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

[2016] AATA 392

Al Yasir and Secretary, Department of Social Services (Social services second review) [2016] AATA 392 (15 June 2016)

Division	GENERAL DIVISION
File Number(s)	2015/6098
Re	Miray Al Yasir
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr I Alexander, Member Dr L Bygrave, Member
Date	15 June 2016
Place	Sydney

The Tribunal affirms the decision under review.

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

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension - whether conditions fully diagnosed, treated and stabilised – impairment ratings – continuing inability to work – whether applicant suffered severe functional impact on activities – applicant not found to have a severe impairment within one impairment table –  decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

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

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

REASONS FOR DECISION

Dr I Alexander, Member
Dr L Bygrave, Member

15 June 2016

1. On the 4 May 2015, Ms Al Yasir, who is now 32 years old, lodged a claim for disability support pension (DSP) on the basis that she suffered several medical conditions which were having an impact on her ability to function.

2. The claim was rejected by Centrelink, both initially and on internal review, on the basis that she did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular, she did not satisfy s 94(1)(b) of the Act as her impairment was not 20 points or more under the Impairment Tables.

3. In a decision dated 4 November 2015, the Social Services and Child Support Division (SSCSD) found that Ms Al Yasir’s impairment was not 20 points or more under the Impairment Tables and she did did not qualify for DSP  

4. In these proceedings Ms Al Yasir seeks review of the decision of the SSCSD.

5. At the hearing Ms Al Yasir was self-represented but was assisted by her husband and an interpreter of the Arabic language.

   ISSUES

6. In order to qualify for DSP Ms Al Yasir 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 the requirements of the Social Security (Administration) Act1999 (Cth), that is, between 4 May 2015 and 3 August 2015 (the claim period).

7. Section 94(1) of the Act provides that a person is qualified for disability support pension 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.

8. The Respondent concedes and the Tribunal accepts that Ms Al Yasir suffers medical conditions that cause impairment and, therefore, satisfied s 94(1)(a) of the Act at the time of her claim for DSP.

9. The medical conditions noted in the claim form include a mental health condition, a spine condition, asthma and a thyroid condition.

10. 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)).

11. 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 to persist for more than two years (paragraph 6(4)(d)).

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

13. Also, the Introduction to Table 5 of the 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)”.

14. The Respondent contends that, during the claim period, Ms Al Yasir had a total rating of 0 points under the Impairment Tables and, therefore, had not satisfied 94(1)(b) of the Act.

15. Alternatively, the Respondent contends that, during the claim period, Ms Al Yasir could not satisfy section 94(1)(c) of the Act as she did not have a “continuing inability to work” because she had not actively participated in a POS as required by section 94(2)(aa) of the Act.

16. Section 94(2)(aa) 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 program of support within the meaning of subsection (3C)”.

17. 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.

18. Subsection 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (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.

19. At the hearing it was agreed that Ms Al Yasir had not participated in a POS during the 36 months prior to the date of claim which means that her application for review cannot succeed unless she suffered a “severe impairment” during the claim period.

20. Ms Al Yasir contends that, during the claim period, she suffered a “severe” functional impairment due her mental health condition so that a rating of 20 points under Impairment Table 5 should be applied.

21. It follows that the determinative issue in this matter is whether, during the claim period, Ms Al Yasir suffered an impairment of 20 points or more under the Impairment Tables and, in particular, whether any of her medical conditions warranted a rating of 20 points or more under a single Table.

    MENTAL HEALTH FUNCTION

22. At the hearing Ms Al Yasir presented as being very anxious with a somewhat flat affect. She had difficulty in answering questions and frequently deferred to her husband to provide specific details.

23. Ms Al Yasir told the Tribunal that for about the last 12 months she had been living alone in a three-bedroom housing commission house with four of her children, who were aged between 13 and 3 years. She said that during this period her mental health condition had deteriorated and that she had been unable to care for herself or her children.  She relies on her husband, who is living elsewhere, to attend every day and to assist with her care and the care of the children as well as to provide domestic support with cleaning, washing cooking and shopping.

24. In the course of the hearing Ms Al Yasir revealed that during the claim period she had become pregnant but had been unaware of the pregnancy until about August/ September 2015. The baby was born in March 2016 and has been in the care of her father since birth with apparently no contribution by Ms Al Yasir.

    Mr Al Yasir’s Evidence       

25. At the hearing Mr Al Yasir told the Tribunal that he would come to Ms Al Yasir’s house every morning and on schooldays would take the older children to school. He would return and prepare breakfast for his wife, administer her medication and assist with various domestic activities. In the evening he would return to his own home. Also he confirmed that he is the fulltime carer for his three-month old daughter.

