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

[2016] AATA 190

Gaul and Secretary, Department of Social Services (Social services second review) [2016] AATA 190 (31 March 2016)

Division	GENERAL DIVISION
File Number	2015/3293
Re	Carleen Gaul
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr I Alexander, Member
Date	31 March 2016
Place	Sydney

The Tribunal affirms the decision under review.

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

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – multiple conditions – whether medical conditions were fully diagnosed, treated and stabilised – impairment rating of less than 20 points – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999

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

31 March 2016

1. On 29 October 2014 Ms Gaul, who is 60 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 29 May 2015, the former Social Security Appeals Tribunal (“SSAT”) found that Ms Gaul had a total impairment rating of 10 points, with 5 points under Impairment Table 4 and 5 points under Impairment Table 5 so that she did not satisfy s 94(1)(b) of the Act and did not qualify for DSP.

4. In these proceedings Ms Gaul seeks review of the SSAT’s decision.

5. At the hearing Ms Gaul was self-represented and able to give oral evidence.

   ISSUES

6. In order to qualify for DSP Ms Gaul 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) Act 1999. The relevant period is between 29 October 2014 and 28 January 2015 (“the claim period”).

7. 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.

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

9. In her claim form Ms Gaul lists the following disabilities:

   “Mini strokes, bad eyesight, glaucoma right eye, arthritis in both arms and hands, osteoporosis, all up spine and neck.”

10. In a Centrelink Medical Report dated 22 October 2014 Dr Hanna, GP, lists “osteoporosis” and “(R) trigger thumb” as medical conditions that have a significant functional impact.

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

    ·the condition is more likely than not to persist for more than two years (paragraph 6(4)(d)).

13. 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”.

14. 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 a psychiatrist)”.

15. The Respondent contends that Ms Gaul’s impairment, during the claim period, was 5 points under Impairment Table 4 so that she did not satisfy s 94(1)(b) of the Act.

16. Alternatively, the Respondent contends that, during the claim period, Ms Gaul could not satisfy section 94(1)(c) of the Act as she did not have a “continuing inability to work” because she did not have a “severe impairment” as defined in the s 94(3B) of the Act and had actively participated in a Program of Support (POS) for only 13 months in the 3 years prior to the date of claim.

17. Therefore, the relevant issues for the Tribunal to consider are whether, during the claim period Ms Gaul’s impairment was 20 points or more under the Impairment Tables and, if so, whether she had a “continuing inability to work”.

    Ms Gaul’s oral evidence

18. Ms Gaul told the Tribunal that she lives alone in a one-bedroom unit above a shop and must climb 16 steps to her front door. She needs to use the stair rails and to take it slowly. She is usually able to care for herself with some difficulty and on weekends her younger brother helps with cleaning, hanging the washing and shopping. During the week she also frequently gets help from a friend.

19. Ms Gaul explained that she was working until March 2014 when she was “laid off” and at that time her medical conditions had already started to interfere with her capacity for work. During the last 12 months Ms Gaul’s medical conditions have deteriorated particularly her back symptoms and she has experienced increased stiffness in her hands. She has trouble sleeping, has become more lethargic and complains of “shortness of breath” which restricts her walking tolerance. Recently she has also had some difficulty with her shoulders.

    MENTAL HEALTH CONDITION

20. In a report dated 16 November 2011 Dr Saker, psychiatrist, notes that Ms Gaul has a history of “‘bad nerves’ and compulsive worrying” and is self-medicating with marijuana to replace needed Diazepam which had been prescribed by her GP “for years”.

21. Dr Saker concludes that Ms Gaul’s symptoms are consistent with a “mild Generalised Anxiety Disorder” and suggests continuation with “long-term Diazepam 5 mg daily” and notes that she declined psychological assistance.

22. At the hearing Ms Gaul stated that she saw Dr Saker on only one occasion and was unable to recall seeing another psychiatrist since then.

23. In his report of 22 October 2014 Dr Hanna lists “anxiety depression” as a medical condition generally well managed that causes minimal or limited impact and provides no other details.

24. In a Centrelink Medical Report dated 9 January 2015 Dr Hanna lists “depression” as a medical condition with significant functional impact, notes current treatment as “antidepressant medication” but provides no details with respect to functional impact.

25. In a letter dated 22 April 2015 Ms George, registered psychologist, notes that Ms Gaul was referred for counselling by her GP on the 10 December 2014 for management of “Depression, Stress and Anxiety”.     

26. Ms George notes that Ms Gaul has attended 6 sessions of counselling, to date, but provides no details with respect to functional impairment apart from stating that she “is currently unable to sustain any form of employment”.

27. In a letter dated 26 October 2015 Ms George notes that Ms Gaul has attended all her booked counselling sessions and comments that “Ms Gaul’s downside in life is her extreme nervousness when she is unable to handle stressful situations” and that currently “she is in the process of exploring and working through her difficulties”.

28. Various documents from the Chester Hill Family Practice indicate that during 2015 Ms Gaul was prescribed several antidepressants including mirtazapine, Endep10, Endep25 and Zoloft without much apparent benefit.

