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

[2018] AATA 176

Joneidi and Secretary, Department of Social Services (Social services second review) [2018] AATA 176 (14 February 2018)

Division:GENERAL DIVISION

File Number:2017/2470           

Re:Hamid Joneidi  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member  

Date:14 February 2018

Place:Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – impairment – whether disability is fully diagnosed, treated and fully stabilised – whether applicant’s impairments attract 20 points or more under the Impairment Tables – depression – bilateral knees osteoarthritis – spinal and neck condition – other conditions – decision under review affirmed  

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) Schedule 2

SECONDARY MATERIALS

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

REASONS FOR DECISION

14 February 2018 

INTRODUCTION

1. The applicant, Mr Hamid Joneidi, lodged an application for the disability support pension on 2 December 2015.

2. On 11 March 2016, the Department of Human Services (Centrelink) decided to reject Mr Joneidi’s claim for the disability support pension on the basis that he did not satisfy the requirements of section 94 of the Social Security Act 1991 (the Act). An authorised review officer of Centrelink affirmed this decision on 27 September 2016.

3. Mr Joneidi subsequently applied to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) for review and, on 28 March 2017, the SSCSD affirmed Centrelink’s decision to cancel Mr Joneidi’s disability support pension.

4. On 26 April 2017, Mr Joneidi applied to the General Division of the Tribunal for a review of the SSCSD decision.

5. The matter was heard in Sydney on 31 January 2018. Mr Joneidi attended the hearing in person and gave oral evidence. He was assisted by an interpreter of the Persian language.

   RELEVANT LEGISLATION AND ISSUES

6. Subsection 94(1) of the Act provides that a person qualifies for the 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 in s 94(2) of the Act.

7. In accordance with the requirements set out in clause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (Cth), to qualify for the disability support pension, Mr Joneidi must satisfy the requirements of section 94 of the Act as at the date of his claim or within 13 weeks of lodging the claim, that is between 2 December 2015 and 2 March 2016 (the claim period).

8. The Secretary concedes, and the Tribunal agrees, that Mr Joneidi suffers medical conditions that cause impairment and therefore, he satisfied paragraph 94(1)(a) of the Act at the time of his claim for the disability support pension.

9. It follows that the determinative issues in this matter are whether, during the claim period, Mr Joneidi had:

   ·an impairment rating of 20 points or more under the Impairment Tables; and

   ·a continuing inability to work as defined in subsection 94(2) of the Act.

   CONSIDERATION

   Does Mr Joneidi have medical conditions that can be rated at 20 points or more under the Impairment Tables?

10. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination) requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. As set out in subsection 6(4) of the Impairment Tables Determination, a medical condition is permanent if it:

    ·has been fully diagnosed; and

    ·has been fully treated; and

    ·has been fully stabilised; and

    ·is more likely than not to persist for more than two years.

11. When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider: whether it has been fully diagnosed by an appropriately qualified medical practitioner; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years: subsection 6(5) of the Impairment Tables Determination. Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: subsection 6(6) of the Impairment Tables Determination.

12. The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment. An impairment can be rated between nil and 30 points, depending on how it affects a person’s ability to function.

13. The introduction to each Impairment Table states that a person’s self-report of symptoms alone ‘is insufficient’ and there ‘must be corroborating evidence of the person’s impairment’.

14. Relevant to this matter, the introduction to Table 5 of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also 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).

15. A medical report by Dr Sadiq Asar (general practitioner) dated 4 December 2015 submitted with Mr Joneidi’s claim for disability support pension sets out that he has the following conditions:

    ·depression;

    ·bilateral knees osteoarthritis;

    ·C6-C7 cervical disc protrusion, C7 nerve root compression and lower back pain;

    ·benign prostatic hypertrophy; and

    ·obstructive sleep apnoea.[1]

    [1] Exhibit T21.

16. I now consider each of Mr Joneidi’s medical conditions and the relevant rating in accordance with the Impairment Tables.

    Depression

17. Dr Asar reported on 4 December 2015 that Mr Joneidi has depression, which is being treated with counselling and medication but ‘still has not stabilised’.