26. Mr Al Yasir told the Tribunal that his wife’s mental health had started to deteriorate in early 2015 prior to her pregnancy and had deteriorated further during the pregnancy particularly after the baby was born. He said that she had seen her psychiatrist, Dr Saker on four occasions during 2015 the last being time being in November 2015. He explained that Dr Saker left his practice and that Ms Al Yasir has an appointment to see a new psychiatrist.

    Medical evidence 

27. In a letter dated 6 September 2013 Dr Alameddin, GP, noted, inter alia, that Ms Al Yasir suffers “depression, chronic anxiety disorder” and is being treated with Zoloft (sertraline) at at a dose 50mg per day.

28. In a Management Plan dated 11 November 2013 Dr Saker, psychiatrist, made a diagnosis of “Major depressive disorder with anxiety and psychotic features” and recommended an increase in the dose of sertraline to 100 mg in the morning and prescribed Pericyazine 5 mg at night. He also recommended 6 sessions of Cognitive Behavioural Therapy.

29. In a letter dated 17 December 2013 Dr Saker noted that Ms Al Yasir “is looking after her children properly but has memory and concentration difficulties” and has “ongoing visual hallucination and night terrors”. He recommended an increase in the dose of Pericyazine to 10mg at night and an increase of the dose of sertraline to 150 mg at night.

30. In a letter dated 28 August 2014 Dr Saker stated that Ms Al Yasir was taking sertraline 200 mg in the morning and pericyazine 10 mg at night and noted, inter alia, the following:

    she is only sleeping 1 hour at night…she presented today neatly dressed. She had  flat affect…she described ongoing visual hallucinations. Her insight and judgement were good…she needs additional childcare for her children (up to 50 hours) as she is not coping secondary to depressed mood and psychosis…

31. Dr Saker recommended an increase in the dose of Pericyazine to 20 mg at night.

32. In a letter dated 19 August 2014 Dr Alameddin stated that Ms Al Yasir suffers from “Depression, chronic anxiety disorder” and that her current treatment includes Zoloft 200mg. He noted that she “enjoys socialising with her family and friends” and “likes to walk as part of her physical exercise”.

33. In a letter dated 21 October 2014 Dr Saker stated that Ms Al Yasir “is currently taking Sertraline 300mg in the morning and Pericyazine 40mg at night. She still has visual hallucinations of shadows and auditory hallucinations …her mood remains “depressed and anxious”. He expressed the opinion that Ms Al Yasir is now on what can be considered “maximal doses of her medication”, that condition could be considered “treatment resistant” and that she is unlikely to be able to return to work “within the next 2 years and probably longer” because of her mental health condition alone.

34. In a report dated 10 December 2014 Dr Saker stated that he has seen Ms Al Yasir on 7 occasions between November 2013 and December 2014 and noted, inter alia, the following:

    she has taken sertraline up to the maximum dose (300mg) and high dose antipsychotic medication…she attended 1 psychology session but did not like the psychologist…her children are in child-care 1-2 days per week…she functions minimally the rest of the time to care for them…her eldest daughter is 13 and helps care for the other children…she functions minimally with her home duties but is not capable of anything beyond this…

35. In a Centrelink Medical report dated 30 April 2015 Dr Saker listed “major depressive disorder, severe, treatment resistant with psychotic symptoms” as the medical condition with most impact and noted current treatment as “sertraline 500mg in the morning, benztropine 2mg daily, pericyazine 30mg in the night.” He described impact on ability to function as “Her memory and concentration are very bad. Her decision making is poor. Her daughters do the shopping, house work and cooking”.

36. In a Centrelink Medical report dated 1 May 2015 Dr Alameddin listed “major depression” as medical condition with most impact and described impact on ability to function as “it affects patient’s ability to work” but provided no other relevant details.

37. In a letter to Dr Alameddin dated 29 October 2015 Dr Saker stated, inter alia, the following:

    Many thanks for referring this 32 years old, who I reviewed at the Bankstown clinic today. She continues to take Sertraline 200 mg in the morning and Pericyazine 30 mg at night…she presented today neatly dressed. She had a flat affect. Her mood was ‘very sad’. She had no formal thought disorder. She described ?hypagogic [sic] hallucinations at night. Her judgment and insight were good… I have asked her to increase her Pericyazine to 40mg at night…She has Major Depressive Disorder with Psychotic Features which is treatment resistant despite maximal doses of antidepressant and antipsychotic medication…He[sic] conditions are fully diagnosed, treated and stabilised. She can not increase her doses of medication higher. My view is that her mental health condition will continue to impair her function and ability to work for more than 2 years…She has severe functional impact and frequently has symptoms which prevent her from doing light house-hold tasks. She is incapable of 3 hours of sedentary work …she night [sic] benefit from referral to Campbelltown Community Mental Health Team.”

