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

[2016] AATA 100

Khalouf and Secretary, Department of Social Services (Social services second review) [2016] AATA 100 (24 February 2016)

Division	GENERAL DIVISION
File Number(s)	2015/0864
Re	Ali Khalouf
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr I Alexander, Member
Date	24 February 2016
Place	Sydney

The Tribunal affirms the decision under review.

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

Dr I Alexander, Member

CATCHWORDS

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

24 February 2016

1. Mr Khalouf is a 63 year old man, who was sentenced to a term in prison from February 2000 and released on parole in August 2013.

2. On 19 May 2014 Mr Khalouf lodged a claim for Disability Support Pension (DSP) on the basis that he suffered several medical conditions which were having an impact on his ability to function.

3. 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 (Cth) (“the Act”) because his impairment was not 20 points or more under the Impairment Tables.

4. In a decision dated 6 February 2015 the former Social Security Appeals Tribunal (“SSAT”) found that Mr Khalouf had a total impairment rating of 5 points under Impairment Table 4 on the basis that his lumbar spine condition had a mild impact on activities involving spinal function.

5. Accordingly Mr Khalouf’s impairment was not 20 points or more under the Impairment Tables so that he did not satisfy 94(1)(b) of the Act.

6. In these proceedings Mr Khalouf seeks review of the SSAT decision.

7. Mr Khalouf attended the hearing by telephone and was self-represented but assisted by his daughter. Mr Khalouf had declined the assistance of an Arabic language interpreter.

   ISSUES

8. In order to qualify for DSP, Mr Khalouf 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, that is, between 19 May  2014 and 18 August  2014 (the claim period).

9. 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 of 20 points or more under the Impairment Tables; and

   (c)the person has a continuing inability to work as defined by the Act.

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

11. The medical conditions suffered by Mr Khalouf during the claim period include a mental health condition, a lumbar spine condition, a heart condition, non-insulin dependent diabetes, gout, hypertension and hypercholesterolemia.

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 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)).

14. 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”.

15. 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)”.

16. Therefore, the definitive issue for the Tribunal is whether during the claim period Mr Khalouf had an impairment of 20 points or more under the Impairment Tables and, if so, whether he had a continuing inability to work. 

    Mental Health Condition

17. Mr Khalouf told the Tribunal that a prison doctor started him on antidepressant medication, Zoloft, in about 2011 but was no longer taking the medication when he was released on parole in August 2013.

18. In a Centrelink Medical Report dated 10 October 2013 Dr Aloe, GP, lists “severe depression & anxiety” as a condition with most impact and describes impact on ability to function as “tiredness and depression” but no provides other details.

19. Mr Khalouf stated that Dr Aloe started him back on Zoloft in October 2103.

20. In two Centrelink Medical Certificates dated 17 January 2014 and 31 March 2014, Dr Aloe lists “Severe depression and adjustment disorder” as a medical condition which impacts on Mr Khalouf’s capacity for work or study and notes symptoms of depressed mood, insomnia, tiredness, headache, anxiety, and treatment as “Zoloft”.

21. I note that Dr Aloe did no list any other medical conditions in these certificates.

22. In a Job Capacity Assessment (JCA) report the submitted on 17 October 2013  the assessor notes inter alia the following:

    The client has been diagnosed with anxiety and depression….The client reported that he developed symptoms of depression related to being incarcerated. The diagnosis was confirmed through psychiatric and psychological review while the client was in the corrective centre. The client reported last reviewing with his psychiatrist in 2008 and indicated he received intermittent counselling throughout his time in gaol.  

23. In a letter dated 19 November 2013 Dr Allam, psychiatrist, states that “He was up front and asked for a letter to the DSP i saw him only once and as i am going to stop private practice …. i think he will need to follow up with another colleague”. [sic] 

24. Dr Allam makes a diagnosis of “Depression mild to moderate” and recommends an increase in the dose of Zoloft from 50 mg to 100mg. 

25. In a Centrelink Medical Report dated 13 May 2014 Dr Aloe lists “chronic depression & anxiety” as a medical condition with most impact, notes current treatment as Zoloft and describes impact on ability to function as “tiredness, depressed mood & adjustment difficulty”.

26. In a letter dated 12 September 2014 Dr Philips, Psychiatrist, states that Mr Khalouf  was diagnosed as suffering from depression by Dr Allam, is being treated with sertraline 100mg, and has started seeing a psychologist, Ms Allaw.

27. Dr Philips notes that Mr Khalouf “continues to feel depressed because of the restrictive nature of his Parole condition…. is also stressed about his medical conditions…. and is due to have heart surgery next week…. mentioned that he does ‘nothing at home.... tries to walk at least 1 hour every day…. is trying to find work which can comply with the conditions.”

28. Dr Philips states that there is “no evidence of pervasive low mood, psychosis, mania, PTSD, OCD or other anxiety disorders”, concludes that Mr Khalouf “is presenting with symptoms suggestive of an adjustment disorder with depressed mood”, changes his medication from Zoloft to mirtazapine 30 mg, and recommends continuing psychotherapy.

