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

[2016] AATA 683

Drake and Secretary, Department of Social Services (Social services second review) [2016] AATA 683 (6 September 2016)

Division	GENERAL DIVISION
File Number(s)	2016/0921
Re	John Drake
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr I Alexander, Member
Date	6 September 2016
Place	Sydney

The decision under review is affirmed.

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

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – application rejected by Centrelink – whether applicant suffers an impairment – whether impairment is fully diagnosed, treated and stabilised – impairment tables – heart condition permanent – heart condition awarded 10 points under Impairment Table 1 – no evidence of depression and chronic sinusitis – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act1999 (Cth)

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

6 September 2016

1. On 25 August 2015 Mr Drake, who is currently 65 years old, lodged a claim for disability support pension (DSP) on the basis that he suffered medical conditions which were having an impact on his ability to function.

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

3. In a decision dated 9 February 2016, the Social Services & Child Support Division (SSCSD) of the Administrative Appeals Tribunal found that Mr Drake had a total rating of 10 points under Impairment Table 1 so that he did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.

4. In this review, which is being done on the papers alone, Mr Drake seeks review of the decision of the SSCSD.

   ISSUES

5. In order to qualify for DSP, Mr Drake 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 25 August 2015 and 24 November 2015 (the claim period).

6. 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.

7. The Respondent concedes and the Tribunal accepts that Mr Drake suffers medical conditions that cause impairment and, therefore, satisfied s 94(1)(a) of the Act at the time of his claim for DSP.

8. In the claim form Mr Drake lists “Heart/Depression/Chronic Sinusitis” current medical conditions.

9. 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)).

10. 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)).

11. 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”.

12. 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)”.

13. The Respondent accepts that Mr Drake suffers from a heart condition and that the condition is permanent for the purposes of the Impairment Determination.

14. Mr Drake contends that his heart condition has a severe functional impact on his activities requiring physical exertion or stamina and that a rating of 20 points under Impairment Table 1 should be assigned.

15. The Respondent contends that, during the claim period, Mr Drake’s heart condition had a moderate functional impact on activities requiring physical exertion or stamina so that a rating of 10 points under Impairment Table 1 can be assigned.

16. With respect to the conditions of “depression” and “chronic sinusitis” the Respondent contends that these conditions are not fully diagnosed so that a rating under the Impairment Tables cannot be assigned.

17. Therefore, the Respondent contends that, during the claim period. Mr Drake did not have an impairment of 20 points or more under the Impairment Tables and did not satisfy s 94(1)(b) of the Act.

18. Alternatively, the Respondent contends that, during the claim period, Mr Drake could not satisfy section 94(1)(c) of the Act as he did not have a “continuing inability to work” because he had not actively participated in a program of support (POS) as required by s 94(2)(aa) of the Act.

19. 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 POS within the meaning of subsection (3C)”.

20. 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.

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

22. The Respondent contends that Centrelink records indicate the Mr Drake had actively participated in a POS for only 6 months during the 36 months prior to the date of claim which means that his application for review cannot succeed unless he suffered a “severe impairment” during the claim period.

23. It follows that the determinative issue in this matter is whether, during the claim period, Mr Drake suffered an impairment of 20 points or more under the Impairment Tables and, in particular, whether any of his impairments warranted a rating of 20 points or more under a single Impairment Table.

    HEART CONDITION

    Mr Drake’s evidence

24. Mr Drake has provided numerous letters in support of his claim. In these letters he claims that he suffers frequent episodes of low blood pressure as a result of his heart condition. He states that these episodes are unpredictable, can last for several hours and are associated with various symptoms including dizziness and headaches.

25. Mr Drake also attempts to make his own assessment of a rating under the Impairment Tables and claims that he is entitled to an assessment of 20 points under Impairment Table 1.

    Medical Evidence

26. In a letter dated 21 May 2015, Dr Kabunga, cardiology fellow, lists several diagnoses including ischaemic heart disease, mitral and tricuspid regurgitation, implantable defibrillator and paroxysmal atrial fibrillation.

27. Dr Kabunga notes that Mr Drake has had “no symptoms of palpitations, syncope or presyncope”, his implanted device “has not detected any arrhythmias and all other parameters are stable” and suggests a further review in six months.

28. In a Housing Pathways Medical Assessment form dated 9 June 2015, Dr Dagher states that Mr Drake suffers from “Heart disease, Heart failure” and describes symptoms as “heart disease, heart failure, tiredness, limited physical abilities”.

29. Dr Dagher notes that Mr Drake “is sensitive to medication and particularly experiences very low blood pressure as a side effect of some of some of his medication. When experiencing low blood pressure mobility is severely affected”.

30. Dr Dragher also states that Mr Drake lives “within 500 metres of Woolworths to do almost all his shopping in multiple trips carrying only a little several days per week. He is also within 900 metres of his chemist, and Granville station” [sic].

31. In a Centrelink Medical Certificate dated 11 December 2015 Dr Dagher notes a diagnosis of “Heart Disease, Heart failure” with symptoms of “tiredness” and “limited physical abilities” but provides no other details.

32. In a brief letter dated 16 May 2015, Dr Dagher states that Mr Drake “experiences low blood pressure” as a side effect of his heart medications and that when he has low blood pressure he is “unable to use public transport, trains or buses, due to the risk of falling while climbing up or down”.  Dr Dagher provides no other details apart from stating that “Mr Drake does not have a carer to assist him”. 

