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

[2015] AATA 484

Jouda and Secretary, Department of Social Services (Social services second review) [2015] AATA 484 (7 July 2015)

Division	GENERAL DIVISION
File Number(s)	2014/2562
Re	Ihsan Jouda
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	7 July 2015
Place	Sydney

The Tribunal affirms the decision under review.

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

Dr Ion Alexander, Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – 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

REASONS FOR DECISION

Dr Ion Alexander, Member

7 July 2015

BACKGROUND

1. On 9 March 2011 Mr Jouda 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. On 2 May 2011 an Authorised Review Officer (ARO) rejected Mr Jouda’s claim on the basis that he did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) (“the Act”). In particular he did not satisfy section 94(1)(b) of the Act, in that his impairment rating was not 20 points or more under the Impairment Tables. Also, he did not satisfy the Australian residency requirements for DSP.

3. On 21 August 2013 Mr Jouda lodged a new claim for DSP and in his claim form dated 2 July 2013 he listed various several disabilities including “low back pain, neck pain, depression, right knee pain, right shoulder pain, bronchial asthma, gastro-oesophageal reflux, allergic rhinitis, inguinal hernia and flat feet”.

4. On 16 September 2013 Mr Jouda’s claim for DSP was rejected by Centrelink on the basis that he did not meet the Australian residence requirements for this payment.

5. On 13 February 2014 an ARO rejected Mr Jouda’s claim or DSP on the basis that there was no jurisdiction to review the earlier ARO decision and that he was not “medically qualified” for DSP under section 94 of the Act.

6. On the 22 April 2014 the Social Security Appeals Tribunal (“SSAT”) decided that Mr Jouda did not satisfy section 94(1)(b) of the Act, in that his impairment rating was not 20 points or more under the Impairment Tables.

7. In this proceeding Mr Jouda seeks review of the SSAT decision of 22 April 2014.

8. At the hearing Mr Jouda was self-represented and was assisted by an Arabic language interpreter.

   ISSUES

9. In order to qualify for DSP, Mr Jouda 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 the requirements of the Social Security (Administration) Act 1999, that is, between 21 August 2013 and 20 November 2013 (the claim period).

10. 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 20 points or more under the Impairment Tables; and

    (c)one of the following applies;

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

11. The Respondent conceded that Mr Jouda suffers a medical conditions that cause impairment and therefore satisfied section 94(1)(a) of the Act.

12. 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)).

13. For the purposes of paragraph 6(3)(a) a condition is permanent if the condition 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)).

14. Table 5 of the Determination is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition. The Introduction to Table 5 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. Also, the Introduction to each Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.

16. The Respondent conceded that Mr Jouda suffered cervical spine, lumbar spine and mental health conditions that were permanent within the meaning of the Impairment Determination as at the date of claim.

17. The Respondent submits Mr Jouda had a rating of five points under Table 4 for the spine condition and five points under Table 5 for his mental health condition.

18. The Respondent submits that, during the claim period, all the other disabilities listed by Mr Jouda were not fully diagnosed, fully treated and fully stabilised so that a rating under the Impairment Tables cannot be applied.

19. The Respondent submits that if the Tribunal were to find that Mr Jouda’s impairment rating during the claim period was 20 points or more, he did not satisfy section 94(1)(c) of the Act in that he did not have a continuing inability ability to work.

20. The Respondent further submits that if the Tribunal found that Mr Jouda did have a continuing inability ability to work he did not the satisfy the residency requirements of section 94(1)(e) of the Act.

21. In a document dated 10 October Ms Cannon, solicitor for Legal Aid NSW, provided written submissions in support of Mr Jouda’s claim.

22. It is submitted that the medical evidence supports the finding of the SSAT that Mr Jouda’s mental health condition should be awarded 10 points under Impairment Table 5 and supports a higher 10 point rating under Impairment Table 4 for his neck and back conditions.