29. Mr Khalouf told the Tribunal that he saw Dr Philips on only one occasion but regularly sees a psychologist, Ms Allaw.   

30. In a letter dated 5 November 2014 Ms Allaw, registered psychologist, states that Mr Khalouf “satisfied the diagnosis of “Major Depressive Disorder” and has been receiving a “course of psycho-intervention where the main intervention method used for her [sic] distressing symptoms in the form of Cognitive Behavioural Therapy (CBT)”.

31. A letter dated 20 May 2015 and signed by Mr Girgis, clinical psychologist and Ms Allaw, registered psychologist, states that Mr Khalouf has been a client of the Pain and Trauma Clinic since July 2014 “where he has been attending appointments on regular basis every fortnight” but goes on to say that his initial assessment was conducted “on 8th August”.

32. In a letter dated 30 November 2015 Ms Allaw confirms that Mr Khalouf suffers from Major Depressive Disorder as well as symptoms of anxiety.  The main contributing factor is considered to be the ‘long sentencing period he spent in jail’. For  “the last 18 months”  he has been usually compliant with a CBT program which is described as “an evidenced based approach that aims to teach a person new skills, on how to solve problems concerning dysfunctional emotions, behaviours and cognitions through a goal oriented, systematic procedure. CBT has been shown to be an extremely effective treatment approach for conditions such as depression & anxiety”.     

    Consideration

33. The Respondent contends that during the claim period Mr Khalouf’s mental health condition was not fully diagnosed, fully treated and fully stabilised. 

34. I accept that Mr Khalouf currently suffers a mental health condition with symptoms of depression and anxiety.

35. I also accept that during his time in prison Mr Khalouf suffered symptoms of depression. Whether his symptoms met the Diagnostic Criteria for Major Depressive Disorder is unclear as there is no corroborative evidence before the Tribunal.

36. In November 2013 Dr Allam diagnosed “depression mild to moderate” which suggests a lesser severity of symptoms that is currently being claimed.

37. In his letter 12 September 2014, after the end of the claim period, Dr Philips appears somewhat uncertain of the diagnosis and states that Mr Khalouf’s symptoms are “suggestive” of Adjustment Disorder with depressed mood.

38. Mr Girgis and Ms Allaw state Mr Khalouf’s symptoms are consistent with the Diagnostic Criteria of Major Depressive Disorder.

39. Notwithstanding the uncertainty about the diagnosis, for present purposes, I accept that during the claim period Mr Khalouf’s mental health condition was fully diagnosed and that the diagnosis was probably Major Depressive Disorder. 

40. However, on consideration of the evidence provided to the Tribunal I am not persuaded that during the claim period Mr Khalouf’s mental health condition was fully treated, and fully stabilised.

41. It would appear that during his time in prison Mr Khalouf received only limited treatment for his symptoms and after being released on parole his only treatment was Zoloft which was started in October 2013. Dr Philips changed Mr Khalouf’s medication in September 2014 and recommended psychotherapy. A CBT program was not started until August 2014, at the end of the claim period, and continued for more than 12 months.

42. I accept Ms Allaw’s statement that CBT has been shown to be “an extremely effective treatment approach for conditions such as depression & anxiety” which leads to a conclusion that during the claim period Mr Khalouf’s mental health condition was not fully treated and fully stabilised so that a rating under the Impairment Tables cannot be applied.

    Back Pain/ spinal function 

43. Mr Khalouf claims that he suffers chronic lower back pain which causes significant impairment.

44. A CT scan of the lumbar spine performed on 19 January 2011 is reported as showing “minor bulging of the posterior disc osteophyte complex. There is no significant canal stenosis however mild lateral recess narrowing is seen. Moderate neural exit foraminal stenosis is seen, worse on the left side with evidence of likely left L5 nerve root compression. Further assessment with an MRI is suggested.”

45. A lumbar spine x-ray performed on 29 October 2013 is reported as showing “moderate multilevel anterior and lateral osteophyte formation. No disc narrowing is seen”.

46. In a letter dated 6 February 2014 Dr Maniam, orthopaedic surgeon, states that Mr Khalouf has suffered “chronic lumbar spine pain” for several years. On examination he notes “Movements restricted in forward flexion and extension with lateral flexion and rotation in the extreme limits inducing pain. There was hyperreflexia at the knees but sensation were normally appreciated”.

47. Dr Maniam concludes that “the problems appear to be due to advancing degenerative changes but there is also a suggestion of impingement with the findings of hyperreflexia at the knees. For completion I have asked him to obtain a MRI. In the interim he will commence on physiotherapy for pain relief and for strengthening program.”

48. I note Dr Maniam does not address the issue of functional impairment.

49. In his report of 13 May 2014 Dr Aloe lists “chronic back pain due to lumbar disc root irritation & OA” as a medical condition that causes significant functional impact and describes impact on ability to function as “back pain and disabling neck and shoulder pain morning stiffness” but provides no other details.