29. Ms Gaul told the Tribunal that she stopped taking all the antidepressants because of adverse side-effects and continued to rely on diazepam (Valium). However, her regular GP was not willing to continue to prescribe Valium because of concerns about addiction so that she had to find another GP prepared to prescribe Valium.

30. In a referral letter to a psychiatrist, dated 28 January 2016, Dr Arain, GP, notes inter alia that Ms Gaul,

    “has been on valium since the age of 17, uses it prn only…She came to see us as her GP was trying to take her off the valium and tried zoloft – ceased due to rash and endep – ceased due to nightmares. I have given her a prescription for valium today and advised her it needs to last over one month as she says she does not need it all the time. I would be grateful for your review and opinion on this lady.”

31. Ms Gaul told the Tribunal she has been unable to make an appointment to see the psychiatrist.

    Consideration

32. Dr Saker saw Ms Gaul on one occasion in November 2011 and made a diagnosis of “generalised anxiety disorder” almost three years prior to the date of claim when her circumstances would have been quite different and she was still able to work.

33. During that three-year period Ms Gaul’s condition was not reviewed by another psychiatrist or clinical psychologist and apart from intermittent Valium she has not required any other treatment.

34. During the claim period Ms Gaul’s GP makes a diagnosis of “depression”, refers her to a psychologist for counselling and prescribes antidepressant medication. In my view, this would suggest that, during the claim period, her symptoms may have become more severe or had significantly changed.

35. Whether Ms Gaul had presented with a new mental health condition or an exacerbation of her previously diagnosed anxiety disorder is unclear, as she was not assessed by a health care professional qualified to make psychiatric diagnoses, such as, a psychiatrist or clinical psychologist. 

36. During 2015 Ms Gaul’s antidepressant medication was frequently changed with no apparent benefit. In January 2016 she was finally referred to a psychiatrist but still has not been assessed.

37. For the above reasons I am not satisfied that, during the claim period, Ms Gaul’s mental health condition was fully diagnosed, fully treated and fully stabilised and, therefore, not permanent for the purposes of the Impairment Determination so that a rating under the Impairment Tables cannot be applied.

38. Furthermore, even if I were to accept that, during the claim period, Ms Gaul’s mental health condition was permanent for the purposes of the Impairment Determination, I am not satisfied that there is sufficient corroborative evidence to allow for a reasonable assessment of the functional impact of her condition on activities involving mental health function at that time.

    SPINAL FUNCTION

39. There is no dispute that Ms Gaul suffers significant osteoporosis of the spine as well as some degenerative changes in the cervical spine.

40. The Respondent concedes and the Tribunal accepts that, during the claim period, Ms Gaul’s spine conditions were permanent for the purposes of the Impairment Determination so that a rating under Impairment Table 4 can be applied.

41. In his report of 22 October 2014 Dr Hanna lists “osteoporosis” as the medical condition with most impact, notes current symptoms as “back pain, neck pain” but provides no details as to how this condition impacts on Ms Gaul’s ability to function. He also notes “back pain” as a condition that is generally well managed which causes minimal or limited impact.

42. In his report of 9 January 2015, which is partly illegible, Dr Hanna lists “spondylosis of cervical spine – thoracic spine…” as the medical condition with most impact, notes current symptoms as “severe neck pain, back trouble….standing, unable to lift, unable to bend” but provides no details with respect to impact on ability to function. He also notes “osteoporosis” as a medical condition that is generally well managed which causes minimal or limited impact.

43. In a Job Capacity Assessment Report (JCA) submitted on 1 December 2014 the assessor notes that the client reported that,

    “she experiences persistent neck and back pain which impacts on her daily functioning including restricted mobility and range of movement…. has difficulty with bending down to her knees and difficulty with reaching up over head height due to spinal pain (neck and radiating to both shoulders)”.

    The assessor recommended a rating of 5 Points under Impairment Table 4.

44. In a letter dated 2 April 2015 Dr Preda, endocrinologist, notes that Ms Gaul was diagnosed with “osteoporosis” last year and is tolerating therapy with “Actonel combi” well but provides no details with respect to the functional impact of this condition.

45. Ms Gaul told the SSAT that she gets a “lot of pain”  in her back and neck and:

    ·has difficulty in reaching up to retrieve objects from high places,

    ·prefers to put washing onto a clothes horse rather than hanging it up to dry,

    ·experiences pain when bending down to pick up objects from the floor or to put on her shoes,

    ·cannot carry anything heavy and

    ·is able to move her head from side and up and down.

46. The SSAT decided that Ms Gaul’s spine conditions had a mild functional impact on activities involving spinal function and applied a rating of 5 points under Impairment

    
    

    Table 4

47. In my view, the corroborative evidence with respect to Ms Gaul’s impairment caused by her spine conditions, during the claim period, can best be described as incomplete and somewhat limited.  I accept that, during this period, her permanent spine conditions had at least a mild functional impact on activities involving spinal function. However, I am not persuaded that there was a moderate functional impact so that a rating of 5 points under Impairment Table 4 can be applied.