18. A report by Dr Ali Sahebi (clinical psychologist) on 2 March 2012 noted that Mr Joneidi exhibited symptoms consistent with stress and depressive disorder, and ‘his symptoms are moderate and chronic [in] nature and have impaired his physical, social and cultural functioning’.[2] Dr Sahebi reported treating Mr Joneidi during 2009 and 2012, and concluded Mr Joneidi ‘has prolonged psychological issues [that] have impacted his day-to-day living and functioning’.

    [2] Exhibit T12.

19. Dr Reza Pishyar (clinical psychologist) provided a report dated 1 April 2016, which confirmed Mr Joneidi is currently under his psychological care and receiving psychotherapy for major clinical depression and traumatic anxiety disorder.[3] Dr Pishyar described Mr Joneidi’s psychological problems as including insomnia and preoccupation with his unresolved psychosocial matters; poor concentration and poor memory; feelings of meaninglessness, hopelessness and helplessness; periods of crying and loss of motivation with severe tiredness; intrusive memories and negative thoughts from his past. He opined that:

    Mr Joneidi is fully diagnosed with depression and anxiety disorder, fully treated and taking antidepressant medication to prevent further relapse and helping him to keep his current stabilization.

    [3] Exhibit T25.

20. A further report by Dr Pishyar on 11 August 2017 described Mr Joneidi as having severe depression and noted:

    Independent living: He cannot care for himself and has difficulties to manage his day-to-day living requirements due to his chronic medical conditions,

    Social and recreational involvement: he dose [sic] not socialize much and having limited social interaction and cannot cope with his daily social demands,

    Interpersonal relationship: He has difficultly [sic] to engage to any type of interpersonal connections and prefers stying [sic] indoor [sic] and easing his physical pain with his limited activity,

    Memory and concentration: He is unable to keep things in his memory even for short period [sic] of time, unable to concentrate on any given task and reporting easily forgetting things,

    Behaviour and decision-making: He cannot make any decision or having in-advance planning,

    Work and training capacity: It is my opinion that he remains unable to train or gets [sic] prepare in any new employment situation and he is unfit for any type of part-time or full-time work.[4]

    [4] Exhibit A1.

21. At the Tribunal hearing on 31 January 2018, Mr Joneidi was able to participate in his hearing for almost five hours. He answered questions, although he noted problems with his memory and became distressed when sharing information with the Tribunal about his difficult childhood experiences and his family relations. Mr Joneidi confirmed to the Tribunal that he received carer’s payment and carer’s allowance to provide care for his parents from January 2010 to July 2017, although he said that his wife and daughter assisted him with his care obligations. Mr Joneidi currently lives with his (ex) wife and her daughter. He told the Tribunal he separated from his wife approximately three months ago but they still reside in the same townhouse. He said that financial pressure due to a reduction in his social security benefits had contributed to his separation from his wife.

22. Mr Joneidi provided evidence to the Tribunal that he is able to prepare his own (albeit simple) meals at home and goes out for lunch. He can drive a car short distances to the local shops and take public transport. He travelled to the Tribunal by train, a trip of more than 30 minutes. He confirmed that he travelled to Iran with his wife and step-daughter for six weeks in September–November 2015 and September–November 2016 to visit family and seek medical advice. Mr Joneidi also said he travelled to Iraq in November 2017 to undertake a pilgrimage.

23. The Secretary contended that there is no evidence Mr Joneidi was engaging in appropriate ongoing treatment in the 18 months prior to his claim apart from the use of medication.[5] The Secretary relied on Mr Joneidi’s Medicare records that show he did not visit Dr Pishyar after 28 September 2014 until 18 March 2016.[6]

    [5] Secretary’s Statement of Facts and Contentions dated 22 November 2017, para 43.

    [6] Exhibit R1.

