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

[2020] AATA 4179

Hurmz and Secretary, Department of Social Services (Social services second review) [2020] AATA 4179 (20 October 2020)

Division:GENERAL DIVISION

File Number:          2019/8324

Re:Saib Mikail Hurmz

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:

Date:20 October 2020

Place:Sydney

The decision under review is affirmed.

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

Dr I Alexander, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – eligibility – physical and psychological impairments – benign prostatic hyperplasia – emphysema – hypertension – alcohol dependence – mental health condition – whether impairments fully diagnosed, treated and stabilised – whether impairments attract 20 or more points – impairment tables – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth)

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

Social Security (Administration) Act 1999 (Cth)

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

REASONS FOR DECISION

Dr I Alexander, Senior Member

20 October 2020

BACKGROUND

1. On 15 March 2019, Mr Hurmz, who is now 65 years old, lodged a claim for Disability Support Pension (DSP).

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

   [1]Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth).

3. In a decision dated 28 November 2019, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) found that ‘Mr Hurmz’s impairments rate a total of 0 points under the Impairment Tables’ and, therefore, he did not satisfy paragraph 94(1)(b) of the Act.

4. In these proceedings Mr Hurmz, who is self-represented, seeks review of the decision of the AAT1.

5. In view of the temporary changes with regard to the suspension of face-to-face Tribunal hearings during the COVID-19 pandemic, both parties attended the hearing by telephone.

   ISSUES

6. In order to qualify for the DSP, a person must satisfy the requirements of section 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) Act 1999 (Cth) (the Administration Act). That is, Mr Hurmz must satisfy the requirements between 15 March 2019 and 14 June 2019 (the qualification 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)…

   (i)     the person has a continuing inability to work;

   (ii)    …

   …

8. For present purposes, the relevant medical conditions Mr Hurmz claims in his application for DSP include benign prostatic hyperplasia, emphysema, hypertension, alcohol dependence and a mental health condition.

9. There is no dispute that Mr Hurmz suffered several medical conditions during the qualification period that caused some functional impairment and, therefore, he satisfied paragraph 94(1)(a) of the Act.

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

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

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

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 qualification period, Mr Hurmz had a total rating of 0 points under the Impairment Tables and, therefore, he did not satisfy paragraph 94(1)(b) of the Act.

15. The Respondent also contends that, during the qualification period, Mr Hurmz could not satisfy paragraph 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 paragraph 94(2)(aa) of the Act.

16. Paragraph 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)…’.

17. Subsection 94(3B) of the Act 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. Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) 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. It is agreed that, prior to the date of claim, Mr Hurmz had been enrolled in a POS but had not actively participated for at least 18 months in a POS prior to the date of claim.[2]

    [2] Mr Hurmz had completed only 190 days.

20. It follows that the determinative issues in this matter are whether, during the qualification period, Mr Hurmz suffered a severe impairment, that is, an impairment of 20 points or more under a single Impairment Table and, if so, whether he had a continuing inability to work.

    Benign Prostatic Hyperplasia (BPH)

21. The Respondent contends and the Tribunal accepts that, during the qualification period, Mr Hurmz’s BPH condition was fully diagnosed, treated and stabilised[3] and, therefore, permanent for the purposes of the Impairment Tables.

    [3] Transurethral prostatectomy was performed at Liverpool Hospital on 25 July 2018.

22. There is however no evidence that, during the qualification period, Mr Hurmz suffered any impairment because of his BPH.  This was confirmed by Mr Hurmz at the hearing.

23. I am satisfied that, during the qualification period, Mr Hurmz’s rating under Impairment Table 13 was 0 points.

    Emphysema

24. The Respondent contends that, during the qualification period, Mr Hurmz’s condition of ‘emphysema’ was not fully treated and fully stabilised.

25. In a referral letter dated 6 March 2018, Dr Al-Horani, general practitioner, asked for an opinion in respect of Mr Hurmz’s ‘chronic smoking, x-ray showed evidence of emphysema and some densities in the left lung’.

26. A CT pulmonary angiogram performed on 5 April 2018 is reported as showing ‘no evidence of pulmonary embolus… moderate centrilobular emphysema and paracentral emphysema… no lung consolidation or mass lesion... atelectasis in the posterior lower lobes… no pleural effusion…’. 