23. It is submitted that during the claim period Mr Jouda did satisfy section 94(1)(c) of the Act in that his work capacity was less than 15 hours per week and he had completed the program of support (POS) requirements.

24. At the hearing the Respondent conceded that Mr Jouda had completed the POS requirements but maintained that during the claim period he had a work capacity of between 15-22 hours per week within two years with intervention.

25. It is submitted that pursuant to section 94(1)(e) of the Act Mr Jouda was an Australian resident at the time he first satisfied section 94(1)(c) of Act.

26. The Respondent’s submission that during the claim period Mr Jouda’s other medical conditions were not fully diagnosed, treated and stabilised is not challenged by Mr Jouda.

27. It follows that I must consider whether during the claim period Mr Jouda’s impairments rated 20 points or more under the Impairment Tables. If Mr Jouda meets this requirement then I will need to determine whether he has a continuing inability to work. If this requirement is met, I will need to determine whether he satisfied the residency requirements pursuant to section 94(1)(e) of the Act.

    EVIDENCE

    Mr Jouda’s Mental Health Condition

28. In a letter dated 12 January 2013 Dr Alhajali, consultant psychiatrist, concluded that Mr Jouda suffers from chronic PTSD and chronic panic disorder.

29. Dr Alhajali notes the following :

    Mr Jouda feels anxious and frightened for most of the time… He has recurrent nightmares and chronic insomnia and reports recurrent flashbacks and intrusive memories… He avoids leaving the house or mixing with others, and avoids watching TV or reading news that reminds him of the past… He reports gradual decline in memory and becoming more forgetful… He feels down and depressed intermittently… and also complains of chronic symptoms of panic attacks.

30. In a letter dated 16 April 2014 Dr Abu Arab, clinical psychologist, notes that he first saw Mr Jouda in September 2010 and has since been under his care.

31. Dr Abu Arab makes a diagnosis of Chronic PTSD and major depression. He provides a comprehensive assessment of the impact of this condition on Mr Jouda’s activities involving mental health function with specific reference to the descriptors in Impairment Table 5 and concludes that there is moderate impairment with a rating of 10 points.

32. The SSAT also concluded that Mr Jouda’s mental health condition was having a moderate impact on function on the basis that  “his need for some support in self-care, that he has no recreational activities, difficulties with interpersonal relationships, difficulties with concentration and recent memory and no ambition to work” and applied 10 points under Impairment Table 5.

33. The Respondent submits that Dr Abu Arab’s report was written outside the claim period and therefore does not provide an assessment relevant to the claim period.

34. It is, in my view, unreasonable to suggest that a report written less than five months from the end of the claim period in the context of a chronic mental health condition is irrelevant, and therefore I do not accept the Respondent’s submission.

35. I am satisfied that there is sufficient evidence before the Tribunal to conclude that during the claim period there was a moderate functional impact on Mr Jouda’s activities involving mental health function and that a rating of 10 points under Impairment Table 5 can be applied.

    Mr Jouda’s Spinal Condition

36. At the hearing Mr Jouda’s evidence in response to questions from the Tribunal was not very helpful. Although assisted by an Arabic language interpreter he was unable to provide a reasonable and consistent description of either his past or current impairment caused by his cervical and lumbar spine condition.

37. He told the Tribunal that he suffers constant pain which significantly restricts his capacity to sit, stand and walk and needs daily pain medication which he said was of little benefit. He claimed that has difficulty turning his head from side to side and that his neck movements are so limited by pain and that he can bend his neck forward to read a book for only five minutes. He said that he can go up steps one at a time by hanging on to the hand rail but attributed this difficulty to problems with both of his knees.  When asked what sort of help he needed with self-care Mr Jouda said that he needs help with “everything”.

38. In the report of a Job Capacity Assessment (JCA) performed on the 28 August 2013 the assessor noted that Mr Jouda reported that he had

    chronic lower back pain which impacted upon his tolerance for standing (5-10 minutes)…was independent in self care activities such as showering and dressing however lifted his feet on the bath tub to wash them… [and] in order to bend he initially sits onto a chair, before bending down.