33. In an undated document, received on 9 June 2016, which is a copy of the 20 point descriptors under Table 1, Dr Dagher underlines certain descriptors and states that “I agree with the above rating of 20 points”. He notes symptoms of “tiredness, limited physical abilities, dizziness, headaches, low BP” but provides no other details.

    Job Capacity Assessment (JCA) Report 

34. In a JCA Report submitted on 15 October 2015 the assessor concluded that, because of Ischaemic Heart Disease, Mr Drake suffered a mild functional impact on activities requiring physical exertion or stamina and recommended a rating of 5 points under Impairment Table 1.

35. The assessor contacted Mr Drake’s cardiologist, Dr McGrady, who indicated that his condition was stable. Dr McGrady was reported as saying that Mr Drake:

    “…would need to walk around the community slowly, would have difficulty with walking uphill and would experience shortness of breath on heavier household chores such as vacuuming, however should be able to manage changing sheets on a bed and sweeping the floor.”

36. Dr McGrady also indicated that Mr Drake “would not be suitable to work in heavy physical labour such as in the mining or construction industry, however should be able to manage sedentary duties.”

    SSCSD Decision

37. At the SSCSD hearing, Mr Drake provided a fairly comprehensive history of his heart condition and his functional capability.

38. The SSCSD noted, inter alia, the following:

    “Mr Drake monitors his own heart rate and blood pressure and is now so attuned to his symptoms, that he can accurately predict his pulse rate and blood pressure even without measuring them… Much of the time his blood pressure is normal, around 120/70, but Mr Drake informed the tribunal that he develops symptoms of hypotension (dizziness, weakness, headache, poor co-ordination, loss of concentration and depression) whenever the (systolic ) blood pressure drops below 100, and the symptoms can be quite severe if the pressure drops towards 80/50. On these occasions, he will spend many hours lying on a couch or on a bed, to minimise symptoms until the pressure, and symptoms improve.

    Mr Drake knows that for, both his depression and for his heart, he needs to regularly exercise and so he pushes himself to go for a walk about six days a week. He generally manages between two kilometres (home to Granville railway station and back a few times a week) or one kilometre (to the Woolworths shop and back, about two to three times a week). He also goes by train to the Aldi store in Parramatta about once or twice a week, but he stated that he is wary of travelling frequently by public transport because of the intermittent dizziness and some coordination issues regarding the width and height of the gap between the platform and the train.

    Mr Drake lives alone and self-cares without difficulty. He cooks his own meals which vary between a fully cooked meal at night on a good day, to fast food from the fridge when he doesn’t feel up to cooking, which is several times a week. He has little, if any, trouble climbing the 15 stairs to his unit, every day, and does his own washing, cleaning, dressing, undressing, showering and toileting, all without difficulty providing he chooses his time to do them and providing he takes his time. He spends a large amount of his time writing, generally on a computer, often many hours a day though needs to take a break every one to two hours.”

    Consideration

39. On consideration of all the documentary evidence before the Tribunal I am satisfied that, during the claim period, Mr Drake’s heart condition was permanent for the purposes of the Impairment Determination so that a rating under the Impairment Tables can be assigned.

40. However, the assessment as to the level of impairment suffered by Mr Drake is, in my view, somewhat problematic.

41. Mr Drake, on his self-assessment, claims that he suffers severe impairment which would warrant a rating of 20 points under Impairment Table 1.

42. The difficulty for Mr Drake is that the corroborative medical evidence, which can best be described as incomplete, does not, in my view, provide a satisfactory assessment of the functional impact of his heart condition on activities requiring physical exertion during the claim period.   

43. The document in which Dr Dagher states that he agrees with a rating of 20 points is, in my view, unhelpful, in that he does not provide a satisfactory explanation for his opinion and demonstrates a lack of understanding of the correct meaning of the descriptors.

44. Furthermore, Dr Dagher’s opinion is not consistent with Mr Drake’s own evidence provided at the SSCSD hearing.

45. On consideration of the available evidence, in particular Mr Drake’s own evidence at the SSCSD hearing, and the descriptors in Impairment Table 1, I am satisfied that during the claim period, Mr Drake’s heart condition did have a functional impact on activities requiring physical exertion or stamina but that the level of impact was mild to moderate.

46. I am also satisfied that, apart from Mr Drake’s self-assessment, there is no satisfactory evidence to support a conclusion that, during the claim period, he suffered a severe functional impact on activities requiring physical exertion or stamina.

47. It follows that, during the claim period, a rating of no greater than 10 points under Impairment Table 1 could have been assigned.

    OTHER MEDICAL CONDITIONS

48. Mr Drake claims he suffers from “depression” and “chronic sinusitis”.

49. There is no evidence that Mr Drake’s claimed condition of “depression” has been diagnosed by a psychiatrist or clinical psychologist as required by the Introduction to Impairment Table 5. Therefore, a rating under Impairment Table 5 cannot be assigned.

50. With respect to the claimed condition of “chronic sinusitis” there is no medical evidence to support this diagnosis, therefore, a rating under the Impairment Tables cannot be assigned.

    DECISION

51. For reasons set out above the Tribunal is satisfied that, during the claim period, Mr Drake did not have an impairment of 20 points or more under the Impairment Tables so that he did not satisfy section 94(1)(b) of the Act and did not qualify for DSP.

52. The decision under review is affirmed.

I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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

Associate

Dated 6 September 2016

Date(s) of hearing	9 August 2016 (heard on the papers)
Applicant	In person
Solicitors for the Respondent	Department of Human Services