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

[2020] AATA 3751

Lee and Secretary, Department of Social Services (Social services second review) [2020] AATA 3751 (23 September 2020)

Division:GENERAL DIVISION

File Number(s):      2020/1723

Re:Mr Wesley Lee

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Senior Member

Date:23 September 2020

Place:Sydney

The decision under review is affirmed.

........................................................................

Dr I Alexander, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether the Applicant had an impairment rating of 20 points or more ­– decision under review 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 (Cth)

REASONS FOR DECISION

Dr I Alexander, Senior Member

23 September 2020

BACKGROUND

1. On 22 July 2019, Mr Lee lodged a claim for Disability Support Pension (DSP).

2. Mr Lee’s date of birth is unclear[1], however, it is agreed that he is currently more than 65 years old and that by November 2020, he will be at least 66 years old.

   [1] Documents submitted by Mr Lee present conflicting years of birth: A1 states he was born in 1954; and A2 states he was born in 1951.

3. Mr Lee’s claim was rejected by Centrelink, both initially and on internal review, 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 paragraph 94(1)(b) of the Act as his impairment was not 20 points or more under the Impairment Tables.

4. In a decision dated 10 March 2020, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) found Mr Lee did not a have a rating of 20 points or more under the Impairment Tables. The presiding Member noted that it was difficult to assess Mr Lee’s claimed impairment due to a general lack of current relevant documentation.

5. In these proceedings, Mr Lee, who is self-represented and was assisted at the hearing by an interpreter in the Mandarin language, seeks a review of the decision of the AAT1.

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

   ISSUES

7. In order to qualify for 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) (Administration Act). That is, Mr Lee must satisfy the requirements between 22 July 2019 and 21 October 2019 (the qualification period).

8. Subsection 94(1) of the Act provides that a person is qualified for DSP if, relevantly:

   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) …

   d) the person has turned 16; and…

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

10. Mr Lee claimed to suffer a number of medical conditions that cause impairment. In his claim form he described his conditions as “deaf left ear, right ear need hearing aid, serious major depression, high hypertension, cerebrovascular disease, cataract, insomnia”.

11. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Determination) requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” pursuant to paragraph 6(3)(a).

12. For the purposes of paragraph 6(3)(a) of the Impairment Determination, 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, in light of available evidence, to persist for more than 2 years” (paragraph 6(4)(d)).

13. 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”.

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 by a psychiatrist)”.

15. The Respondent contends that, during the qualification period, Mr Lee had a total impairment rating of 0 points under the Impairment Tables and therefore did not satisfy paragraph 94(1)(b) of the Act.

16. Mr Lee submits that, during the qualification period, he had an impairment rating of 20 points under the Impairment Tables.

17. Therefore, the determinative issue in this matter is whether, during the qualification period, Mr Lee suffered an impairment rating of 20 points or more under the Impairment Tables and if so, whether he had a continuing inability to work.

    Mental Health Condition

18. In a letter to Dr Lau dated 14 March 2017, Dr Zhang, Forensic Psychiatrist, stated inter alia, as follows:

    Thank you for referring this male of Chinese descent who previously saw me on several occasions. He has an established diagnosis of major depression. He lives in isolation[2] and has been unemployed.

    On today’s presentation Mr Li reports that he has not been sleeping well and often feels lethargic. He feels physically weak and is unable to walk far. He has no joy or interest at all…

    He has been taking Mirtazapine 30mg nocte and Pristiq[3] 50mg daily however his compliance once again has been erratic due to forgetfulness and amotivation. He attended psychotherapy with a psychologist more than a year ago.

    In my opinion Mr Li remains depressed with the same psychodynamic formulation as we discussed in the past.

    I provided psychoeducation and encouraged him to comply with the medication and engage a psychologist for psychotherapy. I asked him to increase the Pristiq to 100mg and the Mirtazapine to 30mg daily. The dosage of Pristiq could be increased to 150mg or 200mg daily on his clinical response.

    [2] At the hearing, Mr Lee told the Tribunal that he had been living with his new wife and her teenage son since 2016.

    [3] Pristiq – desvenlafaxine.

19. In a letter to Dr Lau dated 3 May 2018, Dr Zhang stated inter alia, as follows:

    Mr Lee had not seen me since the 14^th March 2017.

    On today’s presentation he demanded a letter for his application for a disability support pension.

    Mr Lee reported that he had been depressed, even with Pristiq 150 mg daily and seeing a psychologist on a regular basis. He did not differ from his previous presentations reporting that he had been compliant with the medication and had been suffering from symptoms of amotivation, intermittent suicidal ideation and insomnia.

    On mental state examination he was reasonably presented and this is no different to his previous presentations.

    Considering Mr Lee has been depressed for many years I believe he does have treatment resistant depression (despite not having many psychiatric consultations). His depressive illness could also be perpetuated by his physical health issues and social conditions. As such I believe that he is chronically depressed and it is likely that his depressive mental state will continue, even with treatment.