39. The assessor noted that Mr Jouda was observed to sit for more than 45 minutes during the assessment without visible discomfort or change in posture.

40. Mr Jouda told the assessor that he walked to his JCA appointment from home, has not driven a vehicle for two years due to back pain, attends to grocery shopping, and previously would walk to the library and spend time using the computers and internet but no longer did this.

41. Mr Jouda told the SSAT that he has suffered chronic neck and low back pain for many years but that his lower back pain has deteriorated in the last two years, so that he has constant pain especially on his right side. He claimed that the pain is aggravated by walking for more than five minutes, standing for more than 15 minutes and sitting for more than 10 minutes. He stated he can bend to knee level but to pick up an item from the floor he needs to bend his knees and is unable to sustain activities above head height partly because of shoulder pain.

42. Mr Jouda told the SSAT that he lives with his ex-wife in the centre of Liverpool and walks to the shop or Centrelink because he has not driven for two years. He said that he can use public transport, cleans his own room and does his own activities of daily living independently with some assistance from his ex-wife.

43. The SSAT concluded that the impact on spinal function had not reached the moderate level because Mr Jouda could pick up a light object at knee height and get up from a chair unaided and demonstrated a reasonable range of neck movements and awarded a rating of five points under the Impairment Table 4.

44. It is submitted on behalf of Mr Jouda that the medical evidence, namely the  reports of Drs Ibrahim, Pillay, Abraszko and Giblin, support  a higher  rating of 10 impairment points under Table 4.

45. In a medical certificate dated 22 April 2013 Dr Ibrahim, Mr Jouda’s GP, lists right shoulder pain, chronic low back pain and chronic right knee pain as conditions impacting on Mr Jouda’s capacity for work.

46. Relevantly I note that there is no mention of a cervical spine condition.

47. In a report dated 28 May 2013 Dr Ibrahim makes a diagnosis of “chronic low back pain secondary to discogenic a L4-5 level + compression on L4 root, plus L4 facet joint arthropathy”.

48. Dr Ibrahim notes current symptoms as “low back pain, stiffness, decreased range of movements of the lumbosacral spine – radiation of pain, pins and needles to lower limbs.”

49. Dr Ibrahim notes impact on ability to function as “his lower back pain affects his movements and dexterity including walking, bending, sitting and standing, lifting and manipulating objects”.

50. The report also notes “chronic neck pain secondary to discogenic at C5-6” as a condition having a significant functional impact but provides no other relevant information.

51. The report of an MRI scan dated 17 March 2010 concludes as follows:

    Mild L4-5 and L5-S1 disc bulges and degenerative facet changes are present. The L4-5 disc bulge appears to touch the L4 nerve roots in a far lateral location bilaterally but the nerve roots do not appear compressed and no other significant spinal canal or neural exit foramen stenosis is noted.

    The report of the MRI scan of the cervical spine was not provided to the Tribunal.

52. In a report dated 14 January 2013 Dr Pillay compared the current MRI scan of the cervical and lumbar spine with the earlier scan performed in March 2010. Dr Pillay described similar findings in both scans and comments that there are “stable degenerative changes in the cervical and lumbar region. Possible far lateral contact of the exiting L4 nerve roots due to broad-based intervertebral disc bulge and facet hypertrophy”. There is no suggestion in the report that there has been any significant radiological change in intervening three year period.

53. A whole body bone scan and SPECT CT of the lumbosacral spine performed 25 January 2013 was reported as showing “mild arthritic changes in the right L4/5 facet joint and in the medial compartment of the right knee”.

54. In a brief letter dated 28 March 2013 Dr Abraszko, neurosurgeon, noted that Mr Jouda complains of pain in the lower back, mainly on the right side and neck pain.