27. There is no other medical evidence with respect to Mr Hurmz’s claimed lung condition.

28. Mr Hurmz told the Member at the AAT1 that he was ‘referred to a specialist at the hospital but missed the appointment’.

29. At the hearing, Mr Hurmz confirmed he continues to smoke and is not on any treatment for his lung condition.

30. On consideration of the limited available evidence, I am satisfied that, during the qualification period, Mr Hurmz’s claimed lung condition was not fully diagnosed, fully treated and fully stabilised and, therefore, a rating under the Impairment Tables cannot be assigned as the condition is not considered ‘permanent’.

    Hypertension

31. The Respondent contends that, during the qualification period, Mr Mr Hurmz’s condition of ‘hypertension’ was not fully treated and fully stabilised.

32. Mr Hurmz told the Tribunal that he had been taking oral medication for hypertension for four to five years. He did not describe any impairment because of this condition.

33. A series of medical certificates provided by various general practitioners indicate that Mr Hurmz has been treated for hypertension with Coveram since March 2016. However, there is no corroborative evidence of any functional impact with respect to this condition.

34. I am satisfied that, during the qualification period, Mr Hurmz’s hypertension was permanent for the purposes of the Impairment Tables and that a rating of 0 points under the Impairment Tables can be assigned.

    Mental health / alcohol dependence

35. The Respondent contends and the Tribunal accepts that, during the qualification period, Mr Hurmz suffered a ‘mental health condition’ and ‘alcohol dependence’ which was fully diagnosed but not fully treated and fully stabilised.

36. Between March 2016 and November 2018, various general practitioners, including Dr Al-Horani, provided repeated medical certificates which stated that Mr Hurmz suffered ‘anxiety, depression, panic attacks, PTSD’ and that current treatment is ‘neulactil, cymbalta, psychologist’.

37. However, in two letters dated 6 March 2018 and 13 March 2018, Dr Al-Horani stated that Mr Hurmz’s current medication was ‘Avanza 30mg’.

38. In July 2018, the discharge summary from Liverpool Hospital confirmed that Mr Hurmz’s current medication included ‘mirtazapine 30 mg’ (Avanza).

39. In a letter dated 21 September 2017, Dr Mahmoud Abu-Arab, clinical psychologist,[4] noted that in 2014, Mr Hurmz ‘was subjected to an act of violence when a group of 3 men invaded his home, physically assaulted him, took some of his belongings and vandalised his car’.

    [4] In the Statement of Issues, Facts and Contentions, the Respondent claims that Dr M. Abu-Arab was not endorsed to practice as a clinical psychologist. This is incorrect. On my review of the APHRA website Dr M. Abu-Arab was in fact endorsed to practice as a clinical psychologist.

40. Dr Aru-Arab stated that Mr Hurmz ‘qualifies for the diagnosis of PTSD and Major Depression’ and that the condition had been present for more than two years.

41. Dr Aru-Arab stated that Mr Hurmz ‘was keen to participate in treatment and he reported that he has been using strategies offered by the therapist to manage his pain [and] depression…’ but provided no details of past recommended treatment. 

42. In a letter dated 27 July 2020, Dr Luong, psychiatrist, noted that he first saw Mr Hurmz on 6 February 2019[5] and stated, inter alia, as follows

    [5] About 5 weeks before the date of claim for DSP.

    I have reviewed him on the following occasions: 02.03.2019, 10.08.2019, 01.05.2020, 15.07,2020… Mr Hurmz was taking mirtazapine[6], a sedating antidepressant, 15 mg at night… he reported smoking 25g of tobacco every 3 days … drinking ~ 700ml of wine a day[7]... this amount on a daily basis ‘for years’… Mr Hurmz  reported… he never got drunk… drank mainly at home… did not see his drinking was a problem…

    … my initial diagnosis was a Major Depressive Disorder. However, Mr Hurmz also attracted diagnoses of Alcohol Dependence and possible Post-traumatic Stress Disorder.

    I discussed with Mr Hurmz the following rationale:

    1. The foremost task was to reduce and eventually abstain from alcohol completely

    2. When he was able to stop abusing alcohol, then I will consider starting him on antidepressant therapy.

    3. Once his depressive illness becomes stabilized then we will review whether he suffers from PTSD or not…

    I commenced him on an olanzapine 5mg nocte.