    VISUAL FUNCTION

48. In a letter dated 7 April 2006 Dr Steiner, ophthalmologist, states inter alia the following:

    “Thank you for referring Carleen who as you know on Christmas had total loss of her right vision for four minutes and since then has had three attacks of loss of the lower half of the right vision. She has a family history of glaucoma but her intraocular pressures are normal. She sees 6/5 on the right and 6/9 on the left. On the right she has anterior subcapsular cataract….Her fundi are normal except the arterioles are attenuated. …I have arranged a carotid doppler. …She really should stop smoking…”

49. In a referral letter to an ophthalmologist dated 5 September 2011, Mr Yap, optometrist, notes that Ms Gaul complains of transient visual field loss and raises the possibility of “mini strokes”.

50. In a letter dated 7 October 2011 Dr Zborowska, ophthalmic surgeon, states inter alia the following:

    “On examination today her visual acuity is 6/9 in both eyes. The intraocular pressures are normal. She has got mild cataracts more significant in the right eye.  Fundoscopy reveals normal retina and maculae in both eyes…..I have organised some blood tests and scans and Carotid Doppler’s examination…”

51. There is no more recent medical evidence with respect to any visual symptoms.

52. Ms Gaul told the SSAT that provided she is wearing glasses she “is able to read a newspaper and see street signs”.

53. I accept that, during the claim period, Ms Gaul had visual impairment that required correction with glasses and that the impairment was permanent for the purposes of the Impairment Determination so that a rating under the Impairment Tables can be applied.

54. There is no evidence before the Tribunal that, during the claim period, Ms Gaul suffered any functional impact on activities involving visual function so that a rating under Impairment Table of zero points applies.

    UPPER LIMB FUNCTION

55. Ms Gaul claims she suffers severe arthritis in her hands which causes pain and stiffness. She told the SSAT that she has a tendency to drop cups but is “able to take a shower, wash her hair, dress herself, do up buttons, use utensils, write with a pen or pencil and handle coins.”

56. In his report of 22 October 2014 Dr Hanna lists “(R) Trigger Thumb” as a medical condition that has significant functional impact and describes the functional impact as “trouble holding objects in both hands”. Dr Hanna provides no other details and does not mention “arthritis” in the hands.

57. In his report of 9 January 2015 Dr Hanna lists “Trigger (R) thumb” as a medical condition that is generally well managed and that causes minimal or limited impact.

58. In a Centrelink Medical Report dated 1 April 2015 Dr Hanna lists “osteoarthritis in both hands” as a medical condition that is generally well managed and that causes minimal or limited impact but provides no other details.

59. The medical evidence with respect to Ms Gaul’s hand conditions is somewhat incomplete and unhelpful. In my view, there is no convincing evidence to support Ms Gaul’s claim that she suffers severe “arthritis” in both hands, as was listed among her disabilities in the claim form.

60. I accept however, that during the claim period, Ms Gaul’s condition of right “trigger thumb” was permanent for the purposes of the Impairment Determination so that a rating under Impairment Table 2 can be made.

61. On consideration of the available evidence and the descriptors in Impairment Table 2 I am satisfied that, during the claim period, Ms Gaul’s right hand condition had no functional impact on activities using hands and arms so that a rating of zero points applies.

    RESPIRATORY FUNCTION

62. Ms Gaul told the Tribunal that she now suffers “shortness of breath” which significantly limits her walking tolerance. She said that she is still smoking up to 10 rolled cigarettes per day and also suffers from “asthma” which she treats with a Ventolin inhaler once and sometimes twice a day.

63. In his first two reports Dr Hanna lists chronic obstructive airways disease (“COAD”) as a medical condition that is generally well managed and that causes minimal or limited impact but provides no other details and does not mention “asthma”.

64. In his report of 1 April 2015 Dr Hanna lists “COAD” as the medical condition with most impact, notes chronic cough and shortness of breath (“SOB”) as current symptoms and describes impact on ability to function as “SOB on exertion” but provides no other details.

65. On the very limited evidence available to the Tribunal I am not satisfied that Ms Gaul’s respiratory condition was fully diagnosed, fully treated and fully stabilised during the claim period so that a rating under the Impairment Tables cannot be applied.

    THYROID CONDITION

66. There is no dispute that Ms Gaul suffers “hypothyroidism” and that, during the claim period, this condition was permanent for the purposes of the Impairment Determination. As there is no evidence before the Tribunal to suggest that Ms Gaul suffers any functional impairment because of this condition a rating of zero points under the Impairment Tables applies.

    DECISION

67. For reasons set out above I am satisfied that, during the claim period, Ms Gaul did not have an impairment of 20 points or more under the Impairment Tables so that she did not satisfy s 94(1)(b) of the Act and did not qualify for DSP. Therefore, it is not necessary for me to consider whether, during the claim period, Ms Gaul satisfied section 94 (1)(c) of the Act.

68. The decision under review is affirmed.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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

Associate

Dated  31 March 2016

Date(s) of hearing	9 March 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services