55. Dr Abraszko noted a normal neurological examination and described the MRI findings of the lumbar spine as “a small disc bulge a L4/L5 level, mainly slightly compressing the L4 nerve root on the right side” and the bone scan findings as “L4/L5 facet joint arthropathy and inflammation which corresponds to his symptoms.” She also noted that the MRI of the neck showed a small bulge of the C5/C6 disc and that the “discs are all very small and do not require surgery”.

56. Dr Abraszko recommended physiotherapy and complex pain management with a pain specialist, Dr Manohar.

57. Dr Abraszko made no reference to any functional impairment with respect to either the cervical or lumbar spine.

58. In a letter dated 6 November 2013 Dr Giblin, orthopaedic surgeon, notes that he  interviewed Nr Jouda without an interpreter and that he spoke in “broken English”.

59. Dr Giblin understood that Mr Jouda had a four year history of “neck and low back discomfort” with intermittent radiation down the right lower limb which had become worse over the previous twelve months but otherwise his general health was good. He notes that Mr Jouda complains of pain which “is worse with walking, changing positions, coughing, sitting and it bothers him at night”.

60. On examination Dr Giblin noted the following:

    He moves around the room in slight discomfort, he could only forward flex to the hips, straight leg raising was limited bilaterally to 20 degrees whilst lying and I was unable even to flex his knees or flex his hips significantly.  There was an enormous amount of anxiety. Straight leg raising, however, whilst sitting was 90 degrees on the left and 60 degrees on the right. Toes were downgoing and there was no significant reflex change.

61. Dr Giblin did not provide any explanation as to the significance of his examination findings in respect of the lumbar spine and, did not appear to have examined the cervical spine and did not provide a satisfactory assessment of any functional impairment.

62. Dr Giblin noted the reports of the MRI scans and the bone scans and recommended a trial with a right sided L3-S1 facet block about which Mr Jouda was reticent. He concluded that Mr Jouda’s problem was not of surgical nature and suggested he follow Dr Abraszko’s advice and be seen in the Pain Clinic.

    CONSIDERATION

63. Mr Jouda’s self-report of symptoms suggests that his cervical and lumbar spine conditions have a moderate to severe impact on his activities involving spinal function.

64. The difficulty for Mr Jouda is that, in my view, the medical evidence before the Tribunal does not provide a satisfactory explanation for the claimed persistence and severity of his symptoms.

65. In his report of 28 May 2013 Dr Ibrahim implies a level of severity of Mr Jouda’s spine conditions which, in my view, is not supported by the reported radiological findings or the opinions of the surgical specialists.

66. Dr Ibrahim’s descriptions of the clinical features and impact on ability to function do not appear to be based on an objective clinical assessment but simply a paraphrase of Mr Jouda’s self-report of symptoms.

67. The findings in the radiological reports do not suggest a severe or progressive degenerative condition of the cervical or lumbar spine and appear to be inconsistent with the functional impact described by Mr Jouda .

68. In her letter of 28 March 2013 Dr Abraszko makes no reference to a history of functional impairment or severity of symptoms. On examination she finds no clinical evidence of neuropathy and concludes that there is no requirement for surgery. She comments that the bone scan findings of L4/L5 facet joint arthropathy and inflammation correspond with Mr Jouda’s symptoms.

69. I presume that Dr Abraszko was referring to the fact that Mr Jouda had indicated that his lower back pain was mainly located on the right side. The comment suggests that she was not aware of the history of functional impairment that Mr Jouda has presented to the Tribunal.

70. In my view, it implausible to suggest that a bone scan reported as showing “mild arthritic changes in the L4/5 facet joint” could explain the claimed severity of Mr Jouda’s impairment.

71. In his letter of 6 November 2013, Dr Giblin notes a history of pain with no reference to functional impairment, does not explain the significance of his examination of the lumbar spine and concludes that there is no surgical problem. He notes the reported findings of the bone scan and recommends a trial facet block which Mr Jouda declined.