24. Based on the medical evidence before the Tribunal, I am satisfied that Mr Joneidi’s mental health condition was fully diagnosed, but not fully treated and fully stabilised during the claim period. In making this finding, I particularly note Dr Asar’s description that Mr Joneidi’s depression ‘still has not stabilised’. I also find there is no medical evidence that Mr Joneidi was receiving counselling treatment in the 14 months prior to his claim for the disability support pension or during the claim period.

    Bilateral knees osteoarthritis

25. Dr Asar reported on 4 December 2015 that Mr Joneidi has suffered from bilateral knees osteoarthritis. He noted the condition started in 2009 and was fully diagnosed in 2012. Mr Joneidi has been under the care of Dr Mark Liew (rheumatologist) and his condition has been treated with physiotherapy and non-steroidal anti-inflammatory drugs. Dr Asar reported no improvement in Mr Joneidi’s condition.

26. Dr Liew provided two reports dated 29 August 2013 and 5 February 2014. In his report on 29 August 2013, Dr Liew diagnosed Mr Joneidi with ‘early osteoarthritis knees in particular to patellofemoral joints’ and proposed management strategies to reduce stress on the patellofemoral joint and strengthening exercises.[7]  On 5 February 2014, Dr Liew diagnosed ‘bilateral patellofemoral arthralgia of osteoarthritis’ and set out further management options including trialling patella femoral strapping.[8] Dr Liew described that Mr Joneidi reported ‘difficulty with sustained standing or walking and great difficulty rising from sitting’.

    [7] Exhibit T16.

    [8] Exhibit T17.

27. Dr Shane Connelly (radiologist) concluded from a MRI scan of Mr Joneidi’s left knee on 28 November 2015 that:

    1.    There is marked intrasubstance degenerative at the body of the medial meniscus with a complex tear junction of the body and posterior horn and medial displacement of the body of the medial meniscus.

    2.    Bulging of the medial collateral ligament in association.

    3.    Early chondral loss present medial compartment.

    4.    Chondral loss 50% medial patella articular surface.

    5.    Joint effusion.[9]

    [9] Exhibit T19.

28. A Job Capacity Assessment (JCA) Report dated 29 February 2016 considered Mr Joneidi’s bilateral knees osteoarthritis was fully diagnosed, fully treated and fully stabilised during the claim period as ‘reasonable treatment ha[d] been sought’.[10]

    [10] Exhibit T22.

29. At the Tribunal hearing, Mr Joneidi explained that he has constant pain in his knees despite taking pain medication and wearing supportive knee braces. He uses a walking cane for assistance. Mr Joneidi resides in a townhouse with 17 stairs. He told the Tribunal that he has great difficulty climbing stairs but has no choice because the staircase connects the living area and bedrooms; he explained that he climbs and descends the stairs slowly while holding onto the railing with both hands.

30. Mr Joneidi was able to travel to the Tribunal hearing by train, to fly between Australia and Iran in 2015 and in 2016, and to fly to Iraq in 2017. He told the Tribunal that he was able to lift suitcases, walk short distances and fly for 12 hours with the assistance of pain medication and occasionally standing up on the plane. He noted that he is unable to stand for more than 10 minutes and regularly uses a walking cane.

31. Based on the medical evidence, I am satisfied that Mr Joneidi has bilateral knees osteoarthritis that was fully diagnosed, fully treated and fully stabilised during the claim period. I have regard to the information set out in Table 3 – Lower Limb Function of the Impairment Tables Determination and am satisfied he meets the descriptors for 5 points.

    Spinal and neck condition

32. Dr Asar reported on 4 December 2015 that Mr Joneidi has C6-C7 cervical disc protrusion, C7 nerve root compression, which causes left sided neck pain radiating to his left arm. He also noted Mr Joneidi has lower back pain.

33. A report by Dr M Dowla (consultant in neurology and clinical neurophysiology) on 31 May 2013 confirms that an MRI of the cervical spine undertaken on 28 May 2013 shows ‘left C6/7 paracentral foraminal disc osteophyte causing moderate to severe stenosis…impinging on the exiting left C7 nerve root’.[11] A review of Mr Joneidi reported by Dr Dowla on 2 August 2013 concluded ‘no evidence of focal or generalised neuropathy or radiculopathy’ and suggested a ‘left C7 perineural block’.[12]

    [11] Exhibit T29.

