depression” was fully diagnosed.

33. However, the evidence indicates that for almost six years prior to the time of cancellation, Mr Al Shamri had no treatment for his mental health condition apart from self-medication with illicit drugs, which were likely to have had an adverse impact on his condition.

34. Medicare attendance history indicates that his last consultation with Dr Attia-Soliman was on 25 June 2009 with an item number indicating a “professional attendance by a GP lasting at least 40 minutes”.

35. Medicare PBS records indicate that on 31 December 2014, about three weeks after Mr Al Shamri was notified that he required medical review, his then GP issued a prescription for antipsychotic and antidepressant medication.

36. There is no evidence of any consultations with a psychiatrist until 15 April 2015, about two weeks prior to the date of cancellation of DSP, when Mr Al Shamri consulted Dr Chaudhary for the first time. Dr Chaudhary increased the doses of his antipsychotic and antidepressant medication, saw Mr Al Shamri on a regular basis over the following 12 months, and encouraged him to stop using ice and marijuana.

37. In my view, the evidence before the Tribunal does not support a conclusion that Mr Al Shamri’s mental health condition was fully treated and fully stabilised at the time of cancellation of DSP.

38. It follows that a rating under Impairment Table 5 cannot be assigned.

    OTHER MEDICAL CONDITIONS

39. In the Medical Review dated 14 February 2015, Dr Emin lists “back pain & L shoulder pain” as a medical condition which has a significant functional impact but does not provide a diagnosis for these symptoms. Treatment is noted as “analgesia” and clinical features are described as “cannot do home chores, cannot lift or carry > 5kg, cannot bend”.

40. In the Centrelink Medical Report dated 23 July 2015, Dr Li lists “left shoulder pain, low back pain” as medical conditions that are generally well managed and that cause minimal or limited impact but provides no other details. 

41. Dr Chaudhary in his letter of 14 December 2015 notes the following:

    “He complained of shoulder pains in the left shoulder. He can’t lift this arm above shoulder height. He also complained of spasms in his little and index fingers. He said that these fingers close up and he has to open them with the other hand. I feel that this is some sort of cramps that he is experiencing. He reported no other medical problems”

42. In my view, there is insufficient corroborative evidence to satisfy the Tribunal that, at the time of cancellation of DSP, Mr Al Shamri’s “back pain” and “shoulder pain” was fully diagnosed, fully treated and fully stabilised and therefore a rating under the Impairment Tables cannot be assigned.

    DECISION

43. For reasons set out above the decision under review is set aside and substituted with a decision that on 30 April 2015 Mr Al Shamri did not have an impairment rating of 20 points or more under the Impairment Tables so that he did not satisfy s 94(1)(b) of the Act and did not qualify for DSP. This means that the decision to cancel the DSP was correct.

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member.

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

Associate

Dated 2 August 2016

Date of hearing	4 July 2016
Solicitors for the Applicant	Department of Human Services
Respondent	In person