72. In my view there is nothing in Dr Abraszko’s or Dr Giblin’s letters which would explain or corroborate the level of impairment as reported by Mr Jouda.

73. On consideration of the evidence it is clear that the difficulty in this matter is the focus on the reported radiological findings. It is well established that abnormalities found on MRI scans of the spine do not necessarily correlate with clinical symptoms and comprehensive clinical assessment is required in order to provide to provide appropriate treatment.

1. In my view there is no convincing evidence before the Tribunal of any reasonable clinical assessment directed at the cause of Mr Jouda’s pain or the claimed functional impairment.

2. In March 2013 Dr Abrasko recommended complex pain management and consultation with a pain specialist. In November 2013 Dr Giblin suggested that Mr Jouda follow Dr Abrasko’s advice and be seen in the Pain Clinic.

3. There is no documentary evidence before the Tribunal to confirm that Mr Jouda has attended a pain clinic and no evidence of any treatment plan.

4. Notwithstanding the Respondent’s concession that cervical and lumbar spine conditions were fully diagnosed, treated and stabilised on my consideration of the evidence I am not persuaded that, during the claim period, Mr Jouda’s “chronic cervical pain” and “chronic low back pain” were fully diagnosed, treated and stabilised. Therefore a rating under the Impairment Tables cannot be applied.

   Other medical conditions

5. Although Mr Jouda has not contested the contentions of the Respondent in respect of his other medical conditions I consider that for present purposes it is appropriate to make some comment.

6. I accept that the conditions of GORD, allergic rhinitis, bronchial asthma and flat feet have been diagnosed but I find that there is insufficient evidence before the Tribunal to come to any reasonable conclusion as to whether, during the claim period, these conditions were fully treated and stabilised or had any functional impact. Accordingly, a rating under the Impairment Tables cannot be applied.

7. In a letter dated 11 April 2014 Dr Gayed notes that Mr Jouda was referred to a surgeon at Liverpool Hospital for bilateral hernia repair. Clearly this condition was not fully treated during the claim period so that a rating under the Impairment Tables cannot be applied.

8. An MRI scan of the right knee performed on the 13 March 2013 is reported as showing an “undisplaced horizontal tear of the posterior horn/body of the medial meniscus. Evidence of previous low grade injury involving the MCL”.

9. In a medical certificate dated 22 April 2013 notes symptoms of “pain in Rt [right] knee, stiffness and increased pain on walking on standing” but provides no other relevant information.

10. In his report of 28 May 2013 Dr Ibrahim mentions this condition but provides no information in respect of treatment or functional impact.

11. In my view there is insufficient information before the Tribunal to come to any reasonable conclusion as to whether, during the claim period, the knee condition was fully treated and stabilised, therefore, a rating under the Impairment Tables cannot be applied.

12. In the medical certificate of 22 April 2013 Dr Ibrahim notes a diagnosis of “Rt shoulder pain secondary to bursitis and rotator cuff syndrome”. Symptoms are described as “pain Rt shoulder, inability to abduct his Rt Arm/Shoulder”.

13. In a letter to Dr Ibrahim dated 4 April 2013 Dr Nabavi, orthopaedic surgeon, stated that Mr Jouda’s right shoulder “has now regained full range of motion, he has some mild discomfort but there is not much else we can do apart from continuing his physical exercises”.

14. There is a clear inconsistency between these two documents and raises concerns as to the reliability of Dr Ibrahim’s medical certificate.

15. There is no other evidence before the Tribunal which would allow for any reasonable conclusion as to the functional impact of this condition during the claim period and therefore a rating under the Impairment Tables cannot be applied.

    CONCLUSION

16. For reasons set out above I am satisfied that, during the claim period, Mr Jouda’s total rating under the Impairment Tables was not 20 points or more so that he did not satisfy the requirements of section 94(1)(b) of the Act and did not qualify for DSP.

    DECISION

17. The decision under review is affirmed.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member

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Associate

Dated 7 July 2015

Date(s) of hearing	9 June 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services