    [12] Exhibit T29.

34. There is no other medical evidence before the Tribunal. In particular, there is no medical evidence or information about further treatment options or the functional impact of Mr Joneidi’s spinal and neck condition.

35. At the Tribunal hearing, Mr Joneidi expressed his frustration about the requirement for further medical evidence. He said he takes medication to manage his pain and undertakes daily exercises at the local swimming pool. In relation to the functional impact, Mr Joneidi confirmed he is able to turn his head from side to side when driving his car, pick up items from a coffee table and undertake overhead activities such as washing his hair. He was able to remain seated for the duration of the Tribunal hearing, although he mentioned this was a gesture of respect to the Tribunal and not because he was able to sit without pain.

36. Based on the medical evidence before the Tribunal, I am satisfied that Mr Joneidi’s spine and neck condition was fully diagnosed, fully treated and fully stabilised during the claim period. Having regard to the information set out in Table 4 – Spinal Function of the Impairment Tables Determination, there is no corroborative medical evidence before the Tribunal to show Mr Joneidi experiences functional impact from his spinal condition and the Tribunal assigns nil points.

    Benign prostatic hypertrophy

37. In his report dated 4 December 2015, Dr Asar noted Mr Joneidi had suffered from benign prostatic hypertrophy since 2009. This is confirmed in a report by Dr Simon Bariol (urological surgeon) on 28 October 2009 that stated Mr Joneidi has symptoms of benign prostate enlargement and commenced him on medication.[13] There is no further medical evidence before the Tribunal.

    [13] Exhibit T29.

38. Mr Joneidi told the Tribunal that he continues to take medication for this condition but it is not effective. However, he has not discussed this further with his general practitioner and does not want to undertake surgery.

39. Based on the medical evidence, the Tribunal is satisfied this condition was fully diagnosed, fully treated and fully stabilised during the claim period. With reference to Table 13 – Continence Function in the Impairment Tables Determination, I assign nil points for this condition because Mr Joniedi is continent of bladder and bowel.

    Obstructive sleep apnoea

40. Dr Asar noted on 4 December 2015 that Mr Joneidi has moderate obstructive sleep apnoea.

41. Mr Joneidi filed additional medical reports with the Tribunal that show he underwent an overnight diagnostic sleep study at Westmead Hospital on 31 March 2017. This study concluded Mr Joneidi has ‘moderate obstructive sleep apnoea, increased in frequency of events in the supine posture, associated with mild arterial oxygen desaturation’.[14]  A further report by Dr Tri Ha-Mihn (consultant thoracic physician) dated 22 September 2017 noted Mr Joneidi had a continuous positive airway pressure (CPAP) titration study at Westmead Hospital in May 2017.[15]

    [14] Exhibit A3.

    [15] Exhibit A2.

42. At the Tribunal hearing, Mr Joneidi confirmed he uses a chin strap device and is seeking to access a CPAP machine. He stated his condition of sleep apnoea further exacerbates his suffering.

43. Based on the medical evidence, I am not satisfied Mr Joneidi’s condition of sleep apnoea was fully diagnosed, fully treated and fully stabilised during the claim period. Therefore, I am unable to assign any points for these conditions in accordance with the Impairment Tables Determination.

    CONCLUSION

44. For the reasons set out above, I am satisfied that Mr Joneidi did not meet the requirements of paragraph 94(1)(b) of the Act during the claim period as his impairments were not rated at 20 points or more under the Impairment Tables.

45. As I find that Mr Joneidi did not qualify for the disability support pension during the claim period, it is not necessary for me to consider whether he had a continuing inability to work.

46. If Mr Joneidi’s circumstances change, he is entitled to submit a new application for the disability support pension.

    DECISION

47. The decision under review is affirmed.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated: 14 February 2018

Date(s) of hearing:	31 January 2018
Applicant:	In person
Solicitors for the Respondent:	Ms S Sangha, Department of Human Services