    I again asked him to see you on a regular basis and continue the psychotherapy.

20. In a brief letter dated 14 May 2018, Dr M H Lau, general practitioner, stated inter alia, as follows:

    The condition as at 8/2/2017 was not treated and not stabilised due to the fact patient stopped treatment and saw another GP in the city.

    He came on 27/2/2017 and requested treatment for his depression and antidepressants were restarted.[4] His depression was seriously treated with compliance under the supervision of psychiatrist[5] and psychologist who saw him on a few occasions... By the time he saw me, it was 7/8/2017 when his antidepressants were maximised[6] and he was complying with treatment. Subsequently, it was proven by 19/10/2017, I feel he has treatment resistant depression and no further treatment was likely to lead to a significant functional improvement.

    [4] Department of Human Services, PBS Patient Summary: mirtazapine was first supplied on 27 February 2017 (2 months’ supply) and Pristiq (desvenlafaxine was first supplied on 25 March 2017).

    [5] Medicare Records: Dr Zhang saw Mr Lee on 14 March 2017 and 3 March 2018.

    [6] Department of Human Services, PBS Patient Summary: No mirtazapine was supplied for about for about 6 months between the end of April 2017 and October 2017.

21. Extracts from Dr Lau’s progress notes read:

    ·On 27 February 2017 – “insomnia, depressed mood… Prescription added: PRISTIQ MR TABLET 50mg 1 mane… he said he stopped antidperssant [sic] for 2 mths[7]… restart: avanza[8] 30mg … see psychiatrist”;

    ·On 16 March 2017 – “seen Dr. Zhen Zhang…. Prescription added: PRISTIQ MR TABLET 100mg 1 daily… PRISTIQ MR TABLET 50mg 1 mane… to motivate and help with med compliance”;

    ·On 7 August 2017 – “depressed not normalised only 25% better increased dose to Avanza to 150mg + Avanza 30mg”;

    ·On 15 August 2017 – “on pristiq 150mg + avanza 30mg…REASSESS MOOD/DEPRESSION, due on 15/10/2017”;

    ·On 19 October 2017 – “check if taking avanza 30mg nocte pristiq 150mg mane... mood only improve [sic] by ¼ so far”; and

    ·23/10/2017 – “complied w pristiq 150mg mane and avanza 30 mg for mths”.[9]

    [7] Department of Human Services, PBS Patient Summary: no record of antidepressant medication prescriptions between 21 October 2015 and 27 February 2017.

    [8] Avanza – mirtazapine.

    [9] Department of Human Services, PBS Patient Summary: This is not consistent with record of prescription supply.

22. In a letter to Dr Lau dated 31 August 2017, Ms Li, psychologist, noted that she was managing Mr Lee’s symptoms with “CBT and IPT counselling” and that “written approval for further sessions will help this patient immensely”.[10]

    [10] Medicare Report: Ms Li saw Mr Lee for seven sessions - 30 March 2017, 20 April 2017, 25 May 2017, 22 June 2017,15 July 2017,15 August 2017 and 12 September 2017. There were no subsequent sessions.

    CONSIDERATION

23. It is agreed that Mr Lee’s mental health condition, “depression”, is fully diagnosed by a psychiatrist.

24. The Respondent contends that during the qualification period, the condition was not fully treated and fully stabilised and therefore, not permanent for the purposes of the Impairment Determination.

25. Mr Lee submits that, during qualification period, his “depression” was fully treated and stabilised. Mr Lee relies on the opinions of Dr Zhang and Dr Lau that he suffers “treatment resistant depression”.

26. The opinions appear to be based on an assumption that Mr Lee had been unresponsive to pharmacotherapy for some time and, between February 2017 and October 2017, he was fully compliant with his antidepressant medication and psychotherapy with no apparent benefit to his symptoms.

27. However, the available evidence indicates that between October 2015 and February 2017, there was no antidepressant medication supplied to Mr Lee, which tends to suggest that he was not fully compliant with his medication. Also, apart from the seven treatments with Ms Li during 2017, there is no evidence of any other psychotherapy over a period of at least 5 years.

28. I note that in Dr Lau’s practice progress notes, which can best be described as somewhat superficial, he recorded that Mr Lee’s depression had “improved” by 25%.

29. The proposition that during the qualification period Mr Lee’s “depression” was fully treated and fully stabilised can best be described as doubtful.

30. Furthermore, even if I were to accept that, during the qualification period, Mr Lee’s “depression” was permanent for the purposes of the Impairment Determination, in my view, there is insufficient corroborative medical evidence for a meaningful assessment of the functional impact of the condition on his activities involving mental health function during that period.