    I reviewed Mr Hurmz on 02.03.2019. He reported he stopped taking olanzapine.... he reported he could not stop drinking… In subsequent reviews, Mr Hurmz presented with distresses in relation to his issues with Centrelink and job network. Counselling and psychoeducation about the harm of alcohol on his physical and mental health made no impact on him… he has insight in that he is aware that his alcohol habit will destroy him eventually. However, he did not see the point of making any changes in his life.

    [6] Avanza.

    [7] In the Job Capacity Assessment Report submitted on 24 June 2019 the assessor noted that ‘Client reported history of alcohol consumption – previously consuming half a bottle of spirits daily; currently consuming 1-2 glasses of wine daily’.

43. Dr Luong concluded that Mr Hurmz suffers ‘sever functional impact’ on activities involving mental health function.

44. At the hearing, Mr Hurmz confirmed that he will continue to consume alcohol and does not wish to consider any other treatment for his mental health condition.

    Consideration

45. I am satisfied that the available evidence supports a conclusion that, during the qualification period, Mr Hurmz’s mental condition and alcohol dependence was fully diagnosed for the purposes of the Impairment Tables.

46. The issue as to whether, during the qualification period, these ‘conditions’ were fully treated and fully stabilised is somewhat problematic. 

47. The evidence with respect to the treatment of Mr Hurmz’s mental health condition prior to February 2019 can best be described as incomplete, inconsistent and, in my view, of questionable reliability.

48. Mr Hurmz’s Medicare Patient History Report revealed that between February 2016 and February 2019 he had three consultations with a clinical psychologist[8] and ten counselling sessions with a mental health social worker.[9]

    [8] Exhibit R2:  Dr Abu-Arab – 23 June 2017, 4 August 2017 and 21 September 2017.

    [9] Ibid: Mrs Qummouh - 24 November 2016 to 12 May 2017 (x5) and 11 September 2018 to 21 November 2018 (x5).

49. Mr Hurmz’s PBS patient summary revealed that his compliance with psychotropic medication was at best, patchy, with 7 prescriptions supplied in 2016,[10] 4 prescriptions supplied 2017[11] and 4 prescriptions supplied 2018.[12]

    [10] Exhibit R3: Zoloft(30) x 1; Cymbalta(28) x 5; Neulactil(100) x 1 .

    [11] Ibid: Cymbalta(28) x 2; Avanza(30) x 1.

    [12] Ibid: Avanza(30) x 3; desvenlafaxine(28) x 1.

50. I note at this point that the information included in the medical certificates provided by the various general practitioners is not consistent with the Medicare and PBS documents.

51. In my view, the available evidence suggests that prior to February 2019, Mr Hurmz had not undertaken reasonable treatment for his claimed mental health condition.

52. The issue of Mr Hurmz’s alcohol dependence is also problematic, in that, it was not diagnosed until February 2019, at the time of his first assessment by a psychiatrist. His continuing alcohol dependence clearly limits the options for psychotropic treatment.

53. Mr Hurmz’s choice to immediately reject Dr Luong’s rationale for treatment, in my view, amounts to a failure to attempt reasonable treatment.

54. On consideration of the available evidence I am not persuaded that, during the qualification period, Mr Hurmz’s mental health condition and alcohol dependence were fully treated and fully stabilised and, therefore, a rating in Impairment Tables 5 and 6 cannot be assigned.

    CONCLUSION

55. For the reasons set out above I am satisfied that, during the qualification period, Mr Hurmz had a total rating of 0 points under the Impairment Tables.

56. As Mr Hurmz did not have an impairment rating of 20 points or more under the Impairment Tables, he did not satisfy paragraph 94(1)(b) of the Act.

57. Also, as Mr Hurmz did not satisfy paragraph 94(1)(b) of the Act during the qualification period, it is not necessary to consider whether he had a continuing inability to work.

    DECISION

58. For the reasons set out above, the Tribunal is satisfied that, during the qualification period, Mr Hurmz did not satisfy paragraph 94(1)(b) of the Act and did not qualify for DSP.

59. The decision under review is affirmed.

I certify that the preceding 59 (fifty -nine) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Senior Member

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

Associate

Dated: 20 October 2020

Date of hearing:	2 October 2020
Applicant:	Self-represented
Solicitor for the Respondent:	Mr G Lozynsky, Services Australia