50. In the JCA report of 12 June 2014 the assessor notes inter alia the following:

    “Symptoms include severe back pain, stiffness and pain in both legs. The client reported being unable to stand for more than 10 minutes…..being able to sit for 30 minutes …..is able to bened over and pick up light objects and reported being unable to lift more than 10 kg. The client is able to dress and shower himself….”

51. The SSAT notes inter alia the following:

    “Mr Khalouf has been suffering back pain for more than 20 years. It is getting worse……He cannot bend down, cannot carry anything heavier than one kilogram and has pain when seated. Mr Khalouf feels uncomfortable when walking, sleeping and sitting..… Mr Khalouf is able to reach up to retrieve up to retrieve a book from a shelf at head height but the manoeuvre is painful. He has to be careful when bending down to pick up something on the floor because his back hurts. When driving Mr Khalouf is able to turn his head from side to side…… Mr Khalouf lives alone…… cannot undertake household chores such as sweeping, vacuuming and cooking. Hid adult children come to carry out these activities….. Mr Khalouf lives alone. He is able to look after himself but it takes him along time to have a shower and get dressed. Apart from driving to visit his various family members who live nearby, Mr Khalouf does not go out very often…. on an average day Mr Khalouf spend time having coffee, smoking, watching television, walking around the yard and going to the shops….”

    Consideration

52. The evidence with respect to Mr Khalouf’s lumbar spine condition is somewhat limited and tends to suggest that during the claim period the condition was not fully treated and fully stabilised.

53. For present purposes, however, I accept that, during the claim period, the condition was permanent within the meaning of the Impairment Determination.

54. The evidence with respect to functional impact is essentially self-reported and on consideration of the descriptors in Impairment Table 4 suggests a mild to moderate impairment.

55. Accordingly, I am satisfied that a rating of no more than 10 points under Impairment Tables would be appropriate.

    Heart condition

56. Mr Khalouf has suffered intermittent angina for many years.  

57. In January 2003 Mr Khalouf was admitted to Long Bay Hospital for assessment and observation of “unstable angina” following an episode of chest pain on the previous day.

58. The discharge report notes that he had suffered ischaemic heart disease for some years and that in 1999 angiography showed “30% stenosis of the L coronary circumflex artery”. Progress ECG’s and cardiac enzymes showed no evidence of any infarct or ischaemia.

59. In November 2006 Mr Khalouf was admitted to Lithgow District Hospital because of chest pain. The hospital record notes that he suffered an “AMI 15 years ago →had angiogram & ? 1 vessel angioplasty …→.infrequent angina since usually relieved with anginine’. He was discharged the following day on his usual medication.

60. On September 2010 Mr Khalouf was admitted to Hawkesbury Private Hospital because of chest pain. ECG showed no acute ischaemic changes and cardiac enzymes were negative. He was discharged the following day.

61. On 16 June 2013 Mr Khalouf was referred by a registered nurse in Justice Health or assessment of acute chest pain. Tribunal has not been provided with any other records with respect to this episode.

62. In a letter dated 28 October 2014 Dr Charbel, cardiologist states inter alia the following:

    “I reviewed Mr Kahlouf today. His chest pain persist and now it seems more frequently. It happens mainly with exercise and improves with resting. Unfortunately he is still smoking. His coronary angiogram has revealed minor disease in the left main LAD….on stress echocardiogram Mr Khalouf exercised for 4 minutes and 49 seconds ……reaching 7.6 mets  and 68% predicted maximum heart rate…the test had to be stopped secondary to dspnoea and chest pain ….. there were no significant ST segment changes …….I explained to Mr Khalouf that his symptoms seen to have worsened and his stress test was inconclusive …..I asked him to increase the Noten to 50mg and I encouraged him to use GTN spray as needed …..I have referred him to have an angioplasty to LCx artery which hopefully will improve his symptoms.”

63. In a letter dated 23 April 2015 Dr Aloe  notes “17 November 2014  Angioplasty – coronary (with stent)”

64. The evidence provided to the Tribunal clearly demonstrates that as at 28 October 2014, more than 2 months after the end of the claim period, Mr Khalouf’s heart condition was not fully treated and fully stabilised so a rating under the Impairment Tables cannot be applied.

    Other medical conditions

65. In his report of 13 May 2014 Dr Aloe lists, hypertension, hypercholesterolemia, diabetes, gout, arthritis as medical conditions that are generally well managed and that cause minimal or limited impact.

66. For present purposes I accept that these conditions are permanent within the meaning of the Impairment Determination. In my view, however, the limited evidence before the Tribunal with respect to these conditions does not allow for any reasonable assessment of functional impact during the claim period so that a rating under the Impairment Tables cannot be applied.

    DECISION

67. For the reasons set out above, I am satisfied that the during the claim period, Mr Khalouf’s impairment was not 20 points or more so that he did not satisfy s 94(1)(b) of the Act and did not qualify for DSP.

68. The decision under review is affirmed.

I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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

Associate

Dated 24 February 2016

Date(s) of hearing	4 February 2016
Applicant	By phone
Solicitors for the Respondent	Department of Human Services