31. Therefore, a rating under Impairment Table 5 cannot be assigned.

    VISUAL IMPAIRMENT

32. A Sydney Eye Hospital consultation letter dated 11 March 2013 stated inter alia, as follows:

    VAL 6/36 No reason found for this ↓ V/A. He says V has been poor for 2 yrs - ? sudden loss

    OCT normal minimal lens opacities For VER.

33. In a letter dated 7 September 2015, Dr Lau noted as follows:

    Vitreous syneresis seen 3/7/2012 sydney eye hospital, moderate cataracts and possible other cause of poor vision, Aslos [sic] seen optometrist… 0n [sic]  14/11/2011: visual impairment without glasses were 6/95 both eyes and correctable to 6/12 but checked again to be without glasses <6/60 both eyes and best corrected vision (R) 6/24 (L) 6/36 on 17/6/2014.

34. In a letter dated 3 March 2017, M Ren, optometrist, stated as follows:

    Best corrected visual acuity is RE 6/18 LE Light perception. Wesley told me he has had a retinal detachment and cataracts in his left eye and has rejected surgery. I was unable to ascertain the reason for his decreased VA in his right eye although I noted there was a cataract in his right eye.

    I have recommended him to see the Sydney eye hospital once again or an ophthalmologist for further investigation.

35. In a letter dated 21 March 2017, Dr Lau noted that Mr Lee was again advised to see an eye surgeon at Sydney Eye Hospital to see if a cataract operation would improve his vision. Apparently, Mr Lee was initially reluctant to comply “due to fear” but had agreed to see one and was waiting for an appointment.

36. There is no evidence that Mr Lee attended a subsequent appointment at Sydney Eye Hospital.

37. In the claim for DSP Medical Evidence Checklist, dated 28 December 2014, Dr Lau stated that Mr Lee’s vision has been “impaired for many years and nothing has been planned as he has no intention to have operations”.

38. It would appear that Mr Lee is refusing further investigation and treatment for his impaired vision and, as there is no apparent medical or other compelling reason to refuse further assessment and treatment, his eye condition cannot be considered fully treated and fully stabilised.

39. Therefore, a rating under Impairment Table 12 cannot be assigned.

    HEARING IMPAIRMENT

40. It is agreed that Mr Lee suffers a hearing impairment which is permanent for the purposes of the Impairment Determination. The Respondent contends that this condition attracts nil points or, at a maximum, 5 points under Impairment Table 11.

41. In a report dated 6 February 2018, Mr Yu, audiologist reported that Mr Lee had “severe possible presbyacusis[11] in the (R) ear and profound hearing loss in the (L), and requires hearing aid use to address his daily hearing related communication difficulties”.

    [11] Loss of hearing that gradually occurs in most individuals as they grow older.

42. In the Job Capacity Assessment Report, submitted on 18 December 2018, the assessor stated that Mr Lee now has hearing aids and “was observed by the assessor, to communicate without any difficulties with the interpreter and the assessor, with his hearing aids”.

43. The assessor also noted that in a medical certificate, dated 29 February 2016, Dr Lau noted a diagnosis of “Tinnitus and hearing loss” and symptoms which included “attacks of dizziness”.

44. At the hearing, Mr Lee stated that he was using a mobile telephone and appeared to have no difficulty in communicating with all the parties.

45. On the available evidence, I am satisfied that Mr Lee suffers a mild functional impact on activities involving ear functions and therefore, 5 points under Impairment Table 11 can be assigned.

    HYPERTENSION

46. Mr Lee has suffered from “hypertension” for more than 10 years and it is agreed that this condition is permanent for the purposes of the Impairment Determination.

47. The “hypertension” appears to be controlled with regular medication and there is no convincing evidence before the Tribunal that Mr Lee suffers any functional impairment because of this condition. Therefore, a rating under the Impairment Tables cannot be assigned.

    OTHER MEDICAL CONDITIONS

48. Mr Lee claims that he suffers several other medical conditions that include Dupuytren’s contracture of the right hand, obstructive sleep apnoea, insomnia, cervical spine degenerative disease and mild cerebral vascular disease.

49. In my view, there is insufficient medical evidence for the Tribunal to determine whether, during the qualification period, these conditions were fully diagnosed, fully treated and fully stabilised and therefore, a rating under the Impairment Tables cannot assigned.

    CONCLUSION

50. For reasons set out above, I am satisfied that during the qualification period, Mr Lee had a total rating under the Impairment Tables of no more than 5 points.

51. As Mr Lee did not have an impairment of 20 points or more during the qualification period, he did not satisfy paragraph 94(1)(b) of the Act and therefore, it is not necessary to consider whether he had a continuing inability to work.

    DECISION

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

53. The decision under review is affirmed.

I certify that the preceding 53 (fifty - three) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Senior Member

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

Associate

Dated: 23 September 2020

Date(s) of hearing:	7 September 2020
Applicant:	In Person
Solicitors for the Respondent:	Ms B Dzang, Services Australia