38. The Tribunal was provided with a report prepared by Dr Armstrong, Medical Adviser, Health Professional Advisory Unit, who no contact with Ms Al Yasir and based her report on relevant documents and reports alone.

39. In her report, dated 12 April 2016, Dr Armstrong stated that on 11 April 2016 she contacted Ms Al Yasir’s GP, Dr Alameddin, by telephone and records part of the of the conversation as follows:

    …Dr Alameddin said that her major depression was very severe and she was on ‘strong antidepressants’ and he would have to refer her to a new psychiatrist, as Dr Saker had relocated……is currently prescribed 250 mg Zoloft and 10 mg Pericyazine. Dr Alameddin was aware of her recent pregnancy and said that she has a very large family and a husband, with a very busy hectic life. He thought she could do her housework, can travel on her own, she is ‘very friendly’ and asks him for help with decisions. At present Dr Alameddin thought she was unable to work, but was not sure about the future…

40. Dr Armstrong stated that she tried to contact Dr Saker but was unsuccessful.  On review of the various documents and reports, she expressed the opinion that during the claim period Ms Al Yasir’s condition of “major depression with psychotic features” was not fully treated and stabilised. She based her opinion on the fact that Ms Al Yasir’s treatment was not consistent with evidence-based RANZP guidelines, in that, she had not had an adequate course of psychotherapy and had not had a proper trial of alternative antidepressant medications.

41. In a supplementary report, dated 12 May 2016, after having reviewed relevant Medicare PBS records, Dr Armstrong noted that, during the claim period, there was significant inconsistency between amount of dispensed medication provided to Ms Al Yasir and the doses of medication she was purported to be taking. Dr Armstrong concluded that during the claim period Ms Al Yasir was probably not compliant with her medication.

    Job Capacity Assessment (JCA) Report

42. In a JCA report submitted on the 6 July 2015 the assessor noted, inter alia, the following:

    The client reported she is unable to control herself, when she is upset she feels like she wants to break everything. She noted that she doesn’t like being around other people, she doesn’t want to speak to anyone and can’t go anywhere…reported sleeping difficulties…concentration difficulties, poor memory and no social contact…she feels fearful all the time ….is able to complete her self -care independently although she needs someone at home with her, her daughters complete all cooking and cleaning ( with her ex-husbands assistance) and her daughters go shopping with her…

    Consideration

43. The evidence with respect to Ms Al Yasir’s mental health condition is, in our view problematic, in that there are issues with respect to the adequacy of treatment, inconsistency in the documents with regard to medications, doses and concerns about her with treatment.

44. The Respondent concedes and the Tribunal accepts that, during the claim period, Ms Al Yasir’s mental health condition was fully diagnosed.

45. The Respondent contends, however, that during the claim period, Ms Al Yasir’s mental health condition was not fully treated and fully stabilised and relies on the opinion of Dr Armstrong.

46. Paragraph 6(a) of the Impairment determination provides that a condition is fully stabilised if a “person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years”.

47. In our view “reasonable treatment” does not necessarily mean the “highest standard of treatment”.

48. We accept Dr Saker’s treatment was not consistent with the RANZCP guidelines, however he is a registered consultant psychiatrist who had treated Ms Al Yasir for about two years. In his letter of October 2015 he clearly expressed his opinion that Ms Al Yasir was “treatment resistant despite maximal doses of antidepressant and antipsychotic medication” and that her condition was fully treated and stabilised.

49. In our view it would be unreasonable to penalise Ms Al Yasir for any presumed shortcomings in Dr Saker’s approach to her treatment. It follows that we are satisfied that for present purposes Ms Al Yasir’s treatment had been reasonable and that at time of her application for DSP her mental health condition was fully treated and fully stabilised.

50. We note, that the evidence before the Tribunal suggests, that during the last twelve months Ms Al Yasir’s mental health condition appears to have deteriorated, particularly after the birth of her fifth child. Nevertheless, we are satisfied that, during the claim period, Ms Al Yasir’s mental health condition was permanent for the purposes of the Impairment Determination.

51. Ms Al Yasir contends that during the claim period she suffered “severe impairment” because of her mental health condition.

52. Although we accept that, during the claim period, Ms Al Yasir suffered impairment caused by her mental health condition we note that there is little corroborative evidence before the Tribunal to support her contention.  

53. Ms Al Yasir’s self-report of symptoms and the oral evidence of her husband does suggest that she currently suffers severe impairment with respect to activities of mental health function. This may be consistent with a deterioration in her condition associated with her recent pregnancy.

54. However, we are not satisfied that the available corroborative evidence supports a conclusion that, during the claim period, Ms Al Yasir suffered a “severe” functional impact on activities of mental health function, as defined by the Impairment Tables.

55. At best, the limited corroborative evidence tends to suggest a mild or moderate functional impact on activities of mental health function, so that, a rating of no greater than 10 points under Impairment Table 5 could be applied.

    SPINE CONDITION

56. Ms Al Yasir contends that she suffers impairment because of “disc problems” in her lumbar spine.

57. A CT of the lumbar spine performed on 20 April 2012 is reported as showing “Mild annulus bulging in the lower lumbar spine, most marked at L4/5. No disc herniation or nerve root compromise. No other abnormality of significance”.

58. A CT scan of the cervical and lumbar spine performed on the 23 July 2013 is reported as being within normal limits with no evidence of disc abnormality or degenerative change.

59. On 6 September 2013, in response to a request from a solicitor, Dr Alameddin provided a report in which he stated that Ms Al Yasir presented on 26 March 2013 complaining of lower back and neck pain following a motor vehicle accident on the 28 February 2013.  He provided a “Locomotor System Examination” and concluded that Ms Al Yasir  “suffers from chronic lower back pain due to discopathy lumbo sacral spine L5/S1 that has been complicated by a motor vehicle accident and cervical spine pain due to whiplash injury”.

1. We note that Dr Alameddin did not provide an explanation for his diagnosis of “discopathy” in the face of a normal CT scan or any details with respect to functional impairment.  Also, it is not clear from the report whether his locomotor examination was performed in March 2013 or in September 2013.

2. A CT scan of the lumbar spine performed on 5 June 2014 is reported as showing “[a]t L5/S1 there is a shallow broad based herniated nucleus pulposus mildly impacting the left S1 nerve root. No other significant intrathecal or extradural abnormality was identified”. 

3. In his letter of 19 August 2014 Dr Alameddin stated that Ms Al Yasir reports having “pain perception in her back and neck since her last motor vehicle accident that occurred on the 28.02 .2013”. The pain is reported to be “chronic without period of remission” and is made worse by “sitting, walking and pushing activities”.

4. Dr Alameddin provided a “Locomotor System Examination” which appears to be identical to the examination reported in September 2013. In our view this raises concerns about the reliability of this examination with regard the claim period.

5. Furthermore, Dr Alameddin does not provide a satisfactory assessment of the functional impact of Ms Al Yasir’s spine condition but does repeat his previous comment that she “enjoys socialising with her family and friends” and “likes to walk as part of her physical exercise”.

6. In his Centrelink Medical report of 1 May 2015 Dr Alameddin listed “severe discopathy L5/ S1” as a medical condition that causes significant functional impact. He described impact on ability to function as “back pain affects the patient ability to concentrate and look after family” but provides no other details.

7. In her report of 12 April 2016, Dr Armstrong noted that in their telephone conversation Dr Alameddin said Ms Al Yasir back pain was “pretty severe” and that “she would probably have difficulty bending to knee level” but conceded that a “functional capacity evaluation would be needed to confirm this”.

   Consideration

8. The evidence with respect to Ms Al Yasir’s spine condition, in our view, can best be described as incomplete and inconsistent.

9. We note that the claimed severity of her symptoms and Dr Alameddin’s diagnosis of “severe discopathy” is inconsistent with the radiological investigations.

10. On consideration of the limited available evidence we are not satisfied that, during the claim period, Ms Al Yasir’s spine condition was fully diagnosed, fully treated and fully stabilised so that  a rating under the Impairment Tables cannot be applied.

    OTHER MEDICAL CONDITIONS

11. There is no dispute that during the claim period Ms Al Yasir’s asthma and hypothyroidism were permanent for the purposes of the Impairment Determination.

12. In the two Centrelink Medical reports dated 4 October 2014 and 1 September 2015 Dr Alameddin indicated that these conditions were generally well managed and cause minimal or limited impact.

13. There is no other evidence to suggest that, during the claim period, Ms Al Yasir suffered any functional impact because of either of these conditions, therefore, we are satisfied that a rating of 0 points under the Impairment Tables would apply.

    DECISION

14. For reasons set above we are satisfied that during the claim period, Ms Al Yasir’s impairment was not 20 points or more under the Impairment Tables so that she did not satisfy s 94(1b) of the Act and did not qualify for DSP.

I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member and Dr L Bygrave, Member

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

Associate

Dated 15 June 2016

Date(s) of hearing